S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8427
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 15, 2025
                                ___________
 
 Introduced by M. of A. LASHER -- (at request of the Attorney General) --
   read  once  and  referred  to  the  Committee  on Consumer Affairs and
   Protection
 
 AN ACT to amend the general business law, in relation  to  enacting  the
   "fostering affordability and integrity through reasonable (FAIR) busi-
   ness practices act"

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the  "fostering
 affordability and integrity through reasonable (FAIR) business practices
 act".
   §  2.  Article 22-A of the general business law is amended by adding a
 new section 348 to read as follows:
   § 348. PURPOSE AND INTENT OF ARTICLE. THE  LEGISLATURE  DECLARES  THAT
 THE  STATE  HAS  A  RESPONSIBILITY  TO  PROTECT NEW YORKERS FROM UNFAIR,
 DECEPTIVE AND ABUSIVE BUSINESS ACTS AND PRACTICES (KNOWN AS  UDAP  STAT-
 UTES).   THE LEGISLATURE RECOGNIZES THE LIMITATIONS OF THE CURRENT STATE
 LAW, WHICH PROHIBITS ONLY THE USE OF DECEPTIVE BUSINESS ACTS  AND  PRAC-
 TICES,  AND  HAS PROVEN INSUFFICIENT TO SATISFY THE STATE'S RESPONSIBIL-
 ITIES TO PROTECT NEW YORKERS AND  THE  NEW  YORK  ECONOMY  FROM  UNFAIR,
 DECEPTIVE,  AND  ABUSIVE BUSINESS PRACTICES.  FOR TOO LONG, NEW YORKERS,
 ESPECIALLY NEW  YORKERS  WITH  LIMITED  INCOME,  COMMUNITIES  OF  COLOR,
 SENIORS,  VETERANS, AND IMMIGRANT POPULATIONS, HAVE BEEN LEFT VULNERABLE
 TO UNSCRUPULOUS BUSINESS PRACTICES RANGING  FROM  WASTING  A  CUSTOMER'S
 TIME  AS  A  BUSINESS  TACTIC  TO AVOID GIVING CUSTOMERS THE PRODUCTS OR
 SERVICES THEY ARE ENTITLED TO RECEIVE, TO MISLEADING  OR  HARMFUL  PRAC-
 TICES  BY  EMPLOYERS,  INCLUDING  DECEPTIVE MARKETING OR CONTRACT TERMS,
 FORCING WORKERS INTO UNDESIRABLE WORK CONDITIONS,  TO  DISTRIBUTING  AND
 SELLING  TOXIC AND OTHERWISE HARMFUL PRODUCTS DURING PUBLIC HEALTH EMER-
 GENCIES AND NATURAL DISASTERS. IT IS TIME FOR NEW YORK TO  MOVE  FORWARD
 AND  JOIN ALL BUT A HANDFUL OF NEW YORK'S FELLOW STATES AND THE DISTRICT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03277-11-5
              

 A. 8427                             2
 
 OF COLUMBIA, BY ADOPTING A COMPREHENSIVE UDAP STATUTE THAT GIVES GOVERN-
 MENT AND PRIVATE PARTIES THE TOOLS TO ADDRESS  THESE  HARMS.  THE  STATE
 MUST  ACHIEVE  THE  GOAL  OF  DETERRING  AND  REMEDYING A BROAD RANGE OF
 UNFAIR,  DECEPTIVE,  AND  ABUSIVE  BUSINESS  PRACTICES, AND LEVELING THE
 PLAYING FIELD FOR THE STATE'S MANY HONEST BUSINESSES AND NON-PROFITS WHO
 TREAT THEIR CUSTOMERS FAIRLY. TO THAT END, THIS ARTICLE  DEFINES  UNFAIR
 AND ABUSIVE ACTS AND PRACTICES EXPANSIVELY TO REACH HARMFUL CONDUCT THAT
 IS UNFAIR OR ABUSIVE BUT ARGUABLY NOT DECEPTIVE.
   THE   STATE  MUST  ALSO  ENSURE  THE  MOST  MEANINGFUL  AND  EFFECTIVE
 PROTECTION TO NEW YORKERS AGAINST HARMFUL COMMERCIAL CONDUCT. THIS ARTI-
 CLE THEREFORE ELIMINATES ATEXTUAL EXCEPTIONS IMPOSED BY COURTS OVER  THE
 LAST  FIVE DECADES THAT HAVE LIMITED PROHIBITED CONDUCT TO ACTS THAT ARE
 "CONSUMER ORIENTED" CONDUCT THAT HAS AN IMPACT ON THE PUBLIC  AT  LARGE,
 OR  ACTS THAT ARE PART OF A BROADER, OR RECURRING, PATTERN. THESE COURT-
 IMPOSED LIMITATIONS HAVE BEEN USED TO BAR RELIEF TO NEW YORKERS  VICTIM-
 IZED BY DECEPTIVE ACTS AND PRACTICES IN A VARIETY OF CONTEXTS, INCLUDING
 SMALL  BUSINESSES TRICKED INTO PREDATORY LOANS, INDIVIDUALS DEFRAUDED IN
 LANDLORD-TENANT TRANSACTIONS, VULNERABLE COMMUNITIES VICTIMIZED BY TOXIC
 OR OTHERWISE HARMFUL PRODUCTS, AND VICTIMS OF CONDUCT  THAT  AFFECTED  A
 SINGLE  INDIVIDUAL  OR  CONCERNED  A  SINGLE  TRANSACTION,  PRODUCT,  OR
 SERVICE.
   THE LEGISLATURE CONFIRMS THAT THIS  ARTICLE  PROTECTS  BUSINESSES  AND
 NON-PROFITS AS WELL AS INDIVIDUALS.  BUSINESSES AND NON-PROFITS, PARTIC-
 ULARLY  SMALL  BUSINESSES  AND  NON-PROFITS,  ARE  THEMSELVES A CLASS OF
 CONSUMERS. THERE IS NO REASON TO BELIEVE THAT  A  SMALL  ENTITY  IS  ANY
 BETTER ABLE TO DEFEND ITSELF FROM UNFAIR, ABUSIVE, AND DECEPTIVE CONDUCT
 THAN  A CONSUMER, OR NEEDS THE PROTECTIONS OF THIS ARTICLE ANY LESS THAN
 A CONSUMER DOES. THE MARKET AND WIDER SOCIETY IS HARMED BY THE  NEGATIVE
 CONSEQUENCES  THAT  FLOW  FROM  UNFAIR, DECEPTIVE, AND ABUSIVE PRACTICES
 EVEN IF THOSE ACTS AND PRACTICES HAVE NOT BEEN UNDERSTOOD  AS  "CONSUMER
 ORIENTED".
   THE  UNDERLYING  CONCERN  MOTIVATING THE COURTS TO CREATE THE NARROWER
 "CONSUMER ORIENTED" DOCTRINE IN THE FIRST PLACE--A DESIRE TO ENSURE THAT
 THE STATUTE  IS  NOT  MISAPPLIED  TO  HIGH-VALUE  SOPHISTICATED  PRIVATE
 COMMERCIAL  DISPUTES  FOR  WHICH NEW YORK IS ONE OF THE WORLD'S PREMIERE
 FORUMS--IS ADDRESSED BY NEW PROVISIONS THAT PROVIDE A DEFENSE  EXCLUDING
 THE  APPLICATION OF SUCH SECTION FROM DEALS MADE BY LARGE BUSINESSES AND
 HIGH-VALUE SOPHISTICATED TRANSACTIONS MADE BETWEEN INDIVIDUALS AND SMALL
 ENTITIES WITHOUT  AFFECTING  THE  BROAD  PROTECTIONS  NEW  YORKERS  NEED
 AGAINST  UNFAIR, DECEPTIVE, AND ABUSIVE BUSINESS ACTS AND PRACTICES.  IT
 IS THE INTENTION OF THE LEGISLATURE THAT THIS ARTICLE BE APPLIED  EXPAN-
 SIVELY,  WITH  LIMITS  IMPOSED ONLY IN ACCORDANCE WITH ITS TEXT, WITHOUT
 ADDITIONAL RESTRICTIONS.
   § 3. The article heading of article 22-A of the general business  law,
 as  amended  by  chapter  43  of the laws of 1970, is amended to read as
 follows:
                         [CONSUMER] PROTECTION FROM
                  UNFAIR, DECEPTIVE, OR ABUSIVE ACTS AND
                                 PRACTICES
   § 4. Section 349 of the general business law, as added by  chapter  43
 of  the  laws  of 1970, subdivision (h) as amended by chapter 157 of the
 laws of 1984 and subdivision (j) as added by section 6  of  part  HH  of
 chapter 55 of the laws of 2014, is amended to read as follows:
   §  349.  [Deceptive]  UNFAIR, DECEPTIVE, OR ABUSIVE acts and practices
 unlawful. (a) [Deceptive] UNFAIR, DECEPTIVE, OR ABUSIVE  acts  or  prac-
 tices  in  the  conduct  of  any  business,  trade or commerce or in the
 A. 8427                             3
 
 furnishing of any service in this state are  hereby  declared  unlawful.
 FOR THE PURPOSES OF THIS SECTION:
   (1)  AN ACT OR PRACTICE IS UNFAIR WHEN IT CAUSES OR IS LIKELY TO CAUSE
 A PERSON SUBSTANTIAL INJURY WHICH IS NOT REASONABLY  AVOIDABLE  BY  SUCH
 PERSON  AND IS NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO CONSUMERS OR
 TO COMPETITION.
   (2) AN ACT OR PRACTICE IS DECEPTIVE WHEN THE ACT OR PRACTICE  MISLEADS
 OR  IS  LIKELY  TO  MISLEAD  A  REASONABLE PERSON IN THE RELEVANT MARKET
 ACTING REASONABLY UNDER THE CIRCUMSTANCES.
   (3) AN ACT OR PRACTICE IS ABUSIVE WHEN:
   (I) IT MATERIALLY INTERFERES WITH THE ABILITY OF A  PERSON  TO  UNDER-
 STAND A TERM OR CONDITION OF A PRODUCT OR SERVICE; OR
   (II) IT TAKES UNREASONABLE ADVANTAGE OF:
   (A)  A  LACK  OF UNDERSTANDING ON THE PART OF A PERSON OF THE MATERIAL
 RISKS, COSTS, OR CONDITIONS OF A PRODUCT OR SERVICE;
   (B) THE INABILITY OF A PERSON TO PROTECT THEIR INTERESTS IN  SELECTING
 OR USING A PRODUCT OR SERVICE; OR
   (C)  THE  REASONABLE  RELIANCE BY A PERSON ON A PERSON COVERED BY THIS
 SECTION TO ACT IN THE RELYING PERSON'S INTERESTS.
   (4) AN UNLAWFUL ACT OR  PRACTICE  IS  ACTIONABLE  UNDER  THIS  SECTION
 REGARDLESS  OF WHETHER OR NOT THAT ACT OR PRACTICE IS CONSUMER-ORIENTED,
 HAS A PUBLIC IMPACT OR IMPACT ON CONSUMERS, POSES A RISK OF HARM TO  THE
 PUBLIC  HEALTH  OR INTEREST, IS ONLY OR PRIMARILY DIRECTED AT OR ONLY OR
 PRIMARILY AFFECTS BUSINESSES OR  NOT-FOR-PROFIT  ORGANIZATIONS,  AFFECTS
 THE  CONSUMING PUBLIC AT LARGE, CONCERNS EMPLOYMENT OR THE FURNISHING OF
 GOODS OR SERVICES, IS UNIQUE TO THE PARTIES, OR INVOLVES AN ECONOMICALLY
 MODEST TRANSACTION, CONSUMER GOODS OR THEIR EQUIVALENT, OR THE  OFFERING
 OF  GOODS,  SERVICES,  OR  PROPERTY  FOR  PERSONAL, FAMILY, OR HOUSEHOLD
 PURPOSES.
   (5) FOR PURPOSES OF THIS ARTICLE, THE TERM "INJURY" MEANS ANY  IMPAIR-
 MENT  OF  A  PERSON'S INTERESTS, AND THE TERM "SUBSTANTIAL INJURY" MEANS
 ANY SUBSTANTIAL IMPAIRMENT OF A PERSON'S INTERESTS, WHETHER OR NOT  SUCH
 IMPAIRMENTS  OR  SUBSTANTIAL  IMPAIRMENTS TO INTERESTS ARE QUANTIFIABLE,
 ECONOMIC, OR MONETARY IN NATURE, INCLUDING BUT NOT LIMITED  TO  LOSS  OF
 TIME, LOSS OF PRIVACY, OR LOSS OF SECURITY.
   (b)  Whenever  the attorney general shall believe from evidence satis-
 factory to [him] THE ATTORNEY GENERAL that any person, INCLUDING BUT NOT
 LIMITED TO AN INDIVIDUAL, firm,  corporation,  COMPANY,  PARTNERSHIP  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]
 UNFAIR, DECEPTIVE, OR ABUSIVE, THE ATTORNEY GENERAL may bring an  action
 OR  PROCEEDING  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  resti-
 tution  of any moneys or property obtained directly or indirectly by any
 such unlawful acts or practices. In such action OR PROCEEDING,  prelimi-
 nary  relief may be granted under article sixty-three of the civil prac-
 tice law and rules.  THE ATTORNEY GENERAL MAY BRING SUCH  AN  ACTION  OR
 PROCEEDING AGAINST ANY PERSON CONDUCTING ANY BUSINESS, TRADE OR COMMERCE
 OR  FURNISHING  A  SERVICE IN THIS   STATE, WHETHER OR NOT THE PERSON IS
 WITHOUT THE STATE, AND ANY PERSON IN THE STATE CONDUCTING ANY  BUSINESS,
 TRADE,  OR COMMERCE OR FURNISHING A SERVICE, WHETHER OR NOT THE BUSINESS
 OR SERVICE IS CONDUCTED OR FURNISHED WITHOUT THE STATE.
   (c) Before [any violation of this section is sought  to  be  enjoined]
 COMMENCING  AN ACTION OR PROCEEDING PURSUANT TO THIS SECTION, the attor-
 ney general shall be required to  give  the  person  against  whom  such
 proceeding  is  contemplated notice by certified mail and an opportunity
 A. 8427                             4

 to show in writing within five business days after receipt of notice why
 [proceedings] AN ACTION OR PROCEEDING should not be  instituted  against
 [him]  SUCH  PERSON, unless the attorney general shall find, in any case
 in  which  [he]  THE  ATTORNEY GENERAL seeks preliminary relief, that to
 give such notice and opportunity is not in the public interest.
   (d) In any such action OR PROCEEDING  it  shall  be  [a  complete]  AN
 AFFIRMATIVE  defense  that  the act or practice is[, or if in interstate
 commerce would be, subject to and complies  with]  REQUIRED  OR  SPECIF-
 ICALLY  AUTHORIZED  BY  the  rules  and regulations of, and the statutes
 administered by, the federal trade commission or  any  official  depart-
 ment,  division,  commission  or  agency  of  the United States [as such
 rules, regulations or statutes are  interpreted  by  the  federal  trade
 commission  or  such  department,  division, commission or agency or the
 federal courts] OR THIS STATE.
   (e) Nothing in this section shall apply to  any  television  or  radio
 broadcasting  station  or  to  any  publisher or printer of a newspaper,
 magazine  or  other  form  of  printed  advertising,   who   broadcasts,
 publishes, or prints the advertisement.
   (f)  In  connection  with any proposed ACTION OR proceeding under this
 section, the attorney general is authorized to take  proof  and  make  a
 determination  of  the relevant facts, and to issue subpoenas in accord-
 ance with the civil practice law and rules.
   (g) This section shall apply to all [deceptive] UNFAIR, DECEPTIVE,  OR
 ABUSIVE  acts  or  practices  [declared  to be unlawful], whether or not
 subject to any other law of this state, and shall not  supersede,  amend
 or  repeal  any other law of this state under which the attorney general
 OR ANY OTHER PARTY is authorized to  take  any  action  or  conduct  any
 inquiry.   THIS SECTION SHALL BE LIBERALLY CONSTRUED, AND ITS EXCEPTIONS
 AND DEFENSES NARROWLY CONSTRUED, SO AS TO EFFECTUATE  ITS  REMEDIAL  AND
 PROTECTIVE  PURPOSES.  THIS  SECTION  IS INTENDED TO EXPAND AND NOT TAKE
 AWAY ANY STATUTORY OR COMMON LAW RIGHTS.
   (h) (1) 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]
 SUCH  PERSON'S  own  name  to  enjoin  such unlawful act or practice, an
 action to recover [his actual damages or  fifty  dollars,  whichever  is
 greater, or both such actions] ONE THOUSAND DOLLARS IN STATUTORY DAMAGES
 AND  THE  PERSON'S  ACTUAL  DAMAGES,  IF  ANY.    The court [may, in its
 discretion,] SHALL increase the award of damages to [an  amount  not  to
 exceed]  three  times the [actual] damages [up to one thousand dollars,]
 AWARDED if the court finds the defendant willfully or knowingly violated
 this section. The court [may] SHALL award  reasonable  attorney's  fees,
 EXPENSES INCLUDING EXPERT WITNESS FEES, AND COSTS to a prevailing plain-
 tiff.
   [(j)] (2) (I) IT SHALL BE AN AFFIRMATIVE DEFENSE TO ANY ACTION BROUGHT
 PURSUANT  TO  THIS SUBDIVISION THAT THE PLAINTIFF IS A PERSON OTHER THAN
 AN INDIVIDUAL OR SMALL ENTITY.   FOR PURPOSES OF  THIS  SUBPARAGRAPH,  A
 "SMALL  ENTITY"  SHALL MEAN A PERSON OTHER THAN AN INDIVIDUAL, INCLUDING
 BUT NOT LIMITED TO A BUSINESS OR PROFESSIONAL CORPORATION OR COMPANY,  A
 NOT-FOR-PROFIT CORPORATION, AN UNINCORPORATED ASSOCIATION, OR A PARTNER-
 SHIP,  THAT: (A) IS INDEPENDENTLY OWNED AND OPERATED;(B) IS NOT DOMINANT
 IN ITS FIELD; (C) IS EITHER  A  NOT-FOR-PROFIT  CORPORATION  OR  EMPLOYS
 THREE  HUNDRED  OR  FEWER  PERSONS; (D) RECEIVED IN THE PAST FISCAL YEAR
 GROSS REVENUE AND SUPPORT IN AN AMOUNT LESS THAN  FIVE  HUNDRED  MILLION
 DOLLARS;  AND  (E) POSSESSED TOTAL ASSETS IN THE LAST FISCAL YEAR OF NOT
 MORE THAN TWO HUNDRED FIFTY MILLION DOLLARS.
 A. 8427                             5
 
   (II) IT SHALL BE AN AFFIRMATIVE DEFENSE TO ANY ACTION BROUGHT PURSUANT
 TO THIS SUBDIVISION THAT THE ACT OR PRACTICE COMPLAINED OF IS  REDRESSA-
 BLE  PURSUANT  TO  FEDERAL  SECURITIES OR INTELLECTUAL PROPERTY LAWS, OR
 THAT THE ACT OR PRACTICE AROSE IN THE COURSE OF A HIGH-VALUE EXPERIENCED
 COMMERCIAL  TRANSACTION  AND  WAS DIRECTED EXCLUSIVELY TO THE PARTIES TO
 THAT TRANSACTION. THIS DEFENSE SHALL NOT APPLY TO ACTS OR PRACTICES THAT
 ARISE IN THE CONTEXT OF A RESIDENTIAL HOUSING MATTER.
   FOR PURPOSES OF THIS SUBPARAGRAPH:
   (A) AN ACT OR PRACTICE IS "REDRESSABLE PURSUANT TO FEDERAL  SECURITIES
 OR  INTELLECTUAL  PROPERTY  LAWS" ONLY IF:  (I) THE PLAINTIFF MAY REMEDY
 THE INJURY ARISING OR ALLEGED TO ARISE FROM THE ACT OR PRACTICE  BY  USE
 OF THE PRIVATE RIGHTS OF ACTION CONTAINED IN THE SECURITIES ACT OF 1933,
 15  U.S.C.  SECTION 77A ET SEQ., OR THE SECURITIES EXCHANGE ACT OF 1934,
 15 U.S.C. SECTION 78A ET SEQ., OR REGULATIONS PROMULGATED THEREUNDER; OR
 (II) THE PLAINTIFF MAY REMEDY THE INJURY ARISING  OR  ALLEGED  TO  ARISE
 FROM  THE  ACT  OR  PRACTICE  BY  USE  OF  THE  PRIVATE RIGHTS OF ACTION
 CONTAINED IN TITLE 35 OF THE UNITED STATES CODE, OR THE TRADEMARK ACT OF
 1946, 15 U.S.C. SECTION 1051 ET SEQ., OR THE DEFEND TRADE SECRETS ACT OF
 2016, 18 U.S.C. SECTION 1836, ET SEQ., OF THE COPYRIGHT ACT OF 1976,  17
 U.S.C. SECTION 101 ET SEQ., OR REGULATIONS PROMULGATED THEREUNDER;
   (B) A "HIGH-VALUE EXPERIENCED COMMERCIAL TRANSACTION" IS A TRANSACTION
 THE  VALUE OF WHICH EXCEEDS ONE MILLION DOLLARS AND WHERE ALL PARTIES TO
 THE TRANSACTION HAVE EXTENSIVE COMMERCIAL EXPERIENCE  WITH  THE  SUBJECT
 MATTER OF SUCH TRANSACTION; PROVIDED THAT THE EXPERIENCE OR OTHERWISE OF
 THE DEFENDANT SHALL NOT BE CONSIDERED IN MAKING THIS DETERMINATION;
   (C)  A PERSON OTHER THAN AN INDIVIDUAL HAS "EXTENSIVE COMMERCIAL EXPE-
 RIENCE" IN THE SUBJECT MATTER OF THE TRANSACTION IF THE INDIVIDUALS  WHO
 CONTROL  THAT PERSON HAVE EXTENSIVE COMMERCIAL EXPERIENCE IN THE SUBJECT
 MATTER OF THE TRANSACTION;
   (D) "RESIDENTIAL HOUSING" MEANS ANY RESIDENTIAL REAL PROPERTY, INCLUD-
 ING BUT NOT LIMITED TO RENTAL  HOUSING,  ONE-TO-FOUR  FAMILY  DWELLINGS,
 CONDOMINIUM  UNITS,  COOPERATIVE  APARTMENTS,  LOTS IN MANUFACTURED HOME
 PARKS, OR SECURITIES THAT ENTITLE THE HOLDERS THEREOF TO  POSSESSION  OR
 OCCUPANCY OF SUCH HOUSING; AND
   (E)   A   "RESIDENTIAL  HOUSING  MATTER"  IS  ONE  THAT  CONCERNS  THE
 CONSTRUCTION, RENOVATION, SALE OR  RENT  OF  RESIDENTIAL  HOUSING  USED,
 OCCUPIED,  OR  INTENDED  TO BE OCCUPIED AS A HOME OR RESIDENCE BY ONE OR
 MORE PARTIES TO THE TRANSACTION OR INDIVIDUALS OWNING OR CONTROLLING ONE
 OR MORE PARTIES TO THE TRANSACTION, OR CREDIT EXTENDED TO  ONE  OR  MORE
 PERSONS  TO  PURCHASE,  REFINANCE,  REPAIR,  OR IMPROVE SUCH RESIDENTIAL
 HOUSING, OR CREDIT SECURED BY A  PERSON'S  EQUITY  IN  SUCH  RESIDENTIAL
 HOUSING.
   (3)  (I) STANDING TO BRING AN ACTION UNDER THIS SECTION, INCLUDING BUT
 NOT LIMITED TO ORGANIZATIONAL STANDING AND THIRD-PARTY  STANDING,  SHALL
 BE  LIBERALLY  CONSTRUED  AND  SHALL  BE AVAILABLE TO THE FULLEST EXTENT
 OTHERWISE PERMITTED BY LAW.
   (II) A COURT MAY ENJOIN AN ACT OR PRACTICE FOUND TO BE UNLAWFUL IN  AN
 ACTION  BROUGHT  PURSUANT TO THIS SUBDIVISION NOTWITHSTANDING THE PLAIN-
 TIFF OR PLAINTIFFS' FAILURE TO DEMONSTRATE THAT THEY WILL SUFFER  FUTURE
 HARM AS A RESULT.
   (4) (I) NOTWITHSTANDING SECTION NINE HUNDRED ONE OF THE CIVIL PRACTICE
 LAW AND RULES OR ANY OTHER APPLICABLE PROVISION OF LAW, ANY PERSON ENTI-
 TLED TO BRING AN ACTION UNDER THIS ARTICLE MAY, IF THE PROHIBITED ACT OR
 PRACTICE HAS CAUSED DAMAGE TO OTHERS SIMILARLY SITUATED, BRING AN ACTION
 ON  BEHALF OF SUCH PERSON AND OTHERS SIMILARLY SITUATED TO RECOVER ACTU-
 AL, STATUTORY OR PUNITIVE DAMAGES OR OBTAIN OTHER RELIEF AS PROVIDED FOR
 A. 8427                             6
 
 IN THIS ARTICLE. STATUTORY DAMAGES UNDER THIS SECTION SHALL  BE  LIMITED
 TO  (I) SUCH AMOUNT FOR EACH NAMED PLAINTIFF AS COULD BE RECOVERED UNDER
 PARAGRAPH ONE OF THIS SUBDIVISION; AND (II) SUCH AMOUNT AS THE COURT MAY
 ALLOW FOR ALL OTHER CLASS MEMBERS WITHOUT REGARD TO A MINIMUM INDIVIDUAL
 RECOVERY,  NOT  TO  EXCEED  THE LESSER OF ONE MILLION DOLLARS OR TWO PER
 CENTUM OF THE GROSS VALUE OF THE DEFENDANT.
   (II) AS APPLIED TO A CLASS ACTION OR PROPOSED CLASS ACTION,  THE  TERM
 "PLAINTIFF"  AS  USED IN THE DEFENSES PROVIDED BY PARAGRAPH TWO OF  THIS
 SUBDIVISION SHALL MEAN ONLY THE NAMED  OR  REPRESENTATIVE  PLAINTIFF  OR
 PLAINTIFFS AND NOT THE PROPOSED OR CERTIFIED MEMBERS OF THE CLASS.
   (5)(I) AT LEAST THIRTY DAYS BEFORE BRINGING AN ACTION PURSUANT TO THIS
 SUBDIVISION, A COMPLAINANT MUST SEND THE RESPONDENT NOTICE IN WRITING TO
 THE RESPONDENT'S PLACE OF BUSINESS. SUCH NOTICE MUST REASONABLY DESCRIBE
 THE  UNFAIR,  DECEPTIVE,  OR ABUSIVE ACTS OR PRACTICES AT ISSUE, STATE A
 DEMAND FOR RELIEF, AND INCLUDE  THE  COMPLAINANT'S  MAILING  ADDRESS  OR
 E-MAIL  ADDRESS. FOR THE PURPOSES OF THIS PARAGRAPH, THE TERM "COMPLAIN-
 ANT" SHALL MEAN A PERSON WHO MAY BRING AN ACTION PURSUANT TO THIS SUBDI-
 VISION. FOR THE PURPOSE OF THIS PARAGRAPH, THE TERM  "RESPONDENT"  SHALL
 MEAN A PERSON AGAINST WHOM AN ACTION IS CONTEMPLATED.
   (II)  A  RESPONDENT RECEIVING A NOTICE REQUIRED TO BE SENT PURSUANT TO
 THIS PARAGRAPH MAY, WITHIN TEN DAYS OF DELIVERY OF SUCH NOTICE,  MAKE  A
 WRITTEN TENDER OF SETTLEMENT BY POSTAL MAIL OR BY E-MAIL, IF PROVIDED IN
 THE  NOTICE. IF SUCH TENDER IS REJECTED, IN ANY SUBSEQUENT ACTION BY THE
 COMPLAINANT ARISING OUT OF THE CONDUCT DESCRIBED  IN  THE  COMPLAINANT'S
 NOTICE, THE RESPONDENT MAY FILE THE WRITTEN TENDER OF SETTLEMENT WITH AN
 AFFIDAVIT  CONCERNING  ITS REJECTION AND PROOF THAT THE TENDER WAS FILED
 WITH THE ATTORNEY GENERAL. IF SUCH SETTLEMENT IS DEEMED COMPLETE  RELIEF
 BY  THE COURT, THE COURT SHALL LIMIT ANY RECOVERY TO THE RELIEF TENDERED
 THEREIN.
   (III) A TENDER OF SETTLEMENT SHALL BE  DEEMED  COMPLETE  ONLY  IF  THE
 RESPONDENT  UNCONDITIONALLY:  (A)  TENDERS AN AMOUNT EQUAL TO ACTUAL AND
 STATUTORY DAMAGES, AS APPLICABLE, (B) MAKES  A  BINDING  UNDERTAKING  TO
 CORRECT  AND  PERMANENTLY  CEASE SUCH ACTS OR PRACTICES DESCRIBED IN THE
 NOTICE AS TO THE COMPLAINANT AND ALL OTHER  IMPACTED  PERSONS,  AND  (C)
 FILES  THE  NOTICE AND TENDER OF SETTLEMENT WITH THE ATTORNEY GENERAL IN
 ACCORDANCE WITH PARAGRAPH SIX OF THIS SUBDIVISION.
   (IV) IN MAKING SUCH A TENDER OF SETTLEMENT, A RESPONDENT SHALL NOT  BE
 DEEMED TO HAVE CONCEDED ANY FACTUAL OR LEGAL MATTER STATED IN THE NOTICE
 OR  TO  HAVE  UNDERTAKEN  ANY  OBLIGATIONS  OTHER THAN, IF THE TENDER IS
 ACCEPTED OR THE COURT SO ORDERS, THE PAYMENT  OF  THE  MONETARY  AMOUNTS
 SPECIFIED  IN  THE  TENDER AND THE CORRECTION AND PERMANENT CESSATION OF
 THE ACTS OR PRACTICES DESCRIBED IN THE NOTICE. EXCEPT AS THIS  PARAGRAPH
 OTHERWISE  PROVIDES,  A TENDER OF SETTLEMENT SHALL BE DEEMED AN OFFER TO
 COMPROMISE SUBJECT TO ARTICLE FORTY-FIVE OF THE CIVIL PRACTICE  LAW  AND
 RULES.
   (V)  AN  ACCEPTED TENDER OF SETTLEMENT SHALL BE DEEMED A SETTLEMENT OF
 AN ACTION TO RECOVER DAMAGES FOR PURPOSES OF ARTICLE FIFTY OF THE  CIVIL
 PRACTICE LAW AND RULES.
   (VI)  FOR  THE  PURPOSES  OF  COMPUTING THE PERIOD OF LIMITATION UNDER
 ARTICLE TWO OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION  PURSUANT  TO
 THIS  SUBDIVISION  SHALL BE DEEMED TIMELY IF THE COMPLAINANT'S NOTICE TO
 THE RESPONDENT WAS SENT ON OR BEFORE THE DATE ON WHICH  THE  STATUTE  OF
 LIMITATIONS WOULD HAVE EXPIRED WITHOUT REGARD TO THE DATE OF THAT NOTICE
 OR  ANY  OTHER NOTICE MADE PURSUANT TO THIS PARAGRAPH, AND THE ACTION IS
 COMMENCED NO LATER THAN FORTY DAYS  FOLLOWING  THE  DATE  ON  WHICH  THE
 COMPLAINANT'S NOTICE WAS SENT TO THE RESPONDENT.
 A. 8427                             7
 
   (VII)  A NOTICE PURSUANT TO THIS PARAGRAPH SHALL NOT BE REQUIRED PRIOR
 TO THE FILING OF AN ACTION IF:
   (A) SUCH ACTION IS BROUGHT AS A COUNTERCLAIM OR CROSSCLAIM;
   (B)  THE  SENDING OF SUCH NOTICE WOULD CAUSE IMMEDIATE AND IRREPARABLE
 INJURY, LOSS, OR DAMAGES;
   (C) THE PERSON BRINGING THE ACTION IS NOT REPRESENTED BY AN ATTORNEY;
   (D) A MAILING ADDRESS FOR THE RESPONDENT IS NOT  REASONABLY  DISCERNI-
 BLE;
   (E)  THE  RESPONDENT,  OR ANY ENTITY OWNED OR CONTROLLED BY THE ONE OR
 MORE OF THE SAME PERSONS THAT  OWN  OR  CONTROL  OR  ULTIMATELY  OWN  OR
 CONTROL  THE RESPONDENT, HAS PREVIOUSLY BEEN THE SUBJECT OF AN ACTION OR
 PROCEEDING BY THE ATTORNEY GENERAL FOR SUBSTANTIALLY SIMILAR CONDUCT;
   (F) THE RESPONDENT, OR ANY ENTITY OWNED OR CONTROLLED BY ONE  OR  MORE
 OF THE SAME PERSONS THAT OWN OR CONTROL OR ULTIMATELY OWN OR CONTROL THE
 RESPONDENT, HAS ALREADY RECEIVED A NOTICE PURSUANT TO THIS PARAGRAPH FOR
 SUBSTANTIALLY SIMILAR CONDUCT; OR
   (G) THERE ARE OTHER EXIGENT CIRCUMSTANCES OR THE COURT OTHERWISE FINDS
 THAT  THE  NOTICE  REQUIREMENT  SHOULD  BE  WAIVED  IN  THE INTERESTS OF
 JUSTICE.
   (6) (I) ANY RESPONDENT THAT DELIVERS A TENDER OF  SETTLEMENT  PURSUANT
 TO  PARAGRAPH  FIVE  OF  THIS  SUBDIVISION  SHALL FILE WITH THE ATTORNEY
 GENERAL A PRESCRIBED FORM THAT INCLUDES  A  COPY  OF  THE  COMPLAINANT'S
 NOTICE  AND  THE RESPONDENT'S WRITTEN TENDER OF SETTLEMENT. THE ATTORNEY
 GENERAL SHALL PUBLISH ALL SUCH FILINGS.
   (II) THE ATTORNEY GENERAL MAY COMMENCE AN ACTION OR PROCEEDING AGAINST
 ANY RESPONDENT WHO FAILS TO MAKE A FILING REQUIRED BY PARAGRAPH  SIX  OF
 THIS  SUBDIVISION  WITHIN  THIRTY  DAYS  OF  THE ACTS GIVING RISE TO THE
 REQUIREMENT. A FAILURE TO FILE THE REQUIRED STATEMENT ON TIME  SHALL  BE
 SUBJECT  TO  A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS FOR EACH
 DAY SUCH VIOLATION CONTINUES, IN ADDITION  TO  ANY  OTHER  PENALTIES  OR
 REMEDIES  PROVIDED UNDER THIS SECTION OR ANY OTHER SECTION OF THIS CHAP-
 TER OR THE EXECUTIVE LAW.
   (I) Notwithstanding any law to the contrary, all monies  recovered  or
 obtained  under  this  article  by  a  state agency or state official or
 employee acting in their official capacity shall be subject to  subdivi-
 sion eleven of section four of the state finance law.
   §  5.  Section  349-c of the general business law, as added by chapter
 687 of the laws of 1996 and renumbered by chapter 189  of  the  laws  of
 1999, is amended to read as follows:
   § 349-c. Additional civil penalty for [consumer frauds] UNFAIR, DECEP-
 TIVE,  OR  ABUSIVE  PRACTICES  against  [elderly] VULNERABLE persons. 1.
 Definition. As used in this section [elderly person  means]  "VULNERABLE
 PERSON"  MEANS (A) a person who is UNDER EIGHTEEN YEARS OF AGE OR sixty-
 five years of age or older; (B) A PERSON WHO IS ON ACTIVE DUTY IN, OR  A
 VETERAN OF, THE UNITED STATES ARMED FORCES; (C) A PERSON WHO HAS A PHYS-
 ICAL  OR  MENTAL  IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR
 LIFE ACTIVITIES; OR (D) A PERSON WITH LIMITED ENGLISH PROFICIENCY.
   2. Supplemental civil penalty. [(a)] In addition to any liability  for
 damages  or  a  civil penalty imposed pursuant to sections three hundred
 forty-nine, three hundred fifty-c and  three  hundred  fifty-d  of  this
 [chapter] ARTICLE, regarding UNFAIR, deceptive, OR ABUSIVE practices and
 false  advertising, and subdivision twelve of section sixty-three of the
 executive law, regarding proceedings by the attorney general for equita-
 ble relief against fraudulent or illegal [consumer fraud] ACTS, a person
 or entity who engages in any conduct prohibited by  said  provisions  of
 law,  and  whose  conduct  is  perpetrated against one or more [elderly]
 A. 8427                             8
 
 VULNERABLE persons, [may] SHALL be liable for an additional civil penal-
 ty not [to exceed] LESS THAN FIVE THOUSAND DOLLARS OR GREATER  THAN  ten
 thousand  dollars[,  if the factors in paragraph (b) of this subdivision
 are  present]  FOR  EACH SUCH VULNERABLE PERSON SUBSTANTIALLY INJURED BY
 THE UNLAWFUL CONDUCT.
   [(b) In determining whether to impose  a  supplemental  civil  penalty
 pursuant  to  paragraph  (a)  of this subdivision, and the amount of any
 such penalty, the court shall consider, in addition to other appropriate
 factors, the extent to which the following factors are present:
   (1) Whether] 3. REBUTTAL OF SUPPLEMENTAL CIVIL PENALTY. THE ADDITIONAL
 PENALTY PROVIDED BY SUBDIVISION TWO OF THIS SECTION SHALL NOT BE IMPOSED
 ON A DEFENDANT WHO PROVES THAT, WITH RESPECT TO EACH VIOLATION TO  WHICH
 THE PENALTY WOULD OTHERWISE APPLY:
   (A)  the defendant [knew] DID NOT KNOW OR HAVE REASON TO KNOW that the
 defendant's conduct was [directed to one or  more  elderly]  PERPETRATED
 AGAINST VULNERABLE persons; or [whether]
   (B)  the  [defendant's]  DEFENDANT  USED  ITS BEST EFFORTS, WITHIN THE
 LIMITS OF ECONOMIC FEASIBILITY AND COMMERCIAL REASONABILITY,  TO  ENSURE
 THAT  VULNERABLE  PEOPLE  WERE  NOT  DISPROPORTIONATELY  AFFECTED BY THE
 conduct [was in willful disregard of the rights of an elderly person;].
   [(2) Whether the defendant's  conduct  caused  an  elderly  person  or
 persons  to  suffer  severe  loss or encumbrance of a primary residence,
 principal employment or source of income, substantial loss  of  property
 set  aside  for  retirement  or for personal and family care and mainte-
 nance, substantial loss of payments received under a pension or  retire-
 ment  plan  or a government benefits program; or assets essential to the
 health or welfare of the elderly person or whether one or  more  elderly
 persons  were  substantially  more vulnerable to the defendant's conduct
 because  of  age,  poor  health,  infirmity,   impaired   understanding,
 restricted  mobility,  or  disability,  and  actually suffered physical,
 emotional, or economic damage resulting from the defendant's conduct.
   3.] 4. There is hereby established in the  state  treasury  a  special
 fund  to  be  known as the [elderly] VULNERABLE victim fund, which shall
 consist of and into which shall be paid all moneys derived from  supple-
 mental  civil penalties imposed pursuant to this section.  The moneys in
 such fund shall be administered by the department of law  and  shall  be
 expended  solely  for  the investigation of and prosecution of [consumer
 frauds] UNFAIR, DECEPTIVE, OR ABUSIVE ACTS against [elderly]  VULNERABLE
 persons.    The  moneys  in  the fund shall be paid out on the audit and
 warrant of the comptroller on vouchers  certified  or  approved  by  the
 attorney  general.    Notwithstanding  any other provision of law to the
 contrary, any balance in the said fund  on  March  thirty-first  of  any
 fiscal year shall not revert to the general fund of the state.
   [4.] 5. Restitution to be given priority. Restitution ordered pursuant
 to the provisions of law listed in subdivision two of this section shall
 be  given  priority over the imposition of civil penalties designated by
 the court under this section.
   § 6. Section 350-c of the general business law, as amended by  chapter
 65 of the laws of 1989, is amended to read as follows:
   §  350-c.  Notice  of  proposed  action. Before the [attorney-general]
 ATTORNEY GENERAL commences an action OR PROCEEDING pursuant  to  section
 three hundred fifty-d of this article [he] THE ATTORNEY GENERAL shall be
 required  to  give  the person against whom such action OR PROCEEDING is
 contemplated [appropriate] notice by certified mail and  an  opportunity
 to  show[,  either  orally  or]  in writing[,] WITHIN FIVE BUSINESS DAYS
 AFTER RECEIPT OF NOTICE why such action should not be commenced,  UNLESS
 A. 8427                             9
 
 THE  ATTORNEY  GENERAL  SHALL  FIND,  IN  ANY CASE IN WHICH THE ATTORNEY
 GENERAL SEEKS PRELIMINARY RELIEF, THAT TO GIVE SUCH NOTICE AND  OPPORTU-
 NITY  IS  NOT  IN  THE PUBLIC INTEREST. In such showing, said person may
 present, among other things, evidence [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  depart-
 ment, division, commission or agency of the state of New York] PROBATIVE
 OF  ANY  AFFIRMATIVE  DEFENSE SAID PERSON MAY RAISE IN SUCH AN ACTION OR
 PROCEEDING.
   § 7. Section 350-d of the general business law, as amended by  chapter
 803 of the laws of 2022,  is amended to read as follows:
   §  350-d.  Civil  penalty.  [(a)]  1. Any person, firm, corporation or
 association 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]  OR THE GREATER OF FIFTEEN THOUSAND DOLLARS OR THREE
 TIMES THE GROSS VALUE OF RESTITUTION FOR EACH  VIOLATION  IF  THE  COURT
 FINDS  EITHER  THAT  THE  DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS
 ARTICLE, OR VIOLATED THIS ARTICLE IN CONNECTION WITH OR DURING AN ABNOR-
 MAL DISRUPTION OF THE MARKET, AS DEFINED BY SECTION THREE HUNDRED  NINE-
 TY-SIX-R  OF  THIS  CHAPTER,  OR  BOTH. SUCH PENALTY shall accrue to the
 state of New York and may be recovered in a civil action  OR  PROCEEDING
 brought by the attorney general.
   2. In any such action OR PROCEEDING it shall be [a complete] AN AFFIR-
 MATIVE  defense  that  the advertisement, ACT OR PRACTICE is [subject to
 and complies with] REQUIRED OR SPECIFICALLY AUTHORIZED BY the rules  and
 regulations  of,  and  the  statutes  administered by, the Federal Trade
 Commission or any official department, division, commission or agency of
 the UNITED STATES OR THIS state [of New York].
   [(b) Notwithstanding subdivision (a) of this section, any firm, corpo-
 ration 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  unlawful  in  connection  with  or  during  an  abnormal
 disruption  of the market 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 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  administered  by the Federal Trade
 Commission or any official department, division, commission or agency of
 the state of New York. For the purposes of this  subdivision,  "abnormal
 disruption  of  the market" shall mean any change in the market, whether
 actual or imminently  threatened,  resulting  from  stress  of  weather,
 convulsion  of  nature,  failure  or shortage of electric power or other
 source of energy, strike, civil disorder, war, military action, national
 or local emergency, or other cause of  an  abnormal  disruption  of  the
 market  which  results in the declaration of a state of emergency by the
 governor.]
   § 8. Severability. If any clause,  sentence,  paragraph,  subdivision,
 section  or part of this act shall be adjudged by any court of competent
 jurisdiction to be invalid, such judgment shall not affect,  impair,  or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph, subdivision, section or part thereof
 directly  involved  in the controversy in which such judgment shall have
 been rendered. It is hereby declared to be the intent of the legislature
 A. 8427                            10
 
 that this act would have been enacted even if  such  invalid  provisions
 had not been included herein.
   §  9.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.