Bill Text: NY A09824 | 2017-2018 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to standing for persons affected by prohibited or unlawful business practices and expands prohibited acts to include unfair, unlawful, deceptive or abusive acts.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2018-04-18 - print number 9824a [A09824 Detail]

Download: New_York-2017-A09824-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          9824
                   IN ASSEMBLY
                                    February 14, 2018
                                       ___________
        Introduced  by  M. of A. NIOU -- read once and referred to the Committee
          on Consumer Affairs and Protection
        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, unlawful or deceptive
     7  acts or practices in the conduct of any business, trade or  commerce  or
     8  in  the  furnishing  of  any  service [in this state are hereby declared
     9  unlawful].
    10    (1) For the purposes of this section, an act  or  practice  is  unfair
    11  when:
    12    (i)  it causes or is likely to cause substantial injury, the injury is
    13  not reasonably avoidable, and the injury is not outweighed  by  counter-
    14  vailing benefits; or
    15    (ii)  it  takes unreasonable advantage of the inability of a person to
    16  protect his or her interests because of the person's infirmity, illiter-
    17  acy or inability to understand the language of an agreement.
    18    (2) For the purposes of this section, an act or practice  is  unlawful
    19  when it violates any law be it civil or criminal, federal, state, munic-
    20  ipal,  statutory,  administrative  or  any  other law applicable in this
    21  state.
    22    (3) For the purposes of this section, an act or practice is  deceptive
    23  when  the  act or practice misleads or is likely to mislead a person and
    24  the person's interpretation is reasonable under the circumstances.
    25    (b) Whenever the attorney general shall believe from  evidence  satis-
    26  factory  to him or her that any person, firm, corporation or association
    27  or agent or employee thereof has engaged in or is about to engage in any
    28  of the acts or practices stated to be unfair, unlawful or deceptive,  he
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14112-01-8
        A. 9824                             2
     1  or  she  may  bring an action in the name and on behalf of the people of
     2  the state of New York to enjoin such unlawful acts or practices  and  to
     3  obtain  restitution of any moneys or property obtained directly or indi-
     4  rectly  by  any such unlawful acts or practices. In such action prelimi-
     5  nary relief may be granted under article sixty-three of the civil  prac-
     6  tice law and rules.
     7    (c) Before any violation of this section is sought to be enjoined, the
     8  attorney  general shall be required to give the person against whom such
     9  proceeding is contemplated notice by certified mail and  an  opportunity
    10  to show in writing within five business days after receipt of notice why
    11  proceedings  should  not  be  instituted  against him or her, unless the
    12  attorney general shall find, in any  case  in  which  he  or  she  seeks
    13  preliminary  relief,  that to give such notice and opportunity is not in
    14  the public interest.
    15    (d) [In any such action it shall be a complete defense that the act or
    16  practice is, or if in interstate  commerce  would  be,  subject  to  and
    17  complies  with  the  rules and regulations of, and the statutes adminis-
    18  tered by, the federal trade commission or any official department, divi-
    19  sion, commission or agency of the United States  as  such  rules,  regu-
    20  lations  or  statutes are interpreted by the federal trade commission or
    21  such department, division, commission or agency or the federal courts.
    22    (e)] Nothing in this section shall apply to any  television  or  radio
    23  broadcasting  station  or  to  any  publisher or printer of a newspaper,
    24  magazine  or  other  form  of  printed  advertising,   who   broadcasts,
    25  publishes, or prints the advertisement.
    26    [(f)]  (e)  In  connection  with  any  proposed  proceeding under this
    27  section, the attorney general is authorized to take  proof  and  make  a
    28  determination  of  the relevant facts, and to issue subpoenas in accord-
    29  ance with the civil practice law and rules.
    30    [(g)] (f) This section shall apply to all [deceptive] prohibited  acts
    31  [or]  and practices [declared to be unlawful], whether or not subject to
    32  any other law of this state, and shall not supersede,  amend  or  repeal
    33  any  other law of this state under which the attorney general is author-
    34  ized to take any action or conduct any inquiry.
    35    [(h)] (g) (1) In addition to the right of action granted to the attor-
    36  ney general pursuant to this section, any person who has been injured by
    37  reason of any violation of this section may bring an action  in  his  or
    38  her  own  name  to  enjoin  such  unlawful act or practice, an action to
    39  recover his or her actual damages [or fifty] and  statutory  damages  of
    40  two thousand dollars, [whichever is greater,] or both such actions. Such
    41  actions  may  be  brought  regardless  of  whether or not the underlying
    42  violation is consumer-oriented or has a public impact. The court may, in
    43  its discretion, increase the award of  damages  [to  an  amount  not  to
    44  exceed  three  times  the actual damages up to one thousand dollars], if
    45  the court finds the  defendant  willfully  or  knowingly  violated  this
    46  section.  The  court  [may]  shall  award reasonable attorney's fees and
    47  costs to a prevailing plaintiff.
    48    (i) For purposes of this section, a "person" is defined as an individ-
    49  ual, firm, corporation, partnership, cooperative, association, coalition
    50  or any other organization's legal entity, or group of individuals howev-
    51  er organized;
    52    (ii) Given the remedial nature of this section, standing to  bring  an
    53  action  under  this section, including but not limited to organizational
    54  standing and third-party standing,  shall  be  liberally  construed  and
    55  shall be available to the fullest extent otherwise permitted by law.
        A. 9824                             3
     1    (2)  Any person entitled to bring an action under this article may, if
     2  the prohibited act or practice has caused  damage  to  others  similarly
     3  situated,  bring  an  action  on  behalf  of himself or herself and such
     4  others to recover actual, statutory and/or punitive  damages  or  obtain
     5  other  relief  as provided for in this article. Thus, any action brought
     6  under this subdivision shall comply with article nine of the civil prac-
     7  tice law and rules.
     8    (3) An organization may bring an action under this section, on  behalf
     9  of  itself  or  any of its members, or on behalf of those members of the
    10  general public who have been injured by reason of any violation of  this
    11  section,  including  a  violation  involving  goods or services that the
    12  organization purchased or received in order to test or  evaluate  quali-
    13  ties  pertaining to use for personal, household, or family purposes.  An
    14  organization may seek the same remedies and damages that  a  person  may
    15  seek under paragraph one of this subdivision.
    16    [(j)]  (h)  Notwithstanding any law to the contrary, all monies recov-
    17  ered or obtained under this article by a state agency or state  official
    18  or employee acting in their official capacity shall be subject to subdi-
    19  vision eleven of section four of the state finance law.
    20    §  2.  Section  389-c of the general business law, as added by chapter
    21  309 of the laws of 1996, is amended to read as follows:
    22    § 389-c. Special application of section three  hundred  forty-nine  of
    23  this  chapter.  In addition to the power set forth in subdivision (b) of
    24  section three hundred forty-nine of this chapter, the  attorney  general
    25  shall  have the power to assess a fine of up to one thousand dollars for
    26  each violation of this article[; and the defense under  subdivision  (d)
    27  of  section three hundred forty-nine of this chapter shall not be avail-
    28  able in connection with any violation of this article].
    29    § 3. This act shall take effect on the sixtieth  day  after  it  shall
    30  have become a law.