Enacts the "Consumer and Small business Protection Act"; relates to standing for persons affected by prohibited or unlawful business practices; expands prohibited acts to include unfair, deceptive or abusive acts.
STATE OF NEW YORK
________________________________________________________________________
795
2023-2024 Regular Sessions
IN SENATE
January 6, 2023
___________
Introduced by Sens. COMRIE, BAILEY, BRISPORT, BROUK, CLEARE, GIANARIS,
GOUNARDES, HINCHEY, HOYLMAN, JACKSON, KAVANAGH, KRUEGER, LIU, MAY,
MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SANDERS, SKOUFIS, THOMAS --
read twice and ordered printed, and when printed to be committed to
the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to enacting the
"Consumer and Small business Protection Act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "Consumer
2 and Small business Protection Act (CSPA)".
3 § 2. Legislative findings and intent. The Legislature declares that
4 the State has a responsibility to protect individuals and businesses
5 within the State from unfair and abusive business acts and practices.
6 The Legislature further declares that the State's law, which guarded
7 only against deceptive business acts and practices, has been insuffi-
8 cient to meet this responsibility and has become out of date as other
9 states' laws provide far greater protections. Consumers and small busi-
10 nesses have long been vulnerable to unscrupulous business practices that
11 are unfair and abusive without being expressly deceptive. The State must
12 not allow bad actors to peddle predatory products and services as long
13 as they are clever enough not to get caught in a lie. To that end, and
14 to better level the playing field for the State's many honest busi-
15 nesses, this legislation defines unfair and abusive acts and practices
16 expansively.
17 The State must also ensure that this protection covers small busi-
18 nesses, which are frequent targets of predatory loans and other forms of
19 exploitation, along with all consumer transactions. This legislation
20 therefore rejects the limitation, imposed by courts, that prohibited
21 conduct be "consumer oriented," have an impact on the public at large,
22 or be part of a broader pattern. Consumers and small businesses are
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02751-01-3
S. 795 2
1 entitled to redress whenever they are harmed by deceptive, unfair, or
2 abusive conduct.
3 Finally, for any of these protections to be meaningful, the State must
4 ensure that the remedies for prohibited conduct provide an effective
5 deterrent. This legislation therefore updates the statutory damages for
6 violations for the first time in decades, from $50 to $1,000, and allows
7 meaningful punitive damages for particularly egregious behavior. The
8 Legislature recognizes that unfair, deceptive, and abusive practices
9 have a particular impact on poor individuals, people of color, and those
10 affected by natural disasters and health emergencies, including the
11 COVID-19 pandemic. For this reason, the State must ensure that limited
12 resources not prevent individuals and small businesses from seeking
13 remedies. This legislation therefore opens access to justice by making
14 recovery of attorney's fees mandatory for a prevailing plaintiff and
15 authorizing class actions.
16 § 3. Section 349 of the general business law, as added by chapter 43
17 of the laws of 1970, subdivision (h) as amended by chapter 157 of the
18 laws of 1984, and subdivision (j) as added by section 6 of part HH of
19 chapter 55 of the laws of 2014, is amended to read as follows:
20 § 349. [Deceptive acts] Prohibited acts and practices unlawful. (a)
21 [Deceptive] This section prohibits any unfair, deceptive or abusive acts
22 or practices in the conduct of any business, trade or commerce or in the
23 furnishing of any service [in this state are hereby declared unlawful].
24 (1) For the purposes of this section, an act or practice is unfair
25 when it causes or is likely to cause substantial injury, the injury is
26 not reasonably avoidable, and the injury is not outweighed by counter-
27 vailing benefits.
28 (2) For the purposes of this section, an act or practice is deceptive
29 when the act or practice misleads or is likely to mislead a person and
30 the person's interpretation is reasonable under the circumstances.
31 (3) For the purposes of this section, an act or practice is abusive
32 when:
33 (i) it materially interferes with the ability of a person to under-
34 stand a term or condition of a product or service; or
35 (ii) takes unreasonable advantage of:
36 (A) a person's lack of understanding of the material risks, costs, or
37 conditions of the product or service;
38 (B) a person's inability to protect his or her interests in selecting
39 or using a product or service; or
40 (C) a person's reasonable reliance on a person covered by this section
41 to act in his or her interests.
42 (b) Whenever the attorney general shall believe from evidence satis-
43 factory to him or her that any person, firm, corporation or association
44 or agent or employee thereof has engaged in or is about to engage in any
45 of the acts or practices stated to be unfair, unlawful, deceptive or
46 abusive, he or she may bring an action in the name and on behalf of the
47 people of the state of New York to enjoin such unlawful acts or prac-
48 tices and to obtain restitution of any moneys or property obtained
49 directly or indirectly by any such unlawful acts or practices. In such
50 action preliminary relief may be granted under article sixty-three of
51 the civil practice law and rules. Such actions may be brought regard-
52 less of whether or not the underlying violation is directed at individ-
53 uals or businesses, is consumer-oriented, or involves the offering of
54 goods, services, or property for personal, family or household purposes.
55 (c) Before any violation of this section is sought to be enjoined, the
56 attorney general shall be required to give the person against whom such
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1 proceeding is contemplated notice by certified mail and an opportunity
2 to show in writing within five business days after receipt of notice why
3 proceedings should not be instituted against him or her, unless the
4 attorney general shall find, in any case in which he or she seeks
5 preliminary relief, that to give such notice and opportunity is not in
6 the public interest.
7 (d) In any such action it shall be a complete defense that the act or
8 practice is, or if in interstate commerce would be, subject to and
9 complies with the rules and regulations of, and the statutes adminis-
10 tered by, the federal trade commission or any official department, divi-
11 sion, commission or agency of the United States as such rules, regu-
12 lations or statutes are interpreted by the federal trade commission or
13 such department, division, commission or agency or the federal courts.
14 (e) Nothing in this section shall apply to any television or radio
15 broadcasting station or to any publisher or printer of a newspaper,
16 magazine or other form of printed advertising, who broadcasts,
17 publishes, or prints the advertisement.
18 (f) In connection with any proposed proceeding under this section, the
19 attorney general is authorized to take proof and make a determination of
20 the relevant facts, and to issue subpoenas in accordance with the civil
21 practice law and rules.
22 (g) This section shall apply to all [deceptive] prohibited acts [or]
23 and practices [declared to be unlawful], whether or not subject to any
24 other law of this state, and shall not supersede, amend or repeal any
25 other law of this state under which the attorney general is authorized
26 to take any action or conduct any inquiry.
27 (h) (1) In addition to the right of action granted to the attorney
28 general pursuant to this section, any person who has been injured by
29 reason of any violation of this section may bring an action in his or
30 her own name to enjoin such unlawful act or practice, an action to
31 recover [his actual damages or fifty dollars, whichever is greater, or
32 both such actions] one thousand dollars and his or her actual damages,
33 if any, or both such actions. Such actions may be brought regardless of
34 whether or not the underlying violation is consumer-oriented, has a
35 public impact or involves the offering of goods, services or property
36 for personal, family or household purposes. The court may, in its
37 discretion, increase the award of damages [to an amount not to exceed
38 three times the actual damages up to one thousand dollars,] if the court
39 finds the defendant willfully or knowingly violated this section. The
40 court [may] shall award reasonable attorney's fees and costs to a
41 prevailing plaintiff.
42 [(j)] (i) For purposes of this section, a "person" is defined as an
43 individual, firm, corporation, partnership, cooperative, association,
44 coalition or any other organization's legal entity, or group of individ-
45 uals however organized;
46 (ii) For purposes of this section "non-profit organization" is defined
47 as an organization that is (A) not an individual; and (B) is neither
48 organized nor operating in whole, or in significant part, for profit;
49 (iii) Given the remedial nature of this section, standing to bring an
50 action under this section, including but not limited to organizational
51 standing and third-party standing, shall be liberally construed and
52 shall be available to the fullest extent otherwise permitted by law.
53 (2) Any individual or non-profit organization entitled to bring an
54 action under this article may, if the prohibited act or practice has
55 caused damage to others similarly situated, bring an action on behalf of
56 himself or herself and such others to recover actual, statutory and/or
S. 795 4
1 punitive damages or obtain other relief as provided for in this article.
2 Statutory damages under this section will be limited to (i) such amount
3 for each named plaintiff as could be recovered under paragraph one of
4 this subdivision; and (ii) such amount as the court may allow for all
5 other class members without regard to a minimum individual recovery, not
6 to exceed the lesser of one million dollars or two per centum of the net
7 worth of the business. Thus, any action brought under this subdivision
8 shall comply with article nine of the civil practice law and rules.
9 (3) A non-profit organization may bring an action under this section,
10 on behalf of itself or any of its members, or on behalf of those members
11 of the general public who have been injured by reason of any violation
12 of this section, including a violation involving goods or services that
13 the non-profit organization purchased or received in order to test or
14 evaluate qualities pertaining to use for personal, household, or family
15 purposes. A non-profit organization may seek the same remedies and
16 damages that a person may seek under paragraph one of this subdivision.
17 (4) Before any violation of this section is sought to be enjoined, the
18 person bringing the action shall be required to give the person against
19 whom such action is contemplated notice by certified mail, to the place
20 where the transaction occurred or to the principal place of business
21 within the state of the person against whom such action is contemplated,
22 and an opportunity to show in writing within ten business days after
23 mailing of notice why proceedings should not be instituted against him
24 or her, unless, in any case in which the person seeks preliminary
25 relief, the giving of such notice and opportunity would cause immediate
26 and irreparable injury, loss or damages.
27 (i) Notwithstanding any law to the contrary, all monies recovered or
28 obtained under this article by a state agency or state official or
29 employee acting in their official capacity shall be subject to subdivi-
30 sion eleven of section four of the state finance law.
31 (j) This section is intended to expand and not take away existing
32 consumer rights.
33 § 4. This act shall take effect on the sixtieth day after it shall
34 have become a law.
