By Autumn Shelton, WV Press News Sharing
CHARLESTON, W.Va. – Members of the legislative Joint Standing Committee on the Judiciary met on Monday to hear information regarding a draft interim bill, which would amend portions of the West Virginia Consumer Credit and Protection Act.
As explained by Counsel Liz Schindzielorz, the proposed amendments would affect civil actions that may be taken by the state’s attorney general. They would decrease the current civil penalty imposed on a creditor for excessive consumer charges from ten times the amount of the excess charge to three times the amount of the excess charge, and change the statute of limitations and statute of repose in subsection two of the current code.
“The new statute of limitations, which will be in subsection 2A, would restrict a civil action being brought . . .to four years after the Attorney General knew, or reasonably should have known, of the violation,” Schindzielorz said. “The new statute of repose, in subdivision 2B, would restrict a civil action being brought . . . for any violation of the act occurring more than 10 years after the violation occurred.”
Lastly, a new subdivision, 2C, would apply “prospectively and only to actions commenced after the effective dates of the amendments,” Schindzielorz concluded.
She then opened the floor for comments and questions from state legislators.
Committee Chair Sen. Charles Trump, R-Morgan, said that this bill is similar to a Senate bill introduced in the 2022 legislative session.
“I am certain the bill did not pass the Senate,” Trump said. “But, it was, at least in the Senate, deemed worthy for study and consideration during the interim period.”
Committee Vice-Chair Del. Tom Fast, R-Fayette, asked Schindzielorz to explain what the Consumer Credit Protection Act is, and how it helps citizens.
Schindzielorz responded that the act is “for the protection of consumers” and it “empowers” the attorney general to go against “bad actors, so to speak” who may be engaging in fraudulent practices.
Sen. Michael Romano, D-Harrison, then spoke about the statute of limitations and the statute of repose.
“Once those dates pass, whatever they are, there can be no civil action or recovery of damages after that date. I mean, those are absolute cutoffs, correct?”
Schindzielorz responded he was correct.
“We are talking about eliminating the 3M v. Hoke Decision, which allowed the discovery rule to apply to these consumer cases for our attorney general to bring,” Romano continued. “A lot of times, the attorney general brings these cases because there can be no case for an individual for various reasons. It might be because it’s too expensive to bring, or there is not a clear cause of action . . . but the attorney general can still avail themselves of conduct that’s violated the statute as it currently stands. Is that right?”
Schindzielorz said, “This does not affect any cause of action that an individual consumer could bring. It actually adopts part of the holding of the 3M v. Hoke case in which the court stated that the discovery rule did apply to these actions, but it layers on top of that a layer of statute of repose.”
“The way I read this bill, in its application to past cases, very likely the tobacco case could not have been brought because that violation was committed years, if not decades, prior, but nobody knew what damage was being caused until years later,” Romano continued. “Likewise, the opioid cases that are running through the courts right now–those cases would have likely been eliminated, from the attorney general’s standpoint, for the consumer violations under this new bill. And, many of the chemical cases – where there is stuff put into the water or the land– all those cases would have been eliminated if the court action was brought more than 10 years after the violation. Would you agree with that?”
While she couldn’t speak to those individual cases, Schindzielorz said that following the new statute, future cases would most likely be barred.
Schindzielorz, in response to additional questioning, also noted there is no exception, no tolling doctrine or agreement that applies for companies who may be good at concealing fraud for longer than 10 years.
Jed Nolan, director of the WVU Veterans Advocacy Law Clinic, also spoke regarding the statute of repose and what it may mean for state’s veterans.
He said he sees a lot of cases regarding potentially defective ear plugs that were used by those in the military.
“Now these veterans have issues with their hearing,” Nolan said, adding that it took years for these issues to become apparent.
“I think the most glaring example of what can happen with the statue of repose, especially as it relates to veterans, is happening in North Carolina down at Camp Lejeune.”
He explained that for over 30 years, toxins were present in the water on base.
“North Carolina has a pretty unique statute of repose that causes issues,” Nolan continued. “There has been an entire generation of veterans who now have bladder cancer, liver cancer, leukemia, lymphoma–a long list of issues that are rising that weren’t readily apparent during that time.”
North Carolina is now trying to pass federal legislation to create a cause of action to get the veterans and their family members relief, Nolan said.
“To me, that strikes me as a cautionary tale for the type of harm a statute of repose can cause to those who have no ability to participate in a marketplace, or heard, through no fault of their own,” Nolan concluded.
Doug Buffington, chief deputy for the state’s attorney general, added that his office will often create a tolling agreement with companies as they investigate a case.
“We do that in conjunction with other states trying to figure out if there was any wrongdoing,” he continued. “I think the concept of how far back we should go, or want to go [with the statute of repose], is more of a policy decision for the legislature to decide.”
“At 10 years, if that is what the body decides, then we would not be able to bring claims farther back than than. Our hope would be that we could find those kinds of cases and investigate them. Having some level of certainty for a business is a fair concept. However, how far, how long is really a topic for this body to decide.”
At the conclusion of the meeting, Sen. Trump stated that no action would be taken on the proposed draft interim bill. However, it would continue to be discussed in future sessions.
The committee also heard reports by two House of Delegates Summer Law Clerks: Alex Leroy, Discussion of WV Freedom of Information Act; and Victoria Sullivan, Discussion of WV Ethics Act