GCA Title 5, Chapter 32
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
CHAPTER 32 TRADE PRACTICES AND CONSUMER PROTECTION
COMMENT : This Chapter 32 governing Trade Practices and Consumer Protection, was completely revised by P.L. 21-18:1. Not only did it update the law to govern unlawful trade practices as they have developed since the original law (P.L. 9-67) was enacted, but it also strengthened the role of the Attorney General as Consumer Advocate, permitting the Attorney General to represent consumers in certain situations.
- Article 1. Consumer Protection —Construction, Remedies, Procedures, and Definitions.
- Article 2. Deceptive Acts and Prohibited Practices.
- Article 3. Regulation of Telemarketing.
- Article 4. Prizes and Gifts.
- Article 5. Homeowners’ Warranties.
- Article 6. Consumer Protection and Right to Choose Cable Television Service Act.
- Article 7. Social Security Number Confidentiality Act.
- Article 8. Gift Cards and Gift Certificates.
ARTICLE 1
CONSUMER PROTECTION — CONSTRUCTION, REMEDIES, PROCEDURES, AND DEFINITIONS
- § 32101. Liberal Construction.
- § 32102. Short Title.
- § 32103. Definitions.
- § 32104. Waivers: Public Policy.
- § 32105. Remedies not Exclusive.
- § 32106. No Jury Trial.
- § 32107. Bad Faith Action.
- § 32108. Construction and Application.
- § 32109. Attorney’s Fees and Costs.
- § 32110. Notice: Offer of Settlement.
- § 32111. Actions by Consumer or Attorney General.
- § 32112. Recovery by Consumer.
- § 32113. Additional Relief.
- § 32114. Exemptions.
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
- § 32115. Intervention by Attorney General.
- § 32116. Attorney General may Represent Consumers.
- § 32117. Promotional Material.
- § 32118. Indemnity.
- § 32119. Injunctive Relief.
- § 32120. Sale not Enforceable.
- § 32121. Limitation.
- § 32122. Voluntary Compliance.
- § 32123. Post-judgment Relief.
- § 32124. Reports and Examinations.
- § 32125. Civil Investigative Demand.
- § 32126. Same. Contents.
- § 32127. Other Remedies Available to Attorney General.
- § 32128. Penalties.
- § 32129. Defenses Limited.
- § 32130. Application of Penalties.
- § 32131. Consumer Protection Fund.
- § 32132. Breach of an Express or Implied Warranty.
§ 32101. Liberal Construction.
This chapter shall be liberally construed so that its beneficial purposes may be accomplished.
§ 32102. Short Title.
This chapter may be cited as the ‘Deceptive Trade Practices - Consumer Protection Act’.
§ 32103. Definitions.
As used in this chapter: (a) Business consumer means an individual, partnership or corporation who seeks or acquires by purchase or lease, any goods or services for commercial or business use. The term does not include the government of Guam. (b) Consumer goods means tangible goods purchased primarily for personal use or for use in the home or on a farm. (c) Consumer services means services purchased primarily for personal use or for use in the home or on a farm or to build, repair, maintain or enhance consumer goods.
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
(d) Consumer means an individual, partnership, association, corporation, or the government of Guam who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of Twenty-Five Million Dollars (25,000,000) or more. (e) Developer is a person who builds or who hires another to build new homes or buildings or condominium units for sale, as provided in this subsection. Any person who, during the three (3) years preceding the enactment of this chapter, built or ordered built, had under construction, or offered for sale three (3) or more new homes, new buildings, or new condominium units, or any combination thereof involving three (3) or more new homes, new buildings, or new condominium units, in which the person had an equity interest, is a developer for purposes of this section. If any member of a partnership meets the definition of a developer, all partners are developers. If any officer or director or majority shareholder of a corporation meets the definition of a developer, the corporation is a developer. If the spouse of any person meets the definition of developer, both husband and wife are developers. Developer does not include lending institutions acting in good faith and not having an equity position in the new home or project. It does not include licensed real estate brokers and their salesmen not having an equity position in the new home, buildings, or condominium units, and who disclosed to the consumer all defects therein then known to them. (f) Documentary material includes the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated. (g) Goods means tangible chattels, real property, land, buildings, homes or condominiums built, purchased or leased for use, investment or resale. Goods also includes stocks,
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
bonds, and securities purchased for investment or resale, funeral plans, annuities, retirement plans, and insurance policies purchased for the protection of a person or property. (h) Home means any building constructed for human habitation, including houses, apartment buildings, time share units, and condominiums. It includes homes built on leasehold property having a term, including all options to renew, in excess of twenty-five (25) years. (i) Knowingly means actual awareness of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. (j) Merchant means a person who deals in goods or services of the kind involved in the transaction or otherwise by his occupation or statements holds himself out as having knowledge or skill peculiar to the practices, services or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skills In addition, a person who purports to be a merchant or holds himself out as a merchant is a merchant for purposes of this section. (k) Non-business consumer is a consumer who purchases goods or services primarily for personal use or use in the home or on a farm. (l) Person means an individual, partnership, corporation, association, or other group, however organized. (m) Retail sale means the purchase of goods or services by an end user. (n) Sale and purchase include in reference to the sale or purchase of goods and services the leasing or rental of property, but do not include short term rentals of real property or leases of real property of ten (10) years or less.
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
(o) Services means work, labor, or service purchased or leased for use, including but not limited to services furnished in connection with the sale or repair of goods. (p) Trade and commerce mean the advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of Guam. (q) Unconscionable action or course of action means an act or practice which is perpetrated by a person in the course of business in the retail sale of consumer goods or services to the detriment of a non-business consumer and which: (1) Takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or (2) Results in a gross disparity between the value received and consideration paid, in a transaction involving the transfer of consideration. (r) Used in reference to tangible goods means tangible goods whose value is diminished because the goods are used, second hand, rebuilt, or reconditioned. (s) Disaster means any typhoon, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, drought, fire, explosion, or other catastrophic event that causes a state of emergency as declared by I Magaʹhågan or Magaʹlåhen Guåhan and may require emergency assistance to save lives, or to protect property, public health and safety, or to avert an emergency. SOURCE: Added by P.L. 21-018:1 (May 10, 1991). Subsection (s) added by P.L. 22-034:2 (Sept. 27, 1993) and amended by P.L 35-074:1 (Mar. 16, 2020).
§ 32104. Waivers: Public Policy.
(a) Any waiver by a consumer of the provisions of this chapter, any warranty, or the provisions of any statute imposing a duty or obligation upon another, is contrary to public policy and
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is unenforceable and void; provided, however, that a waiver not related to a warranty or provision of law which imposes a duty or obligation on another and which by statute cannot be waived is valid and enforceable if the person claiming the benefit of the waiver pleads and proves: (1) The consumer was not in a significantly disparate bargaining position; and (2) The consumer was represented by legal counsel in seeking or acquiring goods or services, other than the purchase or lease for a consideration paid or to be paid that exceeds One Million Dollars (5,000,000) or more according to the most recent financial statement of the business consumer prepared in accordance with generally accepted accounting principles that has knowledge and experience in financial and business matters that enable it to evaluate the merits and risks of a transaction and that it is not in a significantly disparate bargaining position may by written contract prior to payment of any consideration waive the provisions of this chapter without signature of an attorney or the Attorney General. (4) Any waiver of any express warranty, implied warranty, warranty imposed by statute, common law, or operation of law, or similar provision of law set by statute for the protection of a consumer is subject to the provisions of this chapter. (5) If any statute provides that a warranty or other provision of law may not be waived, then notwithstanding the provisions of this section the warranty or provision of law may not be waived. (b) The existence or absence of a disparate bargaining position may not be established as a matter of law solely by evidence of the consumer’s financial position relative to other
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
parties to the contract or by matters contained in a written contract relating to the relative bargaining position of the parties. (c) An agreement to arbitrate constitutes an important waiver of the right of access to the courts. Therefore, as to any agreement to arbitrate executed after the effective date of this chapter, the agreement to arbitrate any matter arising out of the sale of goods or services for any amount of consideration, or any matter or contingency arising therefrom, shall be treated as a waiver of rights under this chapter, is not binding on any consumer unless there is full compliance both with this section and with this chapter, each party is represented by an attorney, and the agreement to arbitrate is signed by the attorneys representing each of the parties.
§ 32105. Remedies Not Exclusive.
(a) The provisions of this chapter are not exclusive. The remedies specified in this chapter for violation of any section of this chapter or for conduct proscribed by any section of this chapter shall be in addition to any other procedures or remedies for any violation or wrongful conduct provided for in any other law. Nothing in this chapter shall limit any other statutory or any common law rights of the Attorney General, or any other person. If any act or practice proscribed by this chapter is also the basis for a cause of action in common law or a violation of another statute, the person may assert the common law or statutory cause of action under the procedures and with the remedies applicable thereto. (b) Where any statute allows attorney’s fees, such fees shall be awarded for services of the Attorney General as in any case brought by private counsel. All such fees shall be paid into the Consumer Protection Fund. The Attorney General shall, by regulation, set the hourly rate or rates for government of Guam attorneys, such rate to be not less than One Hundred Twenty-Five Dollars (125) per hour.
§ 32106. No Jury Trial.
5 GCA GOVERNMENT OPERATIONS CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION
There shall be no right of jury trial in any civil action brought pursuant to this chapter, except to the extent mandated by the Organic Act of Guam and the Constitution of the United States.
§ 32107. Bad Faith Action.
On a finding by the court that an action under this chapter was groundless and brought in bad faith, or brought for the purpose of harassment, the court shall award to the innocent party reasonable and necessary attorney’s fees and court costs.
§ 32108. Construction and Application.
(a) Liberal construction. This chapter shall be liberally construed in favor of the consumer and shall be applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty, and to provide efficient and economical procedures to secure such protection. Nothing herein shall be construed as authorizing any person to conduct business in Guam without all necessary licenses and permits. (b)