Editor: David Reiss
Brooklyn Law School

May 13, 2019

Unfair, Unlawful and Abusive

By David Reiss

I signed on to a Memorandum in Support of a bill to amend New York’s consumer protection law to make it consistent with the laws of 39 other states and the federal government.  St. John’s Gina Calabrese led this effort.  The Memorandum opens,

STATEMENT OF SUPPORT: The undersigned consumer law professors support S.2407/A.679, which would expand the scope and improve enforcement of General Business Law §349 (“GBL 349”), New York’s statute prohibiting deceptive business acts and practices. By adding unfair, unlawful and abusive to the categories of prohibited conduct, this bill would make New York’s consumer protection policy consistent with the laws of 39 other states and the federal government, reflecting policies integral to a well-functioning marketplace.

BACKGROUND: Enacted almost 50 years ago, GBL 349 prohibits “deceptive” acts and practices. However, it does not currently prohibit unfair, unlawful, and abusive business acts and practices. Most states and the federal government recognize that unfair, unlawful, and abusive acts and practices cause great harm to the public. Traditional businesses have long-standing methods that take advantage of consumers. Modern business developments, products, and services have increased the public’s vulnerability to various harms that may not be encompassed by prohibitions against “deceptive” acts. Technology, collection of personal data, and complex business models (e.g., several entities handling different aspects of a transaction) all play a role. For example:

 Wells Fargo opened millions of unauthorized bank accounts using customer data already in its possession. The Consumer Financial Protection Bureau fined Wells Fargo $100 million using its power to address unfair and abusive practices, not its power to punish deceptive practices.

 New York’s law fails to prevent unfair tactics well-known to consumer experts, including high pressure sales tactics in automobile sales and illegal fees charged by mortgage servicers. Law school clinics have assisted elderly car buyers who were persuaded to relinquish their keys to car dealership staff then detained for hours until they were “worn down” and bought cars or add-ons they didn’t want or need with expensive financing.

Dozens of other states already prohibit unfair practices, such as New York’s neighbors Connecticut, Pennsylvania, and Massachusetts. Even states like Mississippi, Georgia, Tennessee and West Virginia permit consumers to sue for unfair practices. Contrary to fears stoked by business groups, there is no evidence that that has led to an explosion of litigation. And the federal Dodd-Frank Act proscribes abusive consumer financial practices. S.2407/A.679, is not a broad expansion of consumer rights, but more like having New York catch up.

The bill would eliminate the “consumer-oriented” requirement that the courts grafted onto the law. It does not appear in the text of GBL 349. It prevents consumers from holding businesses accountable because meeting the requirement often involves substantial pre-suit investigation. We know of no other state that requires “consumer-oriented” conduct before a court can impose liability.

The bill would improve compliance with and enforcement of GBL 349 because it increases the outdated $50 cap on statutory damages, codifies organizations’ standing to sue, permits class actions, and ensures that a successful plaintiff will be able to recover fees to pay her attorney. Very few consumers will bother to sue for $50, meaning that many bad actors do not have to fear private claims and the law will not be properly enforced. The bill would permit statutory damages of $2,000, which seems modest compared to penalties consumers can obtain under Kansas law of up to $10,000. Strengthening the ability of individuals and organizations to sue businesses for unfair, unlawful, deceptive, and abusive acts ensures that the public will be protected when government agencies do not act to stop illegal practices, whether the reason be different priorities, lack of resources, or lack of impact on a large number of people.

The bill would empower the Attorney General to ensure New Yorkers enjoy a fair and just marketplace and private persons to better protect themselves from unfair, unlawful, abusive, and deceptive practices engaged in by businesses with greater bargaining power and protect the public from ever-evolving anticompetitive and harmful business practices.

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