Bill Text: NY A00679 | 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: Strong Partisan Bill (Democrat 42-4)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A00679 Detail]
Download: New_York-2019-A00679-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 679--C 2019-2020 Regular Sessions IN ASSEMBLY (Prefiled) January 9, 2019 ___________ Introduced by M. of A. NIOU, STECK, BARRON, KIM, DINOWITZ, EPSTEIN, FRONTUS, RICHARDSON, D'URSO, FALL, REYES, SIMOTAS, MOSLEY, SIMON, QUART, SOLAGES, BICHOTTE, BARNWELL, GOTTFRIED, JACOBSON, L. ROSENTHAL, ABBATE, OTIS, CRUZ, BLAKE, MONTESANO, DeSTEFANO, JAFFEE, WEPRIN, LAWRENCE, ORTIZ, TAYLOR, WALKER, REILLY, DICKENS, RIVERA -- Multi- Sponsored by -- M. of A. ENGLEBRIGHT, LENTOL, SAYEGH -- read once and referred to the Committee on Consumer Affairs and Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules 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: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02255-09-9A. 679--C 2 1 (i) it causes or is likely to cause substantial injury, the injury is 2 not reasonably avoidable, and the injury is not outweighed by counter- 3 vailing benefits; or 4 (ii) it takes unreasonable advantage of the inability of a person to 5 protect his or her interests because of the person's infirmity, illiter- 6 acy or inability to understand the language of an agreement. 7 (2) For the purposes of this section, an act or practice is deceptive 8 when the act or practice misleads or is likely to mislead a person and 9 the person's interpretation is reasonable under the circumstances. 10 (3) For the purposes of this section, an act or practice is abusive 11 when: 12 (i) it materially interferes with the ability of a person to under- 13 stand a term or condition of a product or service; or 14 (ii) takes unreasonable advantage of: 15 (A) a person's lack of understanding of the material risks, costs, or 16 conditions of the product or service; 17 (B) a person's inability to protect his or her interests in selecting 18 or using a product or service; or 19 (C) a person's reasonable reliance on a person covered by this section 20 to act in his or her interests. 21 (b) Whenever the attorney general shall believe from evidence satis- 22 factory to him or her that any person, firm, corporation or association 23 or agent or employee thereof has engaged in or is about to engage in any 24 of the acts or practices stated to be unfair, unlawful, deceptive or 25 abusive, he or she may bring an action in the name and on behalf of the 26 people of the state of New York to enjoin such unlawful acts or prac- 27 tices and to obtain restitution of any moneys or property obtained 28 directly or indirectly by any such unlawful acts or practices. In such 29 action preliminary relief may be granted under article sixty-three of 30 the civil practice law and rules. Such actions may be brought regard- 31 less of whether or not the underlying violation is directed at individ- 32 uals or businesses, is consumer-oriented, or involves the offering of 33 goods, services, or property for personal, family or household purposes. 34 (c) Before any violation of this section is sought to be enjoined, the 35 attorney general shall be required to give the person against whom such 36 proceeding is contemplated notice by certified mail and an opportunity 37 to show in writing within five business days after receipt of notice why 38 proceedings should not be instituted against him or her, unless the 39 attorney general shall find, in any case in which he or she seeks 40 preliminary relief, that to give such notice and opportunity is not in 41 the public interest. 42 (d) In any such action it shall be a complete defense that the act or 43 practice is, or if in interstate commerce would be, subject to and 44 complies with the rules and regulations of, and the statutes adminis- 45 tered by, the federal trade commission or any official department, divi- 46 sion, commission or agency of the United States as such rules, regu- 47 lations or statutes are interpreted by the federal trade commission or 48 such department, division, commission or agency or the federal courts. 49 (e) Nothing in this section shall apply to any television or radio 50 broadcasting station or to any publisher or printer of a newspaper, 51 magazine or other form of printed advertising, who broadcasts, 52 publishes, or prints the advertisement. 53 (f) In connection with any proposed proceeding under this section, the 54 attorney general is authorized to take proof and make a determination of 55 the relevant facts, and to issue subpoenas in accordance with the civil 56 practice law and rules.A. 679--C 3 1 (g) This section shall apply to all [deceptive] prohibited acts [or] 2 and practices [declared to be unlawful], whether or not subject to any 3 other law of this state, and shall not supersede, amend or repeal any 4 other law of this state under which the attorney general is authorized 5 to take any action or conduct any inquiry. 6 (h) (1) In addition to the right of action granted to the attorney 7 general pursuant to this section, any person who has been injured by 8 reason of any violation of this section may bring an action in his or 9 her own name to enjoin such unlawful act or practice, an action to 10 recover his or her actual damages [or fifty] and statutory damages of 11 one thousand dollars, [whichever is greater,] or both such actions. Such 12 actions may be brought regardless of whether or not the underlying 13 violation is consumer-oriented or has a public impact. The court may, in 14 its discretion, increase the award of damages [to an amount not to15exceed three times the actual damages up to one thousand dollars,] if 16 the court finds the defendant willfully or knowingly violated this 17 section. The court [may] shall award reasonable attorney's fees and 18 costs to a prevailing plaintiff. 19 [(j)] (i) For purposes of this section, a "person" is defined as an 20 individual, firm, corporation, partnership, cooperative, association, 21 coalition or any other organization's legal entity, or group of individ- 22 uals however organized; 23 (ii) For purposes of this section "non-profit organization" is defined 24 as an organization that is (1) not an individual; and (2) is neither 25 organized nor operating in whole, or in significant part, for profit; 26 (iii) Given the remedial nature of this section, standing to bring an 27 action under this section, including but not limited to organizational 28 standing and third-party standing, shall be liberally construed and 29 shall be available to the fullest extent otherwise permitted by law. 30 (2) Any individual or non-profit organization entitled to bring an 31 action under this article may, if the prohibited act or practice has 32 caused damage to others similarly situated, bring an action on behalf of 33 himself or herself and such others to recover actual, statutory and/or 34 punitive damages or obtain other relief as provided for in this article. 35 Statutory damages under this section will be limited to (i) such amount 36 for each named plaintiff as could be recovered under paragraph one of 37 this subdivision; and (ii) such amount as the court may allow for all 38 other class members without regard to a minimum individual recovery, not 39 to exceed the lesser of one million dollars or two per centum of the net 40 worth of the business. Thus, any action brought under this subdivision 41 shall comply with article nine of the civil practice law and rules. 42 (3) A non-profit organization may bring an action under this section, 43 on behalf of itself or any of its members, or on behalf of those members 44 of the general public who have been injured by reason of any violation 45 of this section, including a violation involving goods or services that 46 the non-profit organization purchased or received in order to test or 47 evaluate qualities pertaining to use for personal, household, or family 48 purposes. A non-profit organization may seek the same remedies and 49 damages that a person may seek under paragraph one of this subdivision. 50 (4) Before any violation of this section is sought to be enjoined, the 51 person bringing the action shall be required to give the person against 52 whom such action is contemplated notice by certified mail, to the place 53 where the transaction occurred or to the principal place of business 54 within the state of the person against whom such action is contemplated, 55 and an opportunity to show in writing within ten business days after 56 mailing of notice why proceedings should not be instituted against himA. 679--C 4 1 or her, unless, in any case in which the person seeks preliminary 2 relief, the giving of such notice and opportunity would cause immediate 3 and irreparable injury, loss or damages. 4 (i) Notwithstanding any law to the contrary, all monies recovered or 5 obtained under this article by a state agency or state official or 6 employee acting in their official capacity shall be subject to subdivi- 7 sion eleven of section four of the state finance law. 8 § 2. This act shall take effect on the sixtieth day after it shall 9 have become a law.