Bill Text: NY S02407 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to standing for persons affected by prohibited or unlawful business practices and expands prohibited acts to include unfair, deceptive or abusive acts.
Spectrum: Partisan Bill (Democrat 21-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CONSUMER PROTECTION [S02407 Detail]
Download: New_York-2019-S02407-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2407--C Cal. No. 1093 2019-2020 Regular Sessions IN SENATE January 24, 2019 ___________ Introduced by Sens. COMRIE, BAILEY, BIAGGI, GIANARIS, HOYLMAN, JACKSON, KAVANAGH, KRUEGER, LIU, MONTGOMERY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVEDA, SKOUFIS, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the general business law, in relation to standing for persons affected by prohibited or unlawful business practices The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 349 of the general business law, as added by chap- 2 ter 43 of the laws of 1970, subdivision (h) as amended by chapter 157 of 3 the laws of 1984, and subdivision (j) as added by section 6 of part HH 4 of chapter 55 of the laws of 2014, is amended to read as follows: 5 § 349. [Deceptive acts] Prohibited acts and practices unlawful. (a) 6 [Deceptive] This section prohibits any unfair, deceptive or abusive acts 7 or practices in the conduct of any business, trade or commerce or in the 8 furnishing of any service [in this state are hereby declared unlawful]. 9 (1) For the purposes of this section, an act or practice is unfair 10 when: 11 (i) it causes or is likely to cause substantial injury, the injury is 12 not reasonably avoidable, and the injury is not outweighed by counter- 13 vailing benefits; or 14 (ii) it takes unreasonable advantage of the inability of a person to 15 protect his or her interests because of the person's infirmity, illiter- 16 acy or inability to understand the language of an agreement. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02255-08-9S. 2407--C 2 1 (2) For the purposes of this section, an act or practice is deceptive 2 when the act or practice misleads or is likely to mislead a person and 3 the person's interpretation is reasonable under the circumstances. 4 (3) For the purposes of this section, an act or practice is abusive 5 when: 6 (i) it materially interferes with the ability of a person to under- 7 stand a term or condition of a product or service; or 8 (ii) takes unreasonable advantage of: 9 (A) a person's lack of understanding of the material risks, costs, or 10 conditions of the product or service; 11 (B) a person's inability to protect his or her interests in selecting 12 or using a product or service; or 13 (C) a person's reasonable reliance on a person covered by this section 14 to act in his or her interests. 15 (b) Whenever the attorney general shall believe from evidence satis- 16 factory to him or her that any person, firm, corporation or association 17 or agent or employee thereof has engaged in or is about to engage in any 18 of the acts or practices stated to be unfair, unlawful, deceptive or 19 abusive, he or she may bring an action in the name and on behalf of the 20 people of the state of New York to enjoin such unlawful acts or prac- 21 tices and to obtain restitution of any moneys or property obtained 22 directly or indirectly by any such unlawful acts or practices. In such 23 action preliminary relief may be granted under article sixty-three of 24 the civil practice law and rules. Such actions may be brought regard- 25 less of whether or not the underlying violation is directed at individ- 26 uals or businesses, is consumer-oriented, or involves the offering of 27 goods, services, or property for personal, family or household purposes. 28 (c) Before any violation of this section is sought to be enjoined, the 29 attorney general shall be required to give the person against whom such 30 proceeding is contemplated notice by certified mail and an opportunity 31 to show in writing within five business days after receipt of notice why 32 proceedings should not be instituted against him or her, unless the 33 attorney general shall find, in any case in which he or she seeks 34 preliminary relief, that to give such notice and opportunity is not in 35 the public interest. 36 (d) In any such action it shall be a complete defense that the act or 37 practice is, or if in interstate commerce would be, subject to and 38 complies with the rules and regulations of, and the statutes adminis- 39 tered by, the federal trade commission or any official department, divi- 40 sion, commission or agency of the United States as such rules, regu- 41 lations or statutes are interpreted by the federal trade commission or 42 such department, division, commission or agency or the federal courts. 43 (e) Nothing in this section shall apply to any television or radio 44 broadcasting station or to any publisher or printer of a newspaper, 45 magazine or other form of printed advertising, who broadcasts, 46 publishes, or prints the advertisement. 47 (f) In connection with any proposed proceeding under this section, the 48 attorney general is authorized to take proof and make a determination of 49 the relevant facts, and to issue subpoenas in accordance with the civil 50 practice law and rules. 51 (g) This section shall apply to all [deceptive] prohibited acts [or] 52 and practices [declared to be unlawful], whether or not subject to any 53 other law of this state, and shall not supersede, amend or repeal any 54 other law of this state under which the attorney general is authorized 55 to take any action or conduct any inquiry.S. 2407--C 3 1 (h) (1) In addition to the right of action granted to the attorney 2 general pursuant to this section, any person who has been injured by 3 reason of any violation of this section may bring an action in his or 4 her own name to enjoin such unlawful act or practice, an action to 5 recover his or her actual damages [or fifty] and statutory damages of 6 one thousand dollars, [whichever is greater,] or both such actions. Such 7 actions may be brought regardless of whether or not the underlying 8 violation is consumer-oriented or has a public impact. The court may, in 9 its discretion, increase the award of damages [to an amount not to10exceed three times the actual damages up to one thousand dollars,] if 11 the court finds the defendant willfully or knowingly violated this 12 section. The court [may] shall award reasonable attorney's fees and 13 costs to a prevailing plaintiff. 14 [(j)] (i) For purposes of this section, a "person" is defined as an 15 individual, firm, corporation, partnership, cooperative, association, 16 coalition or any other organization's legal entity, or group of individ- 17 uals however organized; 18 (ii) For purposes of this section "non-profit organization" is defined 19 as an organization that is (1) not an individual; and (2) is neither 20 organized nor operating in whole, or in significant part, for profit; 21 (iii) Given the remedial nature of this section, standing to bring an 22 action under this section, including but not limited to organizational 23 standing and third-party standing, shall be liberally construed and 24 shall be available to the fullest extent otherwise permitted by law. 25 (2) Any individual or non-profit organization entitled to bring an 26 action under this article may, if the prohibited act or practice has 27 caused damage to others similarly situated, bring an action on behalf of 28 himself or herself and such others to recover actual, statutory and/or 29 punitive damages or obtain other relief as provided for in this article. 30 Statutory damages under this section will be limited to (i) such amount 31 for each named plaintiff as could be recovered under paragraph one of 32 this subdivision; and (ii) such amount as the court may allow for all 33 other class members without regard to a minimum individual recovery, not 34 to exceed the lesser of one million dollars or two per centum of the net 35 worth of the business. Thus, any action brought under this subdivision 36 shall comply with article nine of the civil practice law and rules. 37 (3) A non-profit organization may bring an action under this section, 38 on behalf of itself or any of its members, or on behalf of those members 39 of the general public who have been injured by reason of any violation 40 of this section, including a violation involving goods or services that 41 the non-profit organization purchased or received in order to test or 42 evaluate qualities pertaining to use for personal, household, or family 43 purposes. A non-profit organization may seek the same remedies and 44 damages that a person may seek under paragraph one of this subdivision. 45 (4) Before any violation of this section is sought to be enjoined, the 46 person bringing the action shall be required to give the person against 47 whom such action is contemplated notice by certified mail, to the place 48 where the transaction occurred or to the principal place of business 49 within the state of the person against whom such action is contemplated, 50 and an opportunity to show in writing within ten business days after 51 mailing of notice why proceedings should not be instituted against him 52 or her, unless, in any case in which the person seeks preliminary 53 relief, the giving of such notice and opportunity would cause immediate 54 and irreparable injury, loss or damages. 55 (i) Notwithstanding any law to the contrary, all monies recovered or 56 obtained under this article by a state agency or state official orS. 2407--C 4 1 employee acting in their official capacity shall be subject to subdivi- 2 sion eleven of section four of the state finance law. 3 § 2. This act shall take effect on the sixtieth day after it shall 4 have become a law.
