S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10331
 
                           I N  A S S E M B L Y
 
                              April 29, 2020
                                ___________
 
 Introduced  by  M.  of  A.  DenDEKKER  --  read once and referred to the
   Committee on Consumer Affairs and Protection
 
 AN ACT to amend the general business law, in relation to the prohibition
   of the use of non-disparagement clauses in consumer contracts
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The general business law is amended by adding a new section
 399-k to read as follows:
   §  399-K.  NON-DISPARAGEMENT CLAUSES IN CONSUMER CONTRACTS OR SERVICES
 PROHIBITED. 1.  DEFINITIONS.
   A. THE TERM "CONSUMER" SHALL MEAN A NATURAL PERSON  RESIDING  IN  THIS
 STATE.
   B. THE TERM "CONSUMER GOODS" SHALL MEAN GOODS, WARES, PAID MERCHANDISE
 OR  SERVICES  PURCHASED  OR  PAID FOR BY A CONSUMER, THE INTENDED USE OR
 BENEFIT OF WHICH IS INTENDED  FOR  THE  PERSONAL,  FAMILY  OR  HOUSEHOLD
 PURPOSES OF SUCH CONSUMER.
   C.  THE  TERM  "CONSUMER  SERVICES"  SHALL  MEAN  SERVICES PROVIDED TO
 CONSUMERS  INCLUDING,  BUT  NOT  LIMITED  TO,  LEGAL  SERVICES,  MEDICAL
 SERVICES OR CLEANING SERVICES.
   D.  THE TERM "NON-DISPARAGEMENT CLAUSE" SHALL MEAN A PROVISION WAIVING
 THE CONSUMER'S RIGHT TO MAKE ANY STATEMENT REGARDING A SELLER OR  LESSOR
 OR ITS EMPLOYEES OR AGENTS, OR CONCERNING THE GOODS OR SERVICES.
   2.  PROHIBITION.  A.  A  CONTRACT OR PROPOSED CONTRACT FOR THE SALE OR
 LEASE OF CONSUMER GOODS OR SERVICES MAY NOT INCLUDE A  NON-DISPARAGEMENT
 CLAUSE.  THE INCLUSION OF SUCH CLAUSE IN A CONTRACT OR PROPOSED CONTRACT
 FOR THE SALE OR LEASE OF CONSUMER GOODS OR SERVICES SHALL NOT  SERVE  TO
 IMPAIR THE ENFORCEABILITY OF ANY OTHER PROVISION OF SUCH CONTRACT.
   B.  IT  SHALL BE UNLAWFUL TO THREATEN OR TO SEEK TO ENFORCE A NON-DIS-
 PARAGEMENT CLAUSE MADE UNLAWFUL UNDER  THIS  SECTION,  OR  TO  OTHERWISE
 PENALIZE  A  CONSUMER  FOR  MAKING  ANY  STATEMENT  PROTECTED UNDER THIS
 SECTION. THE INCLUSION OF SUCH CLAUSE IN A WRITTEN CONTRACT FOR THE SALE
 OR PURCHASE OF CONSUMER GOODS SHALL NOT SERVE TO IMPAIR THE ENFORCEABIL-
 ITY OF ANY OTHER PROVISION OF SUCH CONTRACT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07331-01-9

 A. 10331                            2
 
   C. ANY WAIVER OF THE PROVISIONS OF THIS SECTION IS CONTRARY TO  PUBLIC
 POLICY, AND IS VOID AND UNENFORCEABLE.
   3.  PENALTY.  A. ANY PERSON WHO VIOLATES THIS SECTION SHALL BE SUBJECT
 TO A CIVIL PENALTY NOT TO EXCEED FIVE  HUNDRED  DOLLARS  FOR  THE  FIRST
 VIOLATION,  AND  ONE THOUSAND DOLLARS FOR THE SECOND AND FOR EACH SUBSE-
 QUENT VIOLATION, TO BE ASSESSED AND COLLECTED IN A CIVIL ACTION  BROUGHT
 BY THE ATTORNEY GENERAL.
   B.  ANY  PERSON  WHO  SEEKS TO ENFORCE A NON-DISPARAGEMENT CLAUSE MADE
 UNLAWFUL UNDER THIS SECTION OR OTHERWISE PENALIZE A CONSUMER FOR  MAKING
 ANY  STATEMENT  PROTECTED UNDER THIS SECTION SHALL BE SUBJECT TO A CIVIL
 PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS TO BE ASSESSED AND COLLECTED
 IN A CIVIL ACTION BY THE ATTORNEY GENERAL.
   C. ANY CONSUMER DAMAGED BY A VIOLATION OF THIS SECTION  MAY  BRING  AN
 ACTION FOR RECOVERY OF DAMAGES. JUDGMENT MAY BE ENTERED IN AN AMOUNT NOT
 TO  EXCEED  THREE  TIMES  THE  ACTUAL DAMAGES PLUS REASONABLE ATTORNEY'S
 FEES. THE PENALTY PROVIDED BY THIS SECTION IS NOT AN  EXCLUSIVE  REMEDY,
 AND  DOES  NOT  AFFECT  ANY OTHER RELIEF OR REMEDY PROVIDED BY LAW. THIS
 SECTION SHALL NOT BE CONSTRUED TO PROHIBIT OR LIMIT A PERSON OR BUSINESS
 THAT HOSTS ONLINE CONSUMER REVIEWS OR COMMENTS FROM REMOVING A STATEMENT
 THAT IS OTHERWISE LAWFUL TO REMOVE.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.