Bill Text: NY S02407 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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--B 2019-2020 Regular Sessions IN SENATE January 24, 2019 ___________ Introduced by Sens. COMRIE, KRUEGER, PARKER, SKOUFIS -- 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 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. 17 (2) For the purposes of this section, an act or practice is deceptive 18 when the act or practice misleads or is likely to mislead a person and 19 the person's interpretation is reasonable under the circumstances. 20 (3) For the purposes of this section, an act or practice is abusive 21 when: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02255-04-9S. 2407--B 2 1 (i) it materially interferes with the ability of a person to under- 2 stand a term or condition of a product or service; or 3 (ii) takes unreasonable advantage of: 4 (A) a person's lack of understanding of the material risks, costs, or 5 conditions of the product or service; 6 (B) a person's inability to protect his or her interests in selecting 7 or using a product or service; or 8 (C) a person's reasonable reliance on a person covered by this section 9 to act in his or her interests. 10 (b) Whenever the attorney general shall believe from evidence satis- 11 factory to him or her that any person, firm, corporation or association 12 or agent or employee thereof has engaged in or is about to engage in any 13 of the acts or practices stated to be unfair, unlawful, deceptive or 14 abusive, he or she may bring an action in the name and on behalf of the 15 people of the state of New York to enjoin such unlawful acts or prac- 16 tices and to obtain restitution of any moneys or property obtained 17 directly or indirectly by any such unlawful acts or practices. In such 18 action preliminary relief may be granted under article sixty-three of 19 the civil practice law and rules. Such actions may be brought regard- 20 less of whether or not the underlying violation is directed at individ- 21 uals or businesses, is consumer-oriented, or involves the offering of 22 goods, services, or property for personal, family or household purposes. 23 (c) Before any violation of this section is sought to be enjoined, the 24 attorney general shall be required to give the person against whom such 25 proceeding is contemplated notice by certified mail and an opportunity 26 to show in writing within five business days after receipt of notice why 27 proceedings should not be instituted against him or her, unless the 28 attorney general shall find, in any case in which he or she seeks 29 preliminary relief, that to give such notice and opportunity is not in 30 the public interest. 31 (d) In any such action it shall be a complete defense that the act or 32 practice is, or if in interstate commerce would be, subject to and 33 complies with the rules and regulations of, and the statutes adminis- 34 tered by, the federal trade commission or any official department, divi- 35 sion, commission or agency of the United States as such rules, regu- 36 lations or statutes are interpreted by the federal trade commission or 37 such department, division, commission or agency or the federal courts. 38 (e) Nothing in this section shall apply to any television or radio 39 broadcasting station or to any publisher or printer of a newspaper, 40 magazine or other form of printed advertising, who broadcasts, 41 publishes, or prints the advertisement. 42 (f) In connection with any proposed proceeding under this section, the 43 attorney general is authorized to take proof and make a determination of 44 the relevant facts, and to issue subpoenas in accordance with the civil 45 practice law and rules. 46 (g) This section shall apply to all [deceptive] prohibited acts [or] 47 and practices [declared to be unlawful], whether or not subject to any 48 other law of this state, and shall not supersede, amend or repeal any 49 other law of this state under which the attorney general is authorized 50 to take any action or conduct any inquiry. 51 (h) (1) In addition to the right of action granted to the attorney 52 general pursuant to this section, any person who has been injured by 53 reason of any violation of this section may bring an action in his or 54 her own name to enjoin such unlawful act or practice, an action to 55 recover his or her actual damages [or fifty] and statutory damages of 56 two thousand dollars, [whichever is greater,] or both such actions. SuchS. 2407--B 3 1 actions may be brought regardless of whether or not the underlying 2 violation is consumer-oriented or has a public impact. The court may, in 3 its discretion, increase the award of damages [to an amount not to4exceed three times the actual damages up to one thousand dollars,] if 5 the court finds the defendant willfully or knowingly violated this 6 section. The court [may] shall award reasonable attorney's fees and 7 costs to a prevailing plaintiff. 8 [(j)] (i) For purposes of this section, a "person" is defined as an 9 individual, firm, corporation, partnership, cooperative, association, 10 coalition or any other organization's legal entity, or group of individ- 11 uals however organized; 12 (ii) Given the remedial nature of this section, standing to bring an 13 action under this section, including but not limited to organizational 14 standing and third-party standing, shall be liberally construed and 15 shall be available to the fullest extent otherwise permitted by law. 16 (2) Any person entitled to bring an action under this article may, if 17 the prohibited act or practice has caused damage to others similarly 18 situated, bring an action on behalf of himself or herself and such 19 others to recover actual, statutory and/or punitive damages or obtain 20 other relief as provided for in this article. Thus, any action brought 21 under this subdivision shall comply with article nine of the civil prac- 22 tice law and rules. 23 (3) An organization may bring an action under this section, on behalf 24 of itself or any of its members, or on behalf of those members of the 25 general public who have been injured by reason of any violation of this 26 section, including a violation involving goods or services that the 27 organization purchased or received in order to test or evaluate quali- 28 ties pertaining to use for personal, household, or family purposes. An 29 organization may seek the same remedies and damages that a person may 30 seek under paragraph one of this subdivision. 31 (i) Notwithstanding any law to the contrary, all monies recovered or 32 obtained under this article by a state agency or state official or 33 employee acting in their official capacity shall be subject to subdivi- 34 sion eleven of section four of the state finance law. 35 § 2. This act shall take effect on the sixtieth day after it shall 36 have become a law.
