NY State Senate Bill 2021-S2729

Senate Bill S2729

2021-2022 Legislative Session

Relates to communications by mercantile establishments attempting to settle civil actions deriving from larceny prosecutions

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to consumer protection
Jan 22, 2021	referred to consumer protection

co-Sponsors

2021-S2729 (ACTIVE) - Details

See Assembly Version of this Bill:: A1424
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §349-g, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A9478
2015-2016: A402
2017-2018: A5231
2019-2020: S4210, A3238
2023-2024: S1925, A646

2021-S2729 (ACTIVE) - Summary

Relates to communications by mercantile establishments attempting to settle civil actions deriving from larceny prosecutions.

2021-S2729 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2729

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the general business law, in relation to communications
by mercantile establishments attempting to settle civil actions deriving
from larceny prosecutions

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to inform consumers that a settlement
related to a larceny prosecution will not have any effect on any crimi-
nal actions arising from the same event that lead to the civil action

 
SUMMARY OF PROVISIONS:

Section 1 adds a new section 349-f to the general business law that
requires a mercantile establishment that is attempting to settle a civil
action that is derived from a criminal prosecution provides a notice to
a consumer in any correspondence related to a possible settlement that

explains that a settlement of the civil action will not have any effect
on any criminal actions arising from the events that lead to the civil
action. The section provides the exact statement a mercantile establish-
ment must provide in writing or read to a consumer if the communication
is spoken.

Section 1 also allows for treble damages, as well as costs and attor-
ney's fees as determined by a court.

Section 2 sets the effective date

 
JUSTIFICATION:

There has been a series of articles recently highlighting deceptive
practices that merchants and retailers are using to punish shoplifters.
Section 11-105 of the general obligation law allows for civil penalties
for anyone who commits larceny as defined by paragraph (a) of subdivi-
sion two of section 155.05 of the penal law and clearly outlines the
rights a merchant or retailer has in pursuing the civil action.  Howev-
er, many merchants have initiated communication, both written and
verbal, with those who have committed larceny to attempt to settle out
of court. These communications have been found to be deceptive in that
they often allege a civil suit will be filed that the merchant has no
intention of filing, they are often sent by third parties who have been
retained to represent the merchant to collect a penalty. They also
mislead consumers to believe that should they settle the civil action
they will be freed from any future criminal proceeding which is not the
case.

This legislation would require a specific and explicit notice be
provided in any form of communication that the communication is an
attempt to settle the civil action related to a criminal prosecution
that the consumer has a right to refuse or accept, and that acceptance
or refusal of the offer will have no impact on any criminal action aris-
ing from the event that led to the civil action.  Furthermore the notice
will inform the consumer that refusing the settlement may result in
civil litigation.

 
PRIOR LEGISLATIVE HISTORY:

2019-20 S.4210 - Referred to Consumer Protection
2017-18: A.5231 - Advanced to Third Reading
2015-16: A.402-A - Advanced to Third Reading
2013-14: A.9478 - Advanced to Third Reading

 
FISCAL IMPLICATIONS:

None to the State

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to any prospec-
tive attempted settlements of such civil actions.

2021-S2729 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2729
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 22, 2021
                                ___________
 
 Introduced by Sens. SEPULVEDA, SAVINO -- 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  communications
   by mercantile establishments attempting to settle civil actions deriv-
   ing from larceny prosecutions

   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
 349-g to read as follows:
   § 349-G. CIVIL PROCEEDINGS DERIVATIVE OF ALLEGED LARCENY. 1.  WHENEVER
 A MERCANTILE ESTABLISHMENT ATTEMPTS TO SETTLE A CIVIL ACTION PURSUANT TO
 SECTION  11-105  OF  THE  GENERAL  OBLIGATIONS  LAW,  ALL COMMUNICATIONS
 PERTAINING TO SUCH ATTEMPTED  SETTLEMENT  SHALL  CONTAIN  THE  FOLLOWING
 STATEMENT,  WHICH  SHALL, IF WRITTEN, BE IN A CONSPICUOUS PLACE, IN FONT
 LARGER THAN THE REMAINDER OF THE COMMUNICATION, AND, IF SPOKEN, READ  IN
 ITS ENTIRETY:
   "THIS  IS  AN  ATTEMPT TO REACH A CIVIL SETTLEMENT AGREEMENT RESULTING
 FROM A LARCENY THAT ALLEGEDLY INVOLVES YOU. SHOULD YOU CHOOSE  TO  AGREE
 TO  THIS  SETTLEMENT, YOU WILL BE SUBJECT TO THE TERMS AND CONDITIONS OF
 SUCH AGREEMENT, WHICH ARE GOVERNED BY §11-105 OF NEW YORK STATE'S GENER-
 AL OBLIGATIONS LAW.
   SHOULD YOU REFUSE THIS AGREEMENT, YOU ARE STILL SUBJECT TO §11-105  OF
 NEW  YORK  STATE'S GENERAL OBLIGATIONS LAW, WHICH INDICATES THAT PERSONS
 WHO COMMIT LARCENY AGAINST THE PROPERTY OF  A  MERCANTILE  ESTABLISHMENT
 ARE CIVILLY LIABLE TO SUCH MERCANTILE ESTABLISHMENT IN THE AMOUNT OF THE
 RETAIL  PRICE OF THE MERCHANDISE (ONLY IF SUCH MERCHANDISE IS NOT RECOV-
 ERED IN SALEABLE CONDITION), UP TO $1,500, AND A PENALTY IN  THE  AMOUNT
 THAT  IS  THE GREATER OF $75 OR FIVE-TIMES THE RETAIL PRICE, UP TO $500.
 THE MERCANTILE ESTABLISHMENT MAY FILE A CIVIL  LAWSUIT  AGAINST  YOU  TO
 PURSUE  THE  RECOVERY OF THESE DAMAGES. THESE CIVIL PENALTIES PRESCRIBED
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04490-01-1

 S. 2729                             2
 
 BY LAW ARE ENTIRELY SEPARATE FROM ANY CRIMINAL  PENALTIES  THAT  MAY  BE
 BROUGHT AGAINST YOU.
   SHOULD YOU ACCEPT OR REFUSE A CIVIL SETTLEMENT AGREEMENT, A MERCANTILE
 ESTABLISHMENT MAY STILL BRING CRIMINAL CHARGES AGAINST YOU IN A COURT OF
 LAW,  UNLESS SUCH CIVIL SETTLEMENT AGREEMENT BETWEEN YOU AND THE MERCAN-
 TILE ESTABLISHMENT PRECLUDES THE MERCANTILE ESTABLISHMENT FROM  PURSUING
 CRIMINAL CHARGES."
   2.  A  MERCANTILE  ESTABLISHMENT  THAT  VIOLATES THIS SECTION SHALL BE
 STRICTLY LIABLE FOR:
   (A) ANY ACTUAL DAMAGES SUSTAINED BY DEFENDANT  AS  A  RESULT  OF  SUCH
 FAILURE;
   (B)  TREBLE  THE  AMOUNT SOUGHT BY THE MERCANTILE ESTABLISHMENT IN ANY
 SUCH SETTLEMENT AGREEMENT. IN THE CASE OF  MULTIPLE  SETTLEMENT  OFFERS,
 THE  AMOUNT  TO BE TREBLED SHALL BE THE HIGHEST SETTLEMENT AMOUNT SOUGHT
 BY SUCH MERCANTILE ESTABLISHMENT;
   (C) IN THE CASE OF ANY SUCCESSFUL  ACTION  TO  ENFORCE  THE  FOREGOING
 LIABILITY,  THE  COSTS  OF THE ACTION, TOGETHER WITH A REASONABLE ATTOR-
 NEYS' FEE AS DETERMINED BY THE COURT.
   § 2. This act shall take effect immediately and  shall  apply  to  any
 prospective attempted settlements of such civil actions.

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Senate Bill S2729

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Sponsored By

Luis R. Sepúlveda