A00679 Summary:

BILL NOA00679C
 
SAME ASSAME AS S02407-C
 
SPONSORNiou
 
COSPNSRSteck, Barron, Kim, Dinowitz, Epstein, Frontus, Richardson, D'Urso, Fall, Reyes, Simotas, Mosley, Simon, Quart, Solages, Bichotte, Barnwell, Gottfried, Jacobson, Rosenthal L, Abbate, Otis, Cruz, Blake, Montesano, DeStefano, Jaffee, Weprin, Lawrence, Ortiz, Taylor, Walker, Reilly, Dickens, Rivera, Hevesi, Glick
 
MLTSPNSREnglebright, Lentol, Sayegh
 
Amd 349, Gen Bus L
 
Relates to standing for persons affected by prohibited or unlawful business practices and expands prohibited acts to include unfair, deceptive or abusive acts.
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A00679 Actions:

BILL NOA00679C
 
01/09/2019referred to consumer affairs and protection
05/20/2019amend and recommit to consumer affairs and protection
05/20/2019print number 679a
05/22/2019amend and recommit to consumer affairs and protection
05/22/2019print number 679b
05/30/2019reported referred to codes
06/04/2019reported referred to rules
06/16/2019amend and recommit to rules 679c
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A00679 Committee Votes:

CONSUMER AFFAIRS AND PROTECTION Chair:DenDekker DATE:05/30/2019AYE/NAY:12/3 Action: Favorable refer to committee Codes
DenDekkerAyeMikulinNay
AbbateAyeMcDonoughExcused
QuartAyeMillerNay
BuchwaldAyePalumboNay
SimonAye
DilanAye
SeawrightAye
RozicAye
NiouAye
Pheffer AmatoAye
WilliamsAye
FallAye

CODES Chair:Lentol DATE:06/04/2019AYE/NAY:14/8 Action: Favorable refer to committee Rules
LentolAyeRaNay
SchimmingerNayGiglioNay
PretlowAyeMontesanoNay
CookAyeMorinelloNay
CymbrowitzAyePalumboNay
O'DonnellAyeGarbarinoNay
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyNay
SeawrightAye
RosenthalAye

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A00679 Floor Votes:

There are no votes for this bill in this legislative session.
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A00679 Text:



 
                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.
                                                                   LBD02255-09-9

        A. 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 to
    15  exceed 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  him

        A. 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.
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A00679 LFIN:

 NO LFIN
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A00679 Chamber Video/Transcript:

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