(1) (a) A defending party has a right of action against a filing party who initiated a website access lawsuit against the defending party if the website access lawsuit is abusive. (b) The attorney general may bring an action under Subsection (1)(a) on behalf of a defending party. (2) (a) A trier of fact shall find a website access lawsuit is abusive under this section if the trier of fact determines by a preponderance of evidence that the filing party's primary purpose of the website access lawsuit is to obtain monetary payment from the defending party rather than to remedy a website access violation. (b) In determining whether a website access lawsuit is abusive under Subsection (2)(a), a trier of fact shall consider the totality of the circumstances, including: (i) the number of substantially similar actions filed by the same filing party; (ii) whether the filing party has previously filed a frivolous lawsuit or other website access lawsuit that a trier of fact determined to be abusive; (iii) the defending party's ability to engage in the website access lawsuit; (iv) the defending party's ability to cure the website access violation; (v) whether the action was filed in a jurisdiction or venue that makes it unreasonably difficult for the defending party to defend; (vi) whether the filing party filing the website access lawsuit is a resident or licensed to practice law in this state; (vii) evidence that the filing party filed the website access lawsuit with the primary purpose to obtain monetary payment from the defending party rather than to remedy a website access violation; and (viii) any other evidence that the website access lawsuit is abusive. (3) There is a rebuttable presumption that the website access lawsuit is abusive if the court determines that a defending party bringing an action under this section: (a) attempted, in good faith, to cure the website access violation within 30 days after the day on which the defending party received written notice with sufficient detail to identify and cure the website access violation; or (b) cured the website access violation within 90 days after the day on which the defending party received written notice with sufficient detail to identify and cure the website access violation. (4) A trier of fact may not determine whether the website access lawsuit is abusive until the time periods described in Subsection (3) expire or the court determines that the website access violation is cured, whichever occurs first. (5) (a) If a trier of fact determines that the website access lawsuit is abusive, the court may: (i) award reasonable attorney fees and costs to the defending party for: (A) bringing the action described in Subsection (2); and (B) defending against the website access lawsuit; (ii) award punitive damages to the defending party; and (iii) impose sanctions upon the filing party under the Utah Rules of Civil Procedure. (b) Any punitive damages or monetary sanctions imposed by the court under Subsection (5)(a)(ii) or (5)(a)(iii) may not exceed three times the amount awarded under Subsection (5)(a)(i).
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