Colorado § 6-1-110 - Restraining orders - injunctions - assurances of discontinuance.

§ 6-1-110. Restraining orders - injunctions - assurances of discontinuance.

(1) Whenever the attorney general or a district attorney has cause to believe that a person has engaged in or is engaging in a deceptive trade practice described in this article 1, the attorney general or district attorney may apply for and obtain, in an action in the appropriate district court of this state, a temporary restraining order or injunction, or both, pursuant to the Colorado rules of civil procedure, prohibiting the person from continuing the practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by the person of any such deceptive trade practice or that may be necessary to completely compensate or restore to the original position of any person injured by means of any such practice or to prevent any unjust enrichment by any person through the use or employment of a deceptive trade practice.

(2) Where the attorney general or a district attorney has authority to institute a civil action or other proceeding pursuant to this article 1, the attorney general or district attorney may accept, in lieu thereof or as a part thereof, an assurance of discontinuance of a deceptive trade practice described in this article 1. The assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation and any action or proceeding by the attorney general or a district attorney and any amount necessary to restore to any person any money or property that may have been acquired by the alleged violator by means of the deceptive trade practice. An assurance of discontinuance accepted by the attorney general or a district attorney and a stipulation filed with the court as a part of such an action or proceeding is a matter of public record unless the attorney general or the district attorney determines, at the discretion of the attorney general or district attorney, that it will be confidential to the parties to the action or proceeding and to the court and its employees. Upon the filing of a civil action by the attorney general or a district attorney alleging that a confidential assurance of discontinuance or stipulation accepted pursuant to this subsection (2) has been violated, the assurance of discontinuance or stipulation becomes a public record and open to inspection by any person. Proof by a preponderance of the evidence of a violation of an assurance or stipulation constitutes prima facie evidence of a deceptive trade practice for the purposes of any civil action or proceeding brought thereafter by the attorney general or a district attorney, whether a new action or a subsequent motion or petition in any pending action or proceeding.

(3) When the attorney general or a district attorney shows by a preponderance of evidence that a mortgage broker, mortgage originator, mortgage lender, mortgage loan applicant, real estate broker, real estate agent, real estate appraiser, or closing agent, other than a person who provides closing or settlement services subject to regulation by the division of insurance, has continued to participate in the origination of mortgage loans in violation of section 38-40-105, C.R.S., after having been previously enjoined from practices in violation of such section, the attorney general or district attorney may, in addition to any other remedies, apply for and obtain, in the court that has previously issued an injunction, a further injunction against continuing to participate in the business of originating mortgage loans for up to five years.

(4) In addition to any other remedy available under this section, when the attorney general or district attorney has cause to believe that a person has engaged in or is engaging in a deceptive trade practice described in section 6-1-720, the attorney general or district attorney may apply for and obtain, in an action in the appropriate district court of this state, an order forfeiting any tickets obtained, or the proceeds from the resale of any such tickets, in violation of section 6-1-720.

Source: L. 69: p. 374, § 7. C.R.S. 1963: § 55-5-7. L. 77: Entire section amended, p. 349, § 6, effective July 1. L. 86: Entire section amended, p. 446, § 4, effective April 17. L. 87: Entire section amended, p. 358, § 7, effective July 1. L. 88: (2) amended, p. 344, § 2, effective July 1. L. 99: Entire section amended, p. 653, § 6, effective May 18. L. 2002: (3) added, p. 1603, § 4, effective June 7. L. 2007: (3) amended, p. 1723, § 11, effective June 1. L. 2008: (4) added, p. 2230, § 2, effective July 1. L. 2021: (1) and (2) amended, (SB 21-190), ch. 483, p. 3466, § 6, effective July 1, 2023. L. 2026: (1) and (2) amended, (HB 26-1426), ch. 334, p. 1992, § 12, effective August 12.

ANNOTATION

Law reviews. For article, "Trade Secret Litigation: Injunctions and Other Equitable Remedies", see 48 U. Colo. L. Rev. 189 (1977).

Defendant not entitled to a jury trial under the Colorado Consumer Protection Act (CCPA). The CCPA itself does not provide for jury trials, and, because the CCPA is equitable in nature, there is no right under the Colorado rules of civil procedure. People v. Shifrin, 2014 COA 14, 342 P.3d 506.

The authority of the attorney general to bring actions in the appropriate district court, granting the district court subject matter jurisdiction, is not affected if consumers in other states were harmed by the deceptive trade practice. People v. Wunder, 2016 COA 46, 371 P.3d 785.

Procedural due process protections require an evidentiary hearing before a court enters a significant money judgment for restitution under the CCPA. The CCPA authorizes a court to compensate or restore to the original position any person injured by a deceptive trade practice or to prevent any unjust enrichment of any person through the use of a deceptive trade practice, but due process requires advance notice and an opportunity to be heard prior to state action resulting in deprivation of a significant property interest. People v. Wunder, 2016 COA 46, 371 P.3d 785.

Defendant not entitled to setoff under § 13-50.5-105 for damages because the attorney general is not recovering tort damages under the CCPA. People v. Shifrin, 2014 COA 14, 342 P.3d 506.

Where a violation occurs, this section permits the attorney general to apply for either a temporary restraining order or injunction or to seek a voluntary "assurance of discontinuance" from a party alleged to have engaged in deceptive trade practices. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

The attorney general should be granted the opportunity to choose, depending upon the circumstances of the case, between initiating an injunctive proceeding in court or accepting an assurance of discontinuance directly from the alleged violator. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

Where the attorney general has authority to institute a civil action, he may accept an assurance of discontinuance of the deceptive trade practice in lieu thereof, giving him the option, whenever he has cause to believe that a person has engaged in a deceptive trade practice, of either filing an action in court against the alleged violator or accepting his assurance that he will discontinue the illegal practice. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

When the attorney general seeks an injunction he is not demanding that the defendant be punished with a penal sanction, but rather that the defendant be restrained from acting unlawfully in the future, so it is unnecessary that this section provide absolutely precise warning before its equitable sanctions are applied. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

Moreover, the failure to set forth criteria to assist the attorney general in choosing between the two methods of enforcement set out in this section is not a denial of equal protection in violation of the Colorado Constitution, for, while a legislative body may not delegate the power to make or define a law, it may delegate the power, authority, and discretion as to the execution and enforcement of the law. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

So long as the attorney general does not unreasonably abuse his discretion, his right to decide between accepting an assurance of discontinuance or initiating a court action will not be overturned on equal protection grounds. People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 493 P.2d 660 (1972).

Injunctive relief is unavailable in private actions under the CCPA. Allstate Ins. Co. v. Cruz, 733 F. Supp. 3d 1098 (D. Colo. 2024).

Remedies not limited. Subsection (1) does not restrict the attorney general's choice of remedies to an election between injunctive relief and the assurances of discontinuance provided for in subsection (2). W. Food Plan, Inc. v. District Court, 198 Colo. 213, 598 P.2d 1038 (1979).

Benefit of the bargain approach to restitution was a reasonable method for compensating injured consumers under this section. Under the plain language of this section, a court is not limited to the common law definition of restitution. People v. Shifrin, 2014 COA 14, 342 P.3d 506.

Attorney general may seek restitution separate from injunction for violations of this act. W. Food Plan, Inc. v. District Court, 198 Colo. 213, 598 P.2d 1038 (1979).

Section vests in trial court power to suppress proceedings brought under this act, and to keep the suppression in force until such time as the conditions set forth in the consent decree may be violated by the defendant. People ex rel. MacFarlane v. Delaware Corp., 626 P.2d 1144 (Colo. App. 1980).

Applied in People ex rel. MacFarlane v. Am. Banco Corp., 194 Colo. 32, 570 P.2d 825 (1977).