S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9193
 
                           I N  A S S E M B L Y
 
                             February 9, 2022
                                ___________
 
 Introduced  by M. of A. ROZIC -- read once and referred to the Committee
   on Consumer Affairs and Protection
 
 AN ACT to amend the general business law and the financial services law,
   in relation to fraud in connection with an abnormal disruption of  the
   market
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivisions (b) and (c) of  section  349  of  the  general
 business law, as added by chapter 43 of the laws of 1970, are amended to
 read as follows:
   (b)  Whenever  the attorney general shall believe from evidence satis-
 factory to him OR HER that any person, firm, corporation or  association
 or agent or employee thereof has engaged in or is about to engage in any
 of  the  acts  or practices stated to be unlawful he OR SHE may bring an
 action in the name and on behalf of the people of the state of New  York
 to  enjoin  such unlawful acts or practices and to obtain restitution of
 any moneys or property obtained  directly  or  indirectly  by  any  such
 unlawful  acts  or  practices.  In such action preliminary relief may be
 granted under article sixty-three of the civil practice law  and  rules.
 PROVIDED  FURTHER THAT, WHENEVER THE ATTORNEY GENERAL SHALL BELIEVE FROM
 EVIDENCE SATISFACTORY TO HIM OR HER THAT A FIRM, CORPORATION OR  ASSOCI-
 ATION  OR  AGENT  OR  EMPLOYEE THEREOF HAS ENGAGED IN ANY OF THE ACTS OR
 PRACTICES STATED TO BE UNLAWFUL IN CONNECTION WITH AND WITH  THE  INTENT
 TO  UNLAWFULLY GAIN FROM AN ABNORMAL DISRUPTION OF THE MARKET AS DEFINED
 IN SECTION THREE HUNDRED NINETY-SIX-R OF THIS CHAPTER,  HE  OR  SHE  MAY
 BRING  AN  ACTION  ON  BEHALF  OF THE PEOPLE OF THE STATE OF NEW YORK TO
 RECOVER THREE TIMES THE ACTUAL DAMAGES PROVED  OR  TWENTY-FIVE  THOUSAND
 DOLLARS, WHICHEVER IS GREATER.
   (c) Before any violation of this section is sought to be enjoined, the
 attorney  general shall be required to give the person against whom such
 proceeding is contemplated notice by certified mail and  an  opportunity
 to show in writing within five business days after receipt of notice why
 proceedings  should  not  be  instituted  against him OR HER, unless the
 attorney general shall find, in any  case  in  which  he  OR  SHE  seeks
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09574-03-2
 A. 9193                             2
 
 preliminary  relief,  that to give such notice and opportunity is not in
 the public interest.
   §  2.  Section 408 of the financial services law is amended to read as
 follows:
   § 408. Civil penalty. (a) In addition to any civil or criminal liabil-
 ity provided by law, the superintendent may, after notice  and  hearing,
 levy a civil penalty:
   (1) not to exceed five thousand dollars per offense, for:
   (A)  any intentional fraud or intentional misrepresentation of a mate-
 rial fact with respect to a financial product or  service  or  involving
 any  person  offering  to  provide  or  providing  financial products or
 services; [or]
   (B) any violation of state or federal fair debt  collection  practices
 or federal or state fair lending laws; [and] OR
   (C)  A  FIRM,  CORPORATION OR ASSOCIATION OR AGENT OR EMPLOYEE THEREOF
 INTENTIONALLY ENGAGING IN FRAUD OR MISCONDUCT WITH RESPECT TO THE  BANK-
 ING LAW, THE INSURANCE LAW, THE PROVISIONS OF THIS CHAPTER OR OTHER LAWS
 OR ANY FINAL OR TEMPORARY ORDER ISSUED PURSUANT TO WHICH THE SUPERINTEN-
 DENT  HAS  INVESTIGATORY  OR  ENFORCEMENT POWERS, IN CONNECTION WITH AND
 WITH THE INTENT TO UNLAWFULLY GAIN FROM AN ABNORMAL  DISRUPTION  OF  THE
 MARKET  AS  DEFINED IN SECTION THREE HUNDRED NINETY-SIX-R OF THE GENERAL
 BUSINESS LAW; AND
   (2) not to exceed one thousand dollars for any other violation of this
 chapter or the regulations issued thereunder, provided that there  shall
 be no civil penalty under this section for violations of article five of
 this chapter or the regulations issued thereunder; and
   (3) provided, however, that, WITH THE EXCEPTION OF SUBPARAGRAPH (C) OF
 PARAGRAPH ONE OF THIS SUBSECTION:
   (A)  penalties for regulated persons under the banking law shall be as
 provided for in the banking law  and  penalties  for  regulated  persons
 under  the  insurance law shall be as provided for in the insurance law;
 and
   (B) the superintendent shall not impose or collect any  penalty  under
 this  section  in  addition  to  any penalty or fine for the same act or
 omission that is imposed under the insurance law or banking law; and
   (C) nothing in this section shall affect the construction or interpre-
 tation of the term "fraud" as it is used in any other provision  of  the
 consolidated or unconsolidated law.
   (b)  Civil  penalties  received by the superintendent pursuant to this
 section shall be applied on an annual basis as follows: funds  shall  be
 applied  first  to  reduce  the assessments charged on persons regulated
 under the insurance law and the banking  law  pursuant  to  section  two
 hundred  six of this chapter up to the full amount paid by persons regu-
 lated under the insurance law and banking law for the operating expenses
 of the financial frauds and consumer protection unit not attributable to
 regulation under the insurance or banking law for  the  fiscal  year  in
 which  such  penalties are received, such amount shall be applied to any
 assessment in the following year, and any remaining funds shall be  paid
 to  the general fund. The superintendent shall have discretion to deter-
 mine how operating expenses which are not solely attributable  to  regu-
 lating  persons  under either the insurance law or the banking law shall
 be allocated.
   (C) (1) PRIOR TO LEVYING A CIVIL PENALTY PURSUANT TO SUBPARAGRAPH  (C)
 OF  PARAGRAPH  ONE OF SUBSECTION (A) OF THIS SECTION, THE SUPERINTENDENT
 SHALL CONSIDER, IN ADDITION TO OTHER APPROPRIATE FACTORS:
 A. 9193                             3
 
   (A) WHETHER THE SUBJECT OF THE INVESTIGATION KNEW THAT  THEIR  CONDUCT
 WAS MADE IN CONNECTION WITH AN ABNORMAL DISRUPTION OF THE MARKET WITH AN
 INTENT  TO  UNLAWFULLY  GAIN FROM SUCH DISRUPTION OR WHETHER THE DEFEND-
 ANT'S CONDUCT WAS IN WILLFUL DISREGARD TO AN ABNORMAL DISRUPTION OF  THE
 MARKET WITH AN INTENT TO UNLAWFULLY GAIN FROM SUCH DISRUPTION;
   (B)  WHETHER  THE CONDUCT OF THE SUBJECT OF THE INVESTIGATION CAUSED A
 PERSON OR PERSONS TO SUFFER LOSS OR ENCUMBRANCE OF A PRIMARY  RESIDENCE,
 PRINCIPAL  EMPLOYMENT  OR  SOURCE  OF  INCOME, PAYMENTS RECEIVED UNDER A
 PENSION OR RETIREMENT PLAN OR A GOVERNMENT BENEFITS PROGRAM,  OR  ASSETS
 ESSENTIAL TO HEALTH OR WELFARE;
   (C)  ANY  OTHER SUBSTANTIAL ECONOMIC DAMAGE RESULTING FROM THE CONDUCT
 OF THE SUBJECT OF THE INVESTIGATION; AND
   (D) THE NET WORTH AND ANNUAL BUSINESS VOLUME OF  THE  SUBJECT  OF  THE
 INVESTIGATION.
   (2)  IN  DETERMINING  THE  AMOUNT  OF  ANY  SUPPLEMENTAL CIVIL PENALTY
 IMPOSED PURSUANT SUBPARAGRAPH (C) OF PARAGRAPH ONE OF SUBSECTION (A)  OF
 THIS  SECTION, THE SUPERINTENDENT SHALL MAKE A FINDING, AFTER NOTICE AND
 HEARING IS PROVIDED, AS TO THE AMOUNT  OF  THE  UNLAWFUL  GAIN  MADE  IN
 CONNECTION  WITH THE ABNORMAL DISRUPTION OF THE MARKET BY THE SUBJECT OF
 THE INVESTIGATION.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have  become  a law. Effective immediately, the superintendent of finan-
 cial services and the attorney general may  make  regulations  and  take
 other  actions reasonably necessary to implement this act on such effec-
 tive date.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9193--A
 
                           I N  A S S E M B L Y
 
                             February 9, 2022
                                ___________
 
 Introduced  by M. of A. ROZIC -- read once and referred to the Committee
   on Consumer Affairs  and  Protection  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 AN ACT to amend the general business law and the financial services law,
   in relation to fraud in connection with an abnormal disruption of  the
   market

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 350-d of the general business law,  as  amended  by
 chapter 208 of the laws of 2007, is amended to read as follows:
   §  350-d.  Civil penalty. (A) Any person, firm, corporation or associ-
 ation or agent or employee thereof who engages in any  of  the  acts  or
 practices  stated  in  this  article to be unlawful shall be liable to a
 civil penalty of not more than five thousand dollars for each violation,
 which shall accrue to the state of New York and may be  recovered  in  a
 civil  action  brought  by  the  attorney general. In any such action it
 shall be a complete defense that the advertisement  is  subject  to  and
 complies  with  the  rules and regulations of, and the statutes adminis-
 tered by the Federal Trade Commission or any official department,  divi-
 sion, commission or agency of the state of New York.
   (B)  PROVIDED,  HOWEVER,  THAT ANY FIRM, CORPORATION OR ASSOCIATION OR
 AGENT OR EMPLOYEE THEREOF WHO ENGAGES IN ANY OF THE  ACTS  OR  PRACTICES
 STATED  IN SECTION THREE HUNDRED FORTY-NINE OF THIS ARTICLE TO BE UNLAW-
 FUL IN CONNECTION WITH AN ABNORMAL DISRUPTION OF THE MARKET  AS  DEFINED
 IN SECTION THREE HUNDRED NINETY-SIX-R OF THIS CHAPTER SHALL BE LIABLE TO
 A  CIVIL  PENALTY  OF  NOT  MORE  THAN FIFTEEN THOUSAND DOLLARS FOR EACH
 VIOLATION OR THREE TIMES THE ACTUAL  RESTITUTION  NEEDED,  WHICHEVER  IS
 GREATER,  WHICH  SHALL ACCRUE TO THE STATE OF NEW YORK AND MAY BE RECOV-
 ERED IN A CIVIL ACTION BROUGHT BY THE  ATTORNEY  GENERAL.  IN  ANY  SUCH
 ACTION  IT SHALL BE A COMPLETE DEFENSE THAT THE ADVERTISEMENT IS SUBJECT
 TO AND COMPLIES WITH THE RULES AND  REGULATIONS  OF,  AND  THE  STATUTES
 ADMINISTERED BY THE FEDERAL TRADE COMMISSION OR ANY OFFICIAL DEPARTMENT,
 DIVISION, COMMISSION OR AGENCY OF THE STATE OF NEW YORK.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09574-05-2
 A. 9193--A                          2
 
   §  2.  Section 408 of the financial services law is amended to read as
 follows:
   § 408. Civil penalty. (a) In addition to any civil or criminal liabil-
 ity  provided  by law, the superintendent may, after notice and hearing,
 levy a civil penalty:
   (1) not to exceed five thousand dollars per offense, for:
   (A) any intentional fraud or intentional misrepresentation of a  mate-
 rial  fact  with  respect to a financial product or service or involving
 any person offering  to  provide  or  providing  financial  products  or
 services; [or]
   (B)  any  violation of state or federal fair debt collection practices
 or federal or state fair lending laws; [and] OR
   (C) A FIRM, CORPORATION OR ASSOCIATION OR AGENT  OR  EMPLOYEE  THEREOF
 INTENTIONALLY  ENGAGING IN FRAUD OR MISCONDUCT WITH RESPECT TO THE BANK-
 ING LAW, THE INSURANCE LAW, THE PROVISIONS OF THIS CHAPTER OR OTHER LAWS
 OR ANY FINAL OR TEMPORARY ORDER ISSUED PURSUANT TO WHICH THE SUPERINTEN-
 DENT HAS INVESTIGATORY OR ENFORCEMENT POWERS,  IN  CONNECTION  WITH  AND
 WITH  THE  INTENT  TO UNLAWFULLY GAIN FROM AN ABNORMAL DISRUPTION OF THE
 MARKET AS DEFINED IN SECTION THREE HUNDRED NINETY-SIX-R OF  THE  GENERAL
 BUSINESS LAW;
   (2) not to exceed one thousand dollars for any other violation of this
 chapter  or the regulations issued thereunder, provided that there shall
 be no civil penalty under this section for violations of article five of
 this chapter or the regulations issued thereunder; and
   (3) provided, however, that, WITH THE EXCEPTION OF SUBPARAGRAPH (C) OF
 PARAGRAPH ONE OF THIS SUBSECTION:
   (A) penalties for regulated persons under the banking law shall be  as
 provided  for  in  the  banking  law and penalties for regulated persons
 under the insurance law shall be as provided for in the  insurance  law;
 and
   (B)  the  superintendent shall not impose or collect any penalty under
 this section in addition to any penalty or fine  for  the  same  act  or
 omission that is imposed under the insurance law or banking law; and
   (C) nothing in this section shall affect the construction or interpre-
 tation  of  the term "fraud" as it is used in any other provision of the
 consolidated or unconsolidated law.
   (b) Civil penalties received by the superintendent  pursuant  to  this
 section  shall  be applied on an annual basis as follows: funds shall be
 applied first to reduce the assessments  charged  on  persons  regulated
 under  the  insurance  law  and  the banking law pursuant to section two
 hundred six of this chapter up to the full amount paid by persons  regu-
 lated under the insurance law and banking law for the operating expenses
 of the financial frauds and consumer protection unit not attributable to
 regulation  under  the  insurance  or banking law for the fiscal year in
 which such penalties are received, such amount shall be applied  to  any
 assessment  in the following year, and any remaining funds shall be paid
 to the general fund. The superintendent shall have discretion to  deter-
 mine  how  operating expenses which are not solely attributable to regu-
 lating persons under either the insurance law or the banking  law  shall
 be allocated.
   (C)  (1) PRIOR TO LEVYING A CIVIL PENALTY PURSUANT TO SUBPARAGRAPH (C)
 OF PARAGRAPH ONE OF SUBSECTION (A) OF THIS SECTION,  THE  SUPERINTENDENT
 SHALL CONSIDER, IN ADDITION TO OTHER APPROPRIATE FACTORS:
   (A)  WHETHER  THE SUBJECT OF THE INVESTIGATION KNEW THAT THEIR CONDUCT
 WAS MADE IN CONNECTION WITH AN ABNORMAL DISRUPTION OF THE MARKET WITH AN
 INTENT TO UNLAWFULLY GAIN FROM SUCH DISRUPTION OR  WHETHER  THE  DEFEND-
 A. 9193--A                          3
 
 ANT'S  CONDUCT WAS IN WILLFUL DISREGARD TO AN ABNORMAL DISRUPTION OF THE
 MARKET WITH AN INTENT TO UNLAWFULLY GAIN FROM SUCH DISRUPTION;
   (B)  WHETHER  THE CONDUCT OF THE SUBJECT OF THE INVESTIGATION CAUSED A
 PERSON OR PERSONS TO SUFFER LOSS OR ENCUMBRANCE OF A PRIMARY  RESIDENCE,
 PRINCIPAL  EMPLOYMENT  OR  SOURCE  OF  INCOME, PAYMENTS RECEIVED UNDER A
 PENSION OR RETIREMENT PLAN OR A GOVERNMENT BENEFITS PROGRAM,  OR  ASSETS
 ESSENTIAL TO HEALTH OR WELFARE;
   (C)  ANY  OTHER SUBSTANTIAL ECONOMIC DAMAGE RESULTING FROM THE CONDUCT
 OF THE SUBJECT OF THE INVESTIGATION; AND
   (D) THE NET WORTH AND ANNUAL BUSINESS VOLUME OF  THE  SUBJECT  OF  THE
 INVESTIGATION.
   (2)  IN  DETERMINING  THE  AMOUNT  OF  ANY  SUPPLEMENTAL CIVIL PENALTY
 IMPOSED PURSUANT TO SUBPARAGRAPH (C) OF PARAGRAPH ONE OF SUBSECTION  (A)
 OF  THIS  SECTION, THE SUPERINTENDENT SHALL MAKE A FINDING, AFTER NOTICE
 AND HEARING IS PROVIDED, AS TO THE AMOUNT OF THE UNLAWFUL GAIN  MADE  IN
 CONNECTION  WITH THE ABNORMAL DISRUPTION OF THE MARKET BY THE SUBJECT OF
 THE INVESTIGATION.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have  become  a law. Effective immediately, the superintendent of finan-
 cial services and the attorney general may  make  regulations  and  take
 other  actions reasonably necessary to implement this act on such effec-
 tive date.