The Attorney General focuses on two New York Statutes: Executive Law 63(12) The New York Consumer Protection Act, Article 22-A of the New York

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Susan Parker
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1 The Attorney General focuses on two New York Statutes: Executive Law 63(12) The New York Consumer Protection Act, Article 22-A of the New York General Business Law, 349 and 350 Executive Law 63(12) Empowers AG to bring proceeding for injunctive relief and/or restitution and damages against persons committing repeated or persistent fraudulent or illegal acts. Scope is broad encompassing any conduct which violates state or federal law. People v. Ford Motor Co., 74 N.Y.2d 495 (1989) To obtain injunctive relief, the AG must only show potential to deceive ; the test is whether the act complained of has the capacity or tendency to deceive, or creates an atmosphere conducive to fraud. People v. Apple Health & Sports Clubs, 206 A.D.2d 266 (1 st Dept. 1994); Spitzer v. General Electric Co., Inc., 302 A.D.2d 314 (1 st Dept. 2003). Repeated or persistent does not require substantial number of illegal or fraudulent acts. People v. Princess Prestige Co., 42 N.Y.2d 104 (1977). The statute was meant to protect not only the average consumer, but also the ignorant, the unthinking and the credulous. Spitzer v. Applied Card Systems Inc., 27 A.D.3d 104 (3 rd Dept. 2005). Consumer Protection Act While 349 deals generally with deceptive acts or practices, and 350 is specific to false advertising, the standards are essentially the same. Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314 (2002). Section 349 o Makes unlawful [d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state. o AG has the power under 349(b) to bring an action in the name and on behalf of the people of the State of New York to enjoin... unlawful acts or practices and to obtain restitution of any moneys or property obtained directly or indirectly by any such unlawful acts or practices. o AG has the power to seek a temporary restraining order and preliminary injunction. o It is a complete defense if the acts or practices are subject to and comply with the rules and regulations of, and statutes administered by, the FTC or any official department, division, commission or agency of the United States as such rules, regulations and statutes are interpreted by those agencies or the federal courts. 349(d).

Scope is broad encompassing any conduct which violates state or federal law. People v. Ford Motor Co., 74 N.Y.

2 o 349 applies to virtually all economic activity and its reach is broad to address numerous, ever-changing types of false and deceptive business practices which plague consumers in our State ; it was designed as a broad, remedial statute to relax the traditional barriers to common law fraud. Karlin v. IVF America, Inc., 93 N.Y.2d 282 (1999); Blue Cross and Blue Shield of N.J. v. Philip Morris, Inc., 178 F.Supp. 2d 198 (E.D.N.Y. 2001). o 349(h) permits private rights of action. Section 350 o Makes unlawful [f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state. o False advertising is advertising that is misleading in a material respect. o In determining whether the advertising is misleading, one must take into account not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in light of such representations with respect to the commodity at issue or under such conditions as are customary and usual. In other words, both affirmative misrepresentations and omissions of material facts are actionable. To establish a claim under the Consumer Protection Act, the AG must show: The challenged act or practice was consumer oriented. The alleged deceptive act or practice was misleading in a material way. The plaintiff (i.e., New York consumers) suffered injury as a result of the alleged deceptive act or practice. Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995) The AG does not have to allege or prove scienter or reliance. Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1998). Deceptive Act or Practice An act or practice is deceptive if it is likely to mislead a reasonable consumer acting reasonably under the circumstances. Marcus v. AT&T Corp., 138 F.2d 46 (2d Cir. 1998). A business is not required to anticipate the individual needs of consumers or to guarantee that each consumer has all information relevant to his or her specific situation. Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995) However, when the business alone possesses material information that is relevant to the consumer and fails to provide the information, it can be said to have acted deceptively. Oswego Laborers Local 214 Pension Fund v. -2-

, 178 F.Supp. 2d 198 (E.D.N.Y. 2001). o 349(h) permits private rights of action.

3 Marine Midland Bank, 85 N.Y.2d 20 (1995); Pelman v. McDonald s Corp., 396 F.Supp. 2d 439 (S.D.N.Y. 2005). Materiality The standard is the well-known formulation is the information important to a consumer in that it is likely to affect their choice of, or conduct regarding, a product. Bildstein v. MasterCard Int l Inc., 329 F. Supp. 2d 410 (S.D.N.Y. 2004). In an omission context, the omitted information can be material if it renders other statements that are made regarding the product misleading the common formulation for half truths. Henry v. Rehab Plus, Inc., 404 F.Supp. 2d 435 (E.D.N.Y. 2005). The question of materiality appears to be intertwined with the question of whether the act or practice at issue is deceptive. Injury The AG need not establish injury to consumers to obtain injunctive relief. Porwick v. Fortis Benefits Insurance Co., 2004 U.S. Dist. LEXIS (S.D.N.Y. 2004) However, to establish a claim for restitution or damages, the AG will be required to show such injury. Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995). Claim Against X University The AG will likely allege that X University engaged in deceptive acts and practices, and false advertising, in the following manner: Defenses o Lack of materiality (fact intensive involving testimony of students). o Lack of injury (fact intensive involving analysis of loan transactions and comparison with loans by lenders other than University X s Preferred Lender to students with comparable credit credentials. o Compliance with TILA (which does not require disclosure by credit arranger ; disclosure obligation lies with lender). Duty to Disclose o Under New York law, a duty to disclose arises when the parties stand in a fiduciary or confidential relationship. Brass v. American Film Technologies, 987 F.2d 142, 150 (2d Cir. 1993). Case law indicates that, as a general matter, universities are not fiduciaries of their students. o Apart from disclosure obligations that might arise in the context of a fiduciary duty, under New York law, a party which makes a statement or disclosure with the intention that it be relied upon by others has a duty to -3-

MasterCard Int l Inc., 329 F. Supp. 2d 410 (S.D.N.Y. 2004).

4 make complete disclosure and to avoid omitting information that is required to prevent what is disclosed from being misleading. Brass v. American Film Technologies, 987 F.2d 142, 150 (2d Cir. 1993)(citing Junius Constr. Corp. v. Cohen, 257 N.Y. 393, 400 (1931)). In sum, having decided to identify a preferred lender, and arguably encouraging students to do business with that entity, it could be argued that the university was obligated to disclose the entirety of its relationship with that entity to give meaning and context to its preferred lender designation. Can the AG, in addition to suing X University, name individuals as defendants? The AG may sue individuals as well as the institution. The AG will need to allege that the individuals sued engaged in the acts or practices at issue; it is unclear whether it would be sufficient for the AG to allege that the individuals merely knew of the acts or practices or, in their capacities as overseers of the university s business and activities in general, should have known of the acts or practices. Key Cases Bildstein v. MasterCard Int l Inc., 329 F. Supp. 2d 410 (S.D.N.Y.), demonstrates the importance of the materiality element of a 349 claim. The court dismissed plaintiff s complaint against MasterCard for failure to disclose a 1% foreign currency transaction fee (buried in the exchange rate charged) because the plaintiff did not allege that, if fully informed of the claimed fee, he could have and would have sought out a different and less costly means of making his alleged foreign currency purchases. Similarly, Han v. Hertz Corp., 12 A.D. 3d 195, 784 N.Y.S.2d 106 (1 st Dep t 2004), demonstrates the importance of the injury element of a 349 claim. The court dismissed plaintiff s complaint against a car rental agency for failure to properly disclose fees associated with car damage. The court found that the plaintiff had failed to show that he sustained any actual harm from the failure to disclose the car damage fees. Aixala v. W.E. Hutton & Co., No. 74 Civ. 4393, 1975 U.S. Dist. LEXIS (S.D.N.Y. Feb. 10, 1975), captures the black-letter concept that making a partial or ambiguous statement creates a duty to disclose. Although defendant-borrower had informed plaintiff-lender that no other lender [was] receiving a more favorable rate of interest, defendant-borrower failed to disclose to plaintiff-lender that another lender s loan agreement contained default and acceleration provisions. Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 746 N.Y.S.2d 858 (2002), appears to indicate that the New York Attorney General will only be able to bring an action on behalf of X University s New York students. In Goshen, the Court of Appeals examined the territorial reach of section 349. The Court concluded that to qualify as a prohibited act under the statute, the deception of a consumer must occur in New York. It stands to reason, therefore, that X University s non-new York students would not stand to benefit from any -4-

In sum, having decided to identify a preferred lender, and arguably encouraging students to do business with that entity, it could be argued that the university was obligated to disclose the entirety

5 action by the Attorney General because, as to them, no alleged deception occurred in New York. -5-

Financial Services. New York State s Martin Act: A Primer

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