Colorado has been fortunate that attorneys general in our state generally view their role in the traditional sense as the state's chief law enforcement officer — rather than as judge, jury and execution as exemplified by activist attorneys general, a la Eliot Spitzer, the disgraced former Attorney General of New York who sued anything with a pulse or bank account.
Senate Bill 68 (sponsored by Sen. Morgan Carroll) seeks to vastly expand the attorney general's authority into the legislative arena, circumventing the legislature's policy-making authority by empowering the attorney general to unilaterally define unfair or deceptive trade practices.
Worse still, the bill would transform the Colorado Consumer Protect Act from a tool that can punish dishonest businesses that demonstrate a pattern of deceiving the public into a scatter-gun system of jackpot justice that allows any dissatisfied customer to claim that his or her individual claim is evidence of a broader "public impact."
While claims made by plaintiffs and their attorneys would be taken at face value, business who find themselves accused would be required to prove their innocence and to prove a negative — that the allegations in question, no matter how absurd, were unique to the case in question. How would you prove that you didn't do something wrong, neither in the case in question nor any other time. What if the allegations are plainly false? If you think this sounds reminiscent of "have you stopped beating your wife?" you are correct.
By taking plaintiffs' "public impact" claims at face value, courts put businesses that may have made a simple error or employed a reckless employee in the position of paying not just simple damages, but treble damages and attorneys fees. Plaintiffs' lawyers are licking their chops because nothing strikes fear in the heart of a business — providing leverage for a quick out-of-court settlement — than facing outrageous claims which could be automatically tripled.
Senate Bill 68 turns the CCPA into a plaintiffs attorney's arsenal, exponentially exacerbating the threat of litigation against Colorado employers, manufacturers and retailers.