S. 3568 2
5. The legislature further finds and declares that the purpose of the
EMPIRE Consumer Act is to benefit those businesses that are operating
within the law and who, as a result, face unfair competition from indi-
viduals and entities shirking the law and victimizing consumers.
6. The legislature further finds and declares that the purpose of the
EMPIRE Consumer Act is to incentivize not-for-profit consumer groups to
aid consumers to report abuses and violations of the law.
7. The legislature further finds and declares that the EMPIRE Consumer
Act is part of a history both in New York state and the United States of
laws enabling private citizens to aid in public enforcement. In similar
qui tam legislation enabling private citizens to aid in public enforce-
ment, the resulting action is in reality a public enforcement action.
§ 3. The general business law is amended by adding a new article 22-AA
to read as follows:
ARTICLE 22-AA
EMPOWERING PEOPLE IN RIGHTS ENFORCEMENT CONSUMER ACT
SECTION 350-F-2. DEFINITIONS.
350-F-3. PUBLIC ENFORCEMENT ACTIONS.
350-F-4. PROCEDURE.
350-F-5. CONSTRUCTION OF THIS ARTICLE.
§ 350-F-2. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. "CONSUMER" IS A NATURAL PERSON WHO BUYS, LEASES, CONTRACTS FOR OR
OTHERWISE OBTAINS GOODS OR SERVICES PRIMARILY FOR PERSONAL, FAMILY OR
HOUSEHOLD PURPOSES. IN THIS ARTICLE, UNLESS THE CONTEXT CLEARLY INDI-
CATES OTHERWISE, THE TERM "CONSUMER" SHALL INCLUDE ONE OR MORE CONSUMERS
BRINGING A PUBLIC ENFORCEMENT ACTION OR FOR WHOSE BENEFIT A NOT-FOR-PRO-
FIT CONSUMER GROUP BROUGHT A PUBLIC ENFORCEMENT ACTION.
2. "CONSUMER CLAIM" MEANS ANY CAUSE OF ACTION PRIMARILY INTENDED TO
BENEFIT CONSUMERS INVOLVING CONDUCT WHICH COULD OTHERWISE BE BROUGHT BY
THE ATTORNEY GENERAL PURSUANT TO SUBDIVISION TWELVE OF SECTION SIXTY-
THREE OF THE EXECUTIVE LAW OR ANY OTHER PROVISION OF LAW. SUCH TERM
SHALL INCLUDE, BUT NOT BE LIMITED TO, VIOLATIONS OF ARTICLES ELEVEN,
TWENTY-TWO-A, TWENTY-FIVE, AND TWENTY-NINE-H AND SECTION THREE HUNDRED
NINETY-SIX-R OF THIS CHAPTER, AND ARTICLES NINE, NINE-A AND TEN OF THE
PERSONAL PROPERTY LAW, BUT SHALL NOT INCLUDE SECTIONS ONE HUNDRED NINE-
TY-EIGHT-A AND ONE HUNDRED NINETY-EIGHT-B OF THIS CHAPTER.
3. "CORRECTIVE NOTICE" MEANS A NOTICE ISSUED BY AN INJURED CONSUMER
PURSUANT TO SUBDIVISION TWO OF SECTION THREE HUNDRED FIFTY-F-FOUR OF
THIS ARTICLE, AFTER NOTICE BY THE ATTORNEY GENERAL THAT THE CONSUMER'S
OR NOT-FOR-PROFIT CONSUMER GROUP'S ORIGINAL NOTICE PURSUANT TO SUBDIVI-
SION ONE OF SECTION THREE HUNDRED FIFTY-F-FOUR WAS NOT IN COMPLIANCE
WITH SUBDIVISION ONE OF SUCH SECTION OR THE REGULATIONS ISSUED THERE-
UNDER.
4. "PUBLIC ENFORCEMENT ACTION" MEANS AN ACTION BROUGHT UNDER THIS
ARTICLE BY ONE OR MORE CONSUMERS OR A NOT-FOR-PROFIT CONSUMER GROUP
INTENDED TO ENFORCE CONSUMER CLAIMS ENFORCEABLE BY THE ATTORNEY GENERAL.
5. "UNDERLYING CLAIM" MEANS A CONSUMER CLAIM ALLEGING ILLEGAL CONDUCT
WHICH SERVES AS THE BASIS OF A PUBLIC ENFORCEMENT ACTION. SUCH TERM
SHALL NOT INCLUDE AN ACTION UNDER SUBDIVISION TWELVE OF SECTION SIXTY-
THREE OF THE EXECUTIVE LAW.
§ 350-F-3. PUBLIC ENFORCEMENT ACTIONS. 1. ANY INJURED CONSUMER OR
CONSUMERS OR NOT-FOR-PROFIT CONSUMER GROUP MAY INITIATE A PUBLIC
ENFORCEMENT ACTION ON BEHALF OF THE ATTORNEY GENERAL FOR ANY CONSUMER
CLAIM, ON BEHALF OF THE INJURED CONSUMER OR OTHER CONSUMERS IN REGARD TO
THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE OR IN THE FURNISHING OF
S. 3568 3
ANY SERVICE IN THIS STATE, PURSUANT TO THE PROCEDURES SPECIFIED IN
SECTION THREE HUNDRED FIFTY-F-FOUR OF THIS ARTICLE. IF A NOT-FOR-PROFIT
CONSUMER GROUP BRINGS THE ACTION, THE CONSUMER MUST ELECT THE NOT-FOR-
PROFIT CONSUMER GROUP IN WRITING IN A FORM WHICH THE ATTORNEY GENERAL
SHALL BY REGULATION PRESCRIBE. PLAINTIFFS MAY ALLEGE MULTIPLE VIOLATIONS
AFFECTING MORE THAN ONE CONSUMER.
2.(A) IN ANY PUBLIC ENFORCEMENT ACTION, THE INJURED CONSUMER OR NOT-
FOR-PROFIT CONSUMER GROUP SHALL BE ENTITLED TO RECEIVE ANY RELIEF THAT
THE ATTORNEY GENERAL OR INJURED CONSUMER WOULD BE ENTITLED TO UNDER THE
UNDERLYING CLAIM, INCLUDING INJUNCTIVE RELIEF, RESTITUTION, CIVIL PENAL-
TIES OR DAMAGES. THE INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP
MAY RECEIVE EITHER THE CIVIL PENALTY PROVIDED FOR IN THE UNDERLYING
CLAIM OR UP TO FIVE THOUSAND DOLLARS FOR EACH VIOLATION, WHICHEVER IS
HIGHER. NOTWITHSTANDING THE PRECEDING SENTENCE, A COURT MAY AWARD A
LESSER AMOUNT IF, BASED ON THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR
CASE, TO DO OTHERWISE WOULD RESULT IN AN AWARD THAT IS UNJUST, ARBITRARY
AND OPPRESSIVE, OR CONFISCATORY.
(B) ANY INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP THAT
PREVAILS IN A PUBLIC ENFORCEMENT ACTION SHALL BE ENTITLED TO AN AWARD OF
REASONABLE ATTORNEY'S FEES AND COSTS.
3. CIVIL PENALTIES RECOVERED BY INJURED CONSUMERS OR NOT-FOR-PROFIT
CONSUMER GROUPS SHALL BE DISTRIBUTED AS FOLLOWS:
(A) IF THE INJURED CONSUMER INITIATED THE PUBLIC ENFORCEMENT ACTION
WITHOUT ELECTING A NOT-FOR-PROFIT CONSUMER GROUP PURSUANT TO SUBDIVISION
ONE OF THIS SECTION, FORTY-FIVE PERCENT TO THE CONSUMER OR CONSUMERS AND
FIFTY-FIVE PERCENT TO THE ATTORNEY GENERAL FOR ENFORCEMENT OF THIS ARTI-
CLE, TO BE CONTINUOUSLY APPROPRIATED TO SUPPLEMENT AND NOT SUPPLANT THE
FUNDING TO THE ATTORNEY GENERAL FOR THOSE PURPOSES.
(B) IF THE INJURED CONSUMER OR CONSUMERS ELECTED A NOT-FOR-PROFIT
CONSUMER GROUP PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THIRTY
PERCENT TO THE INJURED CONSUMER, FIFTEEN PERCENT TO THE NOT-FOR-PROFIT
CONSUMER GROUP, AND FIFTY-FIVE PERCENT TO THE ATTORNEY GENERAL FOR
ENFORCEMENT OF THIS ARTICLE, TO BE CONTINUOUSLY APPROPRIATED TO SUPPLE-
MENT AND NOT SUPPLANT THE FUNDING TO THE ATTORNEY GENERAL FOR THOSE
PURPOSES.
4. THE RIGHT TO BRING A PUBLIC ENFORCEMENT ACTION UNDER THIS ARTICLE
SHALL NOT BE SUBJECT TO PRIVATE AGREEMENTS BETWEEN A CONSUMER AND A
BUSINESS OR OTHER DEFENDANT.
5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PUBLIC ENFORCEMENT
ACTIONS MUST BE COMMENCED WITHIN THREE YEARS, SUBJECT TO THE TOLLING
PROVISIONS IN SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-F-FOUR OF
THIS ARTICLE.
§ 350-F-4. PROCEDURE. 1. NO PUBLIC ENFORCEMENT ACTION MAY BE COMMENCED
PRIOR TO THIRTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, HAS BEEN PROVIDED BY THE INJURED CONSUMER OR NOT-FOR-
PROFIT CONSUMER GROUP TO THE ATTORNEY GENERAL IN A FORM IN COMPLIANCE
WITH REGULATIONS IN REGARD TO THIS ACTION WHICH SHALL BE PRESCRIBED BY
THE ATTORNEY GENERAL. SUCH REGULATIONS SHALL AT A MINIMUM PROVIDE THAT
THE NOTICE SHALL INCLUDE:
(A) THE LEGAL NAME, ADDRESS, TELEPHONE NUMBER (IF ANY), AND EMAIL (IF
ANY) OF THE BUSINESS;
(B) THE NAME, ADDRESS, TELEPHONE NUMBER (IF ANY), AND EMAIL (IF ANY)
OF THE INJURED CONSUMER;
(C) THE LEGAL NAME, ADDRESS, TELEPHONE NUMBER (IF ANY), AND EMAIL (IF
ANY) OF THE NOT-FOR-PROFIT CONSUMER GROUP, IF APPLICABLE; AND
(D) A STATEMENT OF THE UNDERLYING CLAIM.
S. 3568 4
2. SUCH REGULATIONS PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL
PROVIDE FOR THE RIGHT OF THE INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER
GROUP TO FURNISH A CORRECTIVE NOTICE AFTER NOTICE BY THE ATTORNEY GENER-
AL TO THE CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP, WHICHEVER IS APPLI-
CABLE, THAT THE ORIGINAL NOTICE WAS NOT IN COMPLIANCE WITH THIS SECTION
OR THE REGULATIONS ISSUED THEREUNDER, SPECIFYING WITH PARTICULARITY THE
DEFICIENCIES IN THE ORIGINAL NOTICE. SUCH NOTICE SHALL BE PROVIDED BY
THE ATTORNEY GENERAL WITHIN THIRTY DAYS OF THE ORIGINAL NOTICE OR THE
ORIGINAL NOTICE SHALL BE DEEMED IN COMPLIANCE WITH SUBDIVISION ONE OF
THIS SECTION. THE CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP SHALL HAVE
THIRTY DAYS AFTER THE ATTORNEY GENERAL'S NOTICE THAT THE ORIGINAL NOTICE
WAS NOT IN COMPLIANCE TO SUBMIT A CORRECTIVE NOTICE TO THE ATTORNEY
GENERAL BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. FOR PURPOSES OF
DETERMINING WHETHER THE INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER
GROUP COMPLIED WITH THIS SUBDIVISION OR SUBDIVISION ONE OF THIS SECTION
IN AN ACTION UNDER THIS ARTICLE, THE NOTICE SHALL BE CONSTRUED IN A
LIGHT FAVORABLE TO THE CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP.
3. NO PUBLIC ENFORCEMENT ACTION SHALL BE BROUGHT IF THE ATTORNEY
GENERAL IS ACTIVELY INVESTIGATING THE SAME MATTER WHICH IS THE SUBJECT
OF THE NOTICE PROVIDED FOR IN SUBDIVISION ONE OF THIS SECTION WITH THE
INTENT TO DETERMINE WHETHER IT WILL FILE AN ACTION OR SPECIAL PROCEEDING
OVER SUCH CONDUCT, PROVIDED THAT THE ATTORNEY GENERAL INFORMS THE
INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP OF THE SAME BY CERTI-
FIED MAIL, RETURN RECEIPT REQUESTED, WITHIN THIRTY DAYS OF THE CONSUM-
ER'S OR NOT-FOR-PROFIT CONSUMER GROUP'S ORIGINAL NOTICE MADE PURSUANT TO
SUBDIVISION ONE OF THIS SECTION OR THE CONSUMER'S OR NOT-FOR-PROFIT
CONSUMER GROUP'S CORRECTIVE NOTICE, WHICHEVER IS LATER.
4. NOTWITHSTANDING SUBDIVISION THREE OF THIS SECTION, IF AFTER PROVID-
ING THE NOTICE TO THE INJURED CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP
PURSUANT TO SUBDIVISION THREE OF THIS SECTION, THE ATTORNEY GENERAL DOES
NOT COMMENCE AN ACTION WITHIN ONE HUNDRED EIGHTY DAYS OF THE LATER OF
THE TIME PERIODS SPECIFIED IN SUBDIVISION THREE OF THIS SECTION, THE
CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP MAY FILE A PUBLIC ENFORCEMENT
ACTION.
5. THE STATUTE OF LIMITATIONS IN SUBDIVISION FIVE OF SECTION THREE
HUNDRED FIFTY-F-THREE OF THIS ARTICLE SHALL BE TOLLED:
(A) FOR THE THIRTY DAY PERIOD IN SUBDIVISION ONE OF THIS SECTION, IF
THE ATTORNEY GENERAL DOES NOT ISSUE A CORRECTIVE NOTICE;
(B) FOR THE PERIOD FROM THE PROVIDING OF THE ORIGINAL NOTICE BY THE
CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP PURSUANT TO SUBDIVISION ONE OF
THIS SECTION TO THE DATE PERMITTED FOR THE CONSUMER OR NOT-FOR-PROFIT
CONSUMER GROUP TO SUBMIT A CORRECTIVE NOTICE, IF THE ATTORNEY GENERAL
REQUESTED A CORRECTIVE NOTICE PURSUANT TO SUBDIVISION TWO OF THIS
SECTION; OR
(C) FOR THE PERIOD FROM THE PROVIDING OF THE ORIGINAL NOTICE BY THE
CONSUMER OR NOT-FOR-PROFIT CONSUMER GROUP PURSUANT TO SUBDIVISION ONE OF
THIS SECTION TO THE LATER OF THE PERIODS PROVIDED IN SUBDIVISION FOUR OF
THIS SECTION, IF THE ATTORNEY GENERAL PROVIDES THE NOTICE PROVIDED IN
SUBDIVISION THREE OF THIS SECTION THAT IT IS ACTIVELY INVESTIGATING THE
SAME MATTER AND THEN DOES NOT COMMENCE AN ACTION IN THE TIME PERIODS
PROVIDED IN SUBDIVISION FOUR OF THIS SECTION.
6. IN ANY PUBLIC ENFORCEMENT ACTION, THE PLAINTIFF SHALL NOTIFY THE
ATTORNEY GENERAL OF THE ACTION AND THE ATTORNEY GENERAL MAY INTERVENE AS
A MATTER OF RIGHT.
7. THE ATTORNEY GENERAL SHALL ESTABLISH A PUBLICLY AVAILABLE DATABASE
OF ACTIONS BROUGHT PURSUANT TO THIS ARTICLE, INCLUDING THE PARTIES, THE
S. 3568 5
DISPOSITION AND ANY OTHER INFORMATION WHICH THE ATTORNEY GENERAL SHALL
BY REGULATION PRESCRIBE.
§ 350-F-5. CONSTRUCTION OF THIS ARTICLE. 1. NOTHING IN THIS ARTICLE
SHALL OPERATE TO LIMIT ANY PARTY'S RIGHT TO PURSUE ANY OTHER REMEDIES
AVAILABLE UNDER STATE OR FEDERAL LAW, EITHER SEPARATELY OR CONCURRENTLY
WITH AN ACTION TAKEN UNDER THIS ARTICLE.
2. THIS ARTICLE SHALL NOT SUPERSEDE ANY OTHER LAW OF THIS STATE UNDER
WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY ACTION OR CONDUCT
ANY INQUIRY, INCLUDING SUBDIVISION TWELVE OF SECTION SIXTY-THREE OF THE
EXECUTIVE LAW.
3. THIS ARTICLE SHALL BE CONSTRUED IN LIGHT OF ITS PURPOSES TO EXPAND
THE ENFORCEMENT OF LAWS THAT PROTECT INJURED CONSUMERS.
§ 4. Subdivision (h) of section 349 of the general business law, as
amended by chapter 157 of the laws of 1984, is amended to read as
follows:
(h) In addition to the right of action granted to the attorney general
pursuant to this section, any person who has been injured by reason of
any violation of this section may bring an action in his OR HER own name
to enjoin such unlawful act or practice, an action to recover his OR HER
actual damages or [fifty] FIVE HUNDRED dollars, whichever is greater, or
both such actions. The court may, in its discretion, increase the award
of damages to an amount not to exceed three times the actual damages up
to [one] TEN thousand dollars, if the court finds the defendant willful-
ly or knowingly violated this section. The court may award reasonable
attorney's fees to a prevailing plaintiff.
§ 5. Severability. If any word, phrase, clause, sentence, paragraph,
section or part of this act or the application thereof to any person or
circumstances shall be adjudged invalid by a court of competent juris-
diction, such order or judgment shall be confined in its operation to
the controversy in which it was rendered, and shall not affect or inval-
idate the remainder thereof, but shall be confined in its operation to
the word, phrase, clause, sentence, paragraph, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered.
§ 6. This act shall take effect on the one hundred eightieth day after
it shall have become a law. Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be made and
completed on or before such date.