New York City Debt Collection Defense Attorneys

The Ultimate Guide to False-Advertising Law in New York: 22 FAQs

1) What are the elements of false advertising under New York law?

In order for a private plaintiff to state a claim under GBL § 350, she “must allege that a defendant has engaged in

  1. consumer-oriented conduct; that is
  2. materially misleading; and that
  3. plaintiff suffered injury as a result of the allegedly deceptive act or practice.”[1]

The legal elements of false advertising under GBL § 350 claim are identical to those of deceptive business practices under GBL § 349.[2] However, GBL § 350 applies only to “false advertising.”[3]

GBL § 350, which is often used in connection with GBL § 349, prohibits “false advertising,” including false product labels.[4]

2) Which particular statutes govern false advertising under New York law?

The two false-advertising statutes under New York Law:

General Business Law § 350: False advertising unlawful

"False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful."

General Business Law § 350-a: False advertising

“1. The term “false advertising” means advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) 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 the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual...”

3) What other statute is used in conjunction with GBL § 350?

GBL § 349 (Deceptive acts and practices), which prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce.” While deception itself is not an element of the prima facie case, it goes to the “consumer protective purpose” of the statute, which safeguards consumers' “right to an honest market place where trust prevails between buyer and seller.”[5] It is also closely related to the “materially misleading” standard, which “require[es] a showing that a reasonable consumer would have been misled” by the deceptive conduct.[6]

4) Who can sue under New York’s false-advertising statute GBL § 350?

Both private plaintiffs and the Attorney General can bring a false-advertising lawsuit.[7]

5) Can I recover monetary damages for a falsely-advertised product?

Yes. Prevailing private plaintiffs (consumers or competitors) are entitled to damages and/or injunctive relief in successful cases.[8] The court, at its discretion, may also award reasonable attorneys' fees[9] with treble damages (three times actual or compensatory damages).[10] Treble damages require a willfulness to violate GBL § 350, and are limited to ten thousand dollars.[11]

6) How broad is New York’s false-advertising statute GBL § 350?

The scope of GBL § 350 is broad. The New York Court of Appeals in Karlin v. IVF America, Inc. stated that GBL § 350 on its face “applies to virtually all economic activity.”[12] However, just like GBL § 349, GBL § 350 is restricted to transactions that occurred in New York state.[13]

7) Who determines whether the advertising is “sufficiently consumer oriented”?

Courts will conduct a factual analysis to determine whether conduct is sufficiently consumer-oriented under GBL § 350.[14]

8) How is the misleadingness of an advertisement determined?

The test for misleadingness is objective: whether the advertisement is likely to mislead a reasonable person acting reasonably under the circumstances.[15] However, the reasonableness standard may change depending on the facts. For example, in two similar cases involving law-school graduates who sued their law schools for misrepresenting students' post-graduate career prospects, the courts analyzed the allegedly misleading statements according to how a “reasonably well-educated individual” would interpret those statistics.[16]

9) Can false advertising appear on a product’s label?

Yes, false advertising under GBL § 350 includes mislabeling. Galaxy Export, Inc. v. Bedford Textile Products, Inc. 443 N.Y.S.2d 439 (2 Dept. 1981). The definition of mislabel is “to label (something) incorrectly or falsely,” according to Merriam Webster dictionary.

10) Can the New York Attorney General pursue damages for false advertising?

Yes. The Attorney General may elect to sue, and if successful, may cause a court to impose civil penalties up to five thousand dollars per violation under GBL § 350-d.[17] New York Supreme Courts (trial courts in New York) have broad discretion to determine the amount of the civil penalties considering factors such as the defendant's profitability, ability to pay, and the extent of the violations.[18] But defendants enjoy a “safe harbor” defense if they show they complied with “rules, regulations, or statutes administered by the FTC or New York State agencies.[19] Some courts have ruled that compliance with other federal agencies also amount to a complete defense under GBL § 350-d.[20]

Worth noting is that courts have held that federal agency approval of product label did not constitute compliance with GBL § 349c[21] or GBL § 350-d.[22] Nor did the FDA’s non-binding guidance provide a defense to a class action alleging mislabeling as “natural.”[23]

11) Must I be specific in my false-advertising lawsuit?

Yes. Although New York law is liberal in its pleading requirements under CPLR § 3013,[24] conclusory statements should not survive against a good motion to dismiss. Good practice requires pleading the “what, where, when, why, and how” of the bad advertising claim.

12) Top 16 factual issues to consider before bringing a false-advertising lawsuit.

  1. Which advertising claim(s) did you find false, misleading, or deceptive?
  2. Why were the claim(s) false, misleading, or deceptive?
  3. Were the claim(s) measurable and ascertainable (i.e. “20% more room”)?
  4. Were the advertising claim(s) manifested as statements, excerpts, images and/or video?
  5. Was there a disclaimer? If so, was it accurate and prominently displayed?
  6. Did a human being affirm the claim(s) verbally or nonverbally?
  7. Have you spoken to the seller or manufacturer since the purchase seeking clarification?
  8. Did the seller make any post-sale statements or promises relevant to the advertising claim(s)?
  9. Where was the product viewed or purchased?
  10. When and how was the product purchased?
  11. Did you rely on the advertising claim(s) when making the purchase?
  12. Did the advertising claims influence your decision to buy the product? How?
  13. Does the business’s website or social media make or support the same problematic claim(s)?
  14. Were the claim(s) on a label, and if so, have you made a Freedom of Information Act Request (FOIA) to the U.S.D.A (meat and poultry) or F.D.A. (other food products), if applicable?
  15. What details and documentation support any damages claim, whether based on a purchase price, invoices, receipts, or evidence of personal injury or emotional injury?
  16. If you intend to sue for breach of express warranty in New York, have you sent a pre-suit letter as required under UCC § 2-607(3)(a).[25]

13) Does a false-advertising lawsuit require “reliance” on the advertising?

No. Similar to GBL § 349, Section 350 does not require “justifiable reliance” according to the New York Court of Appeals in Koch v. Acker, Merrall & Condit Co.[26] The Koch court made class actions more accessible. Before Koch, courts declined class certification on the grounds that class members could not prove reliance across the class.[27]

Still, plaintiffs must prove an injury causally related to a misrepresentation. In that sense, reliance and causation are “close cousins.” But merely “seeing the misleading statements before coming into possession of the products” was sufficient to establish that causal connection.[28]

Generally, the person “injured” is the one who should sue. Suing “derivatively” (on behalf of aggrieved consumers) appears to be disallowed. For example, in Center for Rheumatology, LLP v. Shapiro, a counterclaiming defendant in a business dispute lacked standing to pursue an unrelated consumer claim on behalf of the partnership’s patients. The court held that Defendant “failed to allege that he was deceived by this practice in any manner, and defendant may not maintain a derivative action on behalf of [the Partnership's] patients.”[29]

14) May advocacy organizations sue on behalf of consumers?

The issue is whether an organization may sue “derivatively”—on behalf of consumers—with no injury to the organization itself.

Generally, under GBL § 349, plaintiffs may not assert “derivative” claims, or those claims alleging indirect injuries resulting from deception experienced by third parties.”[30] Therefore, to state a claim under GBL § 350, a plaintiff must allege that the defendant directed its unlawful conduct at the plaintiff.[31] But if a plaintiff can show that, despite the acts being directed to a third party, the defendant intended harm to be caused to the plaintiff, a case may be made.[32]

This issue was front and center in Voters for Animal Rights v D'Artagnan, Inc. wherein the court cited Blue Cross,[33] which held, “the Legislature did not intend to permit recovery for those suffering from “derivative” or “indirect” injuries – to wit, those occurring “solely as a result of injuries sustained by another party.”[34]

The court in Voters for Animal Rights cited Defendant’s brief:

“If a[n] advocacy organization ... were found to be ‘injured’ any time it encountered allegedly false statements made by businesses touting the virtues of their own products or services – ... whether they be foie gras or fake turkey, trigger locks or guns, vaccines or even abortions – then the advocacy group could drag that business into costly litigation merely because it refuses to believe what the sellers say about their own products or services.”). Plaintiff's argument, if adopted, would recognize a cognizable injury to any organization that opts to spend its resources persuading consumers to boycott a product or service."[35]

Voters for Animals Rights is important in the realm of organizational, social-justice cases because the plaintiff expended significant resources counteracting the defendant’s advertising of foie gras (livers of force-fed ducks or geese). The organizational muscle of Voters for Animals Rights included more than 60,000 supporters in New York State. It spent “hundreds of hours” disseminating information and lobbying against selling of foie gras products in New York. But that was not enough to overcome a general bar for pursuing injuries on behalf of third parties.

15) Do Plaintiffs alleging false advertising have a “heightened pleading standard”?

No. Although the New York Court of Appeals has not yet addressed the issue, the Second Department has held that the pleading-with-particularity requirement of CPLR 3016(b) normally required for claims sounding in fraud does not apply to GBL §§ 349 and 350 causes of action.[36]

16) Must I suffer an “actual injury” in order to sue for false advertising?

Yes, a plaintiff must allege an actual injury to state a cognizable claim.[37] The alleged injury must be actual, and cannot be speculative or based on the “perceived … risk of future injury that may never occur.”[38] A fear of future garnishment based on an unlawfully procured judgment did not allege a recognizable injury—but a lowered credit score based on false reporting stated an injury.[39] The injury must be actual, identifiable, and confirmed. But the injury need not be monetary.[40]

For example, the court in Guzman v. Mel S. Harris and Associates, LLC,[41] acknowledged that “[e]motional harm … satisfies the injury requirement for a claim under … GBL § 349,” and found the plaintiff's “emotional injuries” were sufficient to withstand a summary judgment motion where he claimed to be “stressed and frustrated … to the extent that he left his job as a truck driver because he feared having an accident, and experienced difficulty sleeping and concentrating.”

17) What evidence I should preserve in a false-advertising case?

Preserve any purchase receipt. Capture all communications had with, or made by, the retailer or manufacturer. Locate and preserve marketing campaign material and advertisements. Think expansively about other discoverable electronic and hardcopy evidence.

Parties should consider the necessity of experts, including a consumer-perception expert who could create a consumer-perception survey about the impression of the claim on consumers. Consumer surveys can reveal consumer expectations, which can support the case. Both parties are expected to scrutinize the methodology employed in the surveys. The expert’s qualifications will also be scrutinized.

18) Can an omission constitute a form of deception under GBL § 349?

Yes. Deception need not be an affirmative act, but can also be accomplished through omission. For example, in Miller v. Kaminer, the plaintiff sought a refund for a deposit and prepayment of child care services paid to the defendant, who knew at the time of payment that the owner of the business was terminally ill.[42] The court found that “[t]he failure to inform claimant at the time his child was placed in child care that his deposit and pre-payment would not be reimbursed because of the imminent dire health circumstances is an omission which constitutes a deceptive act.”[43]

19) What is the statute of limitations (time deadline) for false-advertising claims under GBL §§ 349 and 350?

A three-year statute of limitations under CPLR 214(2) governs GBL §§ 349 and 350 claims brought by private plaintiffs.[44] The same period generally applies to claims by the Attorney General, except when the Attorney General seeks prospective injunctive relief.

The limitations period for a GBL § 349 claim begins to run at the time of the injury, not at the time when the injured plaintiff learned or reasonably should have learned of the deception.[45] The time of injury depends on specific facts of the deceptive acts alleged.[46]

The date of injury determination also has important procedural implications long before the limitations period runs. The Second Department has recently reiterated that deceptive practice claims under § 349, and thus by relation, § 350, are claims sounding in tort.[47] As a result, causes of action under § 349 and § 350 are subject to the requirements of GML § 50-e.[48] Under § 50-e, plaintiffs asserting claims against a municipality or government agency are required to serve notice of a claim within 90 days after the claim arose. Claims arise under GBL § 349 and § 350 at the time of injury—triggering both the 90-day service period and statute of limitations.

In addition, a defendant's active concealment of the deception is sufficient to toll the limitations period,[49] even though the mere failure to disclose is insufficient.[50] Under limited circumstances, the courts have also held that the “continuing wrongs” doctrine applied to toll the limitations periods to the date of the last wrongful act.[51] However, continuing effects of earlier unlawful acts cannot toll the limitations period under the doctrine.[52]

20) When was General Business Law § 350 enacted?

GBL § 350 was enacted in 1963 to address weak enforcement false advertising. Neither common law (case law) nor New York Penal law were able to combat false advertising.[53] New York's Attorney General welcomed help to “cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State.”[54] The result was General Business Law § 350, which was designed to be a “a strong deterrent against deceptive business practice,” to “supplement the activities of the Attorney General in the prosecution of consumer fraud complaints,” and to provide consumers with “an honest market place where trust prevails between buyer and seller.”[55]

GBL § 350 borrowed heavily from the Federal Trade Commission Act of 1915 (FTC Act). The phrase “deceptive acts or practices” mirrors the FTC Act so as to harmonize state and federal law.[56] Although politicians debated whether identical wording would create confusion and conflicting law, Governor Rockefeller honored the potential benefits in conformity state with federal law.[57] This is why GBL § 350-c[58] recognizes a defense for FTC compliance. Before taking legal action, the Attorney General must send to the business a “Notice of proposed action,” by certified mail.

21) When and why was GBL § 349 enacted?

General Business Law § 349 was enacted in 1970. At that time, the Attorney General was empowered to enforce it.[59] In 1980, after it became apparent that the Attorney General could provide only minimal enforcement, the New York State Legislature amended the statute to create a private right of action.

That amendment was “intended to afford additional protection for consumers, allowing them to bring suit on their own behalf without relying on the Attorney General for enforcement.[60]

22) What are strong defenses to a false-advertising case?

  • The advertising statement is not materially misleading under “reasonable consumer” standard.
  • Express disclaimers remove the claim’s misleadingness, like an explicit admission of domestic origin if an impression is made that it’s foreign.[61]
  • The misleading statement was nonactionable puffery, which are exaggerations of opinion, such as the “best in town.”
  • The claim is “derivative,” which means that Plaintiff is suing on behalf of an injured party.
  • The statement or conduct at issue constitutes constitutionally protected free speech.[62]
  • A federal law or another New York law preempts the claim. An example is an ingredient challenge on a USDA pre-approved meat or poultry product. But otherwise, courts have generally held that federal laws do not preempt GBL § 350 claims.[63]
  • The statute of limitations, which is three years from the date of injury, has expired.
  • The dispute is subject to binding arbitration.[64]
  • Defendant already complies with FTC regulations or other federal regulations, which invoke the “safe harbor” provisions of GBL § 349(d) or GBL § 350-d.
  • GBL §§ 349 or 350 does not apply to the statements or conduct of municipalities.
  • The primary jurisdiction doctrine, pursuant to which proceedings are stayed pending the outcome of an agency's rulemaking process, applies.[65]

Contact us if you want to speak about any claim that may amount to false advertising.

 

[1] Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 N.Y.S.2d 452, 675 (2012).

[2] The elements of a cause of action under GBL § 349 are: “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act” (Stutman v. Chemical Bank, 95 NY2d 24, 29 [2000]). “Section 349 does not grant a private remedy for every improper or illegal business practice, but only for conduct that tends to deceive consumers” (Schlessinger v. Valspar Corp., 21 NY3d 166, 172 [2013]). Ctr. for Rheumatology, LLP v Shapiro, 65 Misc 3d 1205(A) (Sup Ct 2019).

[3] Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190, 1195 n.1 (2002) (“The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to section 349.”).

[4] § 127:34. GBL § 350, 4F N.Y.Prac., Com. Litig. in New York State Courts § 127:34 (5th ed.).

[5] Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529 ( Ct. App. 1995) (quoting Mem. of Governor Rockefeller, 1970 N.Y. Legis. Ann., at 472).

[6] § 127:14. GBL § 349—Other statutory requirements—“Deceptive act or practice”, 4F N.Y.Prac., Com. Litig. in New York State Courts § 127:14 (5th ed.)

[7] GBL § 350-d (Attorney General's right of action), § 350-e (private party's right of action).

[8] GBL § 350-e.

[9] GBL § 350-e; Koch v. Greenberg, 14 F. Supp. 3d 247, 280, 94 Fed. R. Evid. Serv. 52 (S.D. N.Y. 2014), aff'd, 626 Fed. Appx. 335 (2d Cir. 2015) (denying attorneys' fees under GBL § 350-e and GBL § 349-h).

[10] GBL § 350-e.

[11] GBL § 350-e.

[12] Karlin v. IVF America, Inc., 93 N.Y.2d 282, 290, 690 N.Y.S.2d 495, 712 N.E.2d 662 (1999)

[13] Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314 (2002).

[14] Koch v. Greenberg, 14 F. Supp. 3d 247, 94 Fed. R. Evid. Serv. 52 (S.D. N.Y. 2014), aff'd, 626 Fed. Appx. 335 (2d Cir. 2015) (finding conduct consumer-oriented where the defendant sold a large number of allegedly counterfeit wine bottles at auction to a number of people in addition to the plaintiff).

[15] Andre Strishak & Associates, P.C. v. Hewlett Packard Co., 300 A.D.2d 608, 609, 752 N.Y.S.2d 400, 403 (2d Dep't 2002). Note, however, that there are older cases which differ on this point. “The standard to be applied to determine whether an advertisement is misleading is not whether it is deceptive to the hypothetical reasonable person, but to ‘the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions” De Santis v. Sears, Roebuck and Co., 148 A.D.2d 36, 38, 543 N.Y.S.2d 228, 229 (3d Dep't 1989). “In weighing a statement's capacity, tendency or effect in deceiving or misleading customers, we do not look to the average customer but to the vast multitude which the statutes were enacted to safeguard including the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions.” Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 401 N.Y.S.2d 182, 372 N.E.2d 17, 19 (1977).

[16] See Austin v. Albany Law School of Union University, 38 Misc. 957 N.Y.S.2d 833, 840 (Sup 2013); Bevelacqua v. Brooklyn Law School, 39 Misc. 3d 1216(A), 975 N.Y.S.2d 365, 2013 WL 1761504, at *9 (Sup 2013). The sophistication of the target consumer may skew a court's reasonable consumer analysis. For example, in Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., the Court of Appeals found that a legal resource manual, purchased by the plaintiff legal professionals, could not have materially misled a reasonable consumer into believing it contained full and current laws, even though the manual stated that it contained “the laws and regulations” of one sort and only “selected” or “excerpt[ed]” laws of another. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Company, Inc., 2021 WL 2228800 (N.Y. 2021). The Court's stated reasoning was that the sales contract disclaimed warranties as to the “accuracy, reliability, and currentness” of the manual. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Company, Inc., 2021 WL 2228800, at *5-6 (N.Y. 2021).

[17] GBL § 350-d; People ex rel. Schneiderman v. Sangamon Mills, Inc., 42 Misc. 3d 1225(A), 992 N.Y.S.2d 159 (Sup Ct. 2014) ($25,000 civil penalty awarded to New York State under GBL § 350-d); People ex rel. Schneiderman v. Sign FX, Inc., 993 N.Y.S.2d 645 (Sup. Ct. 2014) (“civil penalties of $5,000 awarded to the State of New York for each deceptive act and practice pursuant to GBL § 350-d”).

[18] People ex rel. Spitzer v. Applied Card Systems, Inc., 834 N.Y.S.2d 558, 563 (3d Dep't 2007), aff'd, 11 N.Y.3d 105, 863 N.Y.S.2d 615 (2008); see also, People ex rel. Schneiderman v. Hudson River Rafting Co., Inc., 40 Misc. 3d 1210(A), 975 N.Y.S.2d 711 (Sup 2013).

[19] GBL § 350.

[20] American Home Products Corp. v. Johnson & Johnson, 672 F. Supp. 135, 144, (S.D. N.Y. 1987) (“Although § 350-c refers only to regulations administered by the Federal Trade Commission (“FTC”), the New York courts have construed that statute to cover regulations by other federal agencies as well.” (citing Mendelson v. Trans World Airlines, Inc., 466 N.Y.S.2d 168 (Sup 1983))).

[21] GBL § 349c Additional civil penalty for consumer frauds against elderly persons

[22] Greene v. Gerber Products Co., 262 F. Supp. 3d 38, 70 (E.D. N.Y. 2017) (finding that the FDA letter approving the defendant's label did not provide a defense under GBL §§ 350-d, 349 (d), since the letter did not constitute a rule or regulation, and the defendant failed to prove compliance with the letter); Carias v. Monsanto Company, 83 Env't. Rep. Cas. (BNA) 1396, Prod. Liab. Rep. (CCH) P 19923, 2016 WL 6803780, at *8 (E.D. N.Y. 2016) (finding that the EPA's approval of the pesticide labels did not provide a safe harbor under GBL §§ 350-d, 349 (d), since it was not conclusive on the compliance with the FIFRA).

[23] In re Frito-Lay North America, Inc. All Natural Litigation, 2013 WL 4647512, at *22 (E.D. N.Y. 2013) (“Again, it is not clear that FDA's guidance on “natural” labeling is a “rule or regulation” within the meaning of §§ 349(d) and 350-d.”).

[24] § 3013. Particularity of statements generally:

“Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”

[25] UCC § 2-607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over

(3) Where a tender has been accepted

(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy....

[26] Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 (2012).

[27] See, e.g., Morrissey v. Nextel Partners, Inc., 880 N.Y.S.2d 874 (Sup 2009), aff'd as modified on other grounds, 895 N.Y.S.2d 580 (3d Dep't 2010) (“Not surprisingly, in light of the element of reliance attendant upon any GBL § 350 claim, this Court's research has failed to disclose a single reported New York case in which a class certification motion for such a cause of action was ultimately successful.”).

[28] Oden v. Boston Scientific Corporation, 330 F. Supp. 3d 877, 902 (E.D. N.Y. 2018), adhered to on reconsideration, 2019 WL 1118052 (E.D. N.Y. 2019).

[29] Id.

[30] In re Nassau County Consol. MTBE (Methyl Tertiary Butyl Ether) Products Liability Litigation, 918 N.Y.S.2d 399 (Sup 2010), judgment entered, 2011 WL 12521632 (N.Y. Sup 2011) (“A plaintiff may not recover damages under GBL § 349 for purely indirect or derivative losses that were the result of third-parties being allegedly misled or deceived.”); see also City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 883 N.Y.S.2d 772, 911 N.E.2d 834, 839 (2009) (“If a plaintiff could avoid the derivative injury bar by merely alleging that its suit would somehow benefit the public, then the very ‘tidal wave of litigation’ … would loom ominously on the horizon.” (internal citations omitted)).

[31] See, e.g., UnitedHealthcare Services, Inc. v. Asprinio, 16 N.Y.S.3d 139, 150 (Sup 2015) (“[S]uch allegedly deceptive acts were not directed at the consumer but rather to a large institutional provider of health insurance or, even more indirectly to the plan sponsors who might see their premiums increase. Such conduct cannot be viewed as consumer related.”).

[32] See, e.g., North State Autobahn, Inc. v. Progressive Ins. Group Co., 953 N.Y.S.2d 96, 105 (2d Dep't 2012) (“Here, the plaintiffs alleged that they were directly injured by the Progressive defendants' deceptive practices in that customers were misled into taking their vehicles from the plaintiffs to competing repair shops that participated in the DRP [(Direct Repair Program)]. The allegedly deceptive conduct was … in an effort to wrest away customers through false and misleading statements. The plaintiffs' alleged injury did not require a subsequent consumer transaction; rather, it was sustained when customers were unfairly induced into taking their vehicles from the plaintiffs' shop to a DRP shop …. The plaintiffs adequately alleged that as a result of this misleading conduct, they suffered direct business loss ….”).

[33] Blue Cross, 3 N.Y.3d at 207.

[34] Voters for Animal Rights v D'Artagnan, Inc., 19-CV-6158 (MKB), 2020 WL 9209257, at *5 [EDNY July 15, 2020], report and recommendation adopted, 19-CV-6158 (MKB), 2021 WL 1138017 [EDNY Mar. 25, 2021]

[35] Voters for Animal Rights v D'Artagnan, Inc., 19-CV-6158 (MKB), 2020 WL 9209257, at *7 [EDNY July 15, 2020], report and recommendation adopted, 19-CV-6158 (MKB), 2021 WL 1138017 [EDNY Mar. 25, 2021]

[36] Joannou v. Blue Ridge Ins. Co., 735 N.Y.S.2d 786, 787 (2d Dep't 2001).

[37] Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (1995).

[38] Michelo v. National Collegiate Student Loan Trust 2007-2, 419 F. Supp. 3d 668, 709 (S.D. N.Y. 2019) (quoting Shafran v. Harley-Davidson, Inc., 2008 WL 763177 (S.D. N.Y. 2008)).

[39] Michelo v. National Collegiate Student Loan Trust 2007-2, 419 F. Supp. 3d 668, 707 (S.D. N.Y. 2019).

[40] Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529 (Ct. App. 1995) (“[A] plaintiff seeking compensatory damages must show that the defendant engaged in a material deceptive act or practice that caused actual, although not necessarily pecuniary, harm.”).

[41] Guzman v. Mel S. Harris and Associates, LLC, 2018 WL 1665252, at *12 (S.D. N.Y. 2018).

[42] Miller v. Kaminer, 88 N.Y.S.3d 792 (N.Y. City Civ. Ct. 2018).

[43] Id.

[44] Corsello v. Verizon New York, Inc., N.Y.S.2d 732, 967 N.E.2d 1177 (2012); Gaidon v. Guardian Life Ins. Co. of America, 96 N.Y.2d 201, 727 N.Y.S.2d 30, 750 N.E.2d 1078 (2001).

[45] Corsello v. Verizon New York, Inc., 944 N.Y.S.2d 732, 967 N.E.2d 1177 (2012) (“[S]tatute runs from the time when the plaintiff was injured.”); Wender v. Gilberg Agency, 276 A.D.2d 311, 312, 716 N.Y.S.2d 40, 42–43 (1st Dep't 2000) (holding that the date of discovery rule cannot extend the limitations period of GBL § 349). Cf. The People of the State of New York v. The Trump Entrepreneur Initiative LLC, 2014 WL 344047 (N.Y. Sup 2014) (holding that the Attorney General's GBL § 349 claim runs from the time of commission of the fraudulent practices, not when they were discovered).

[46] See, e.g., Loiodice v. BMW of North America, LLC, 4 N.Y.S.3d 102, 104, 85 U.C.C. Rep. Serv. 2d 831 (2d Dep't 2015) (holding that where the car owner sued manufacturer, injury occurred at the time of the purchase); Enzinna v. D'Youville College, N.Y.S.2d 729, 730, 266 Ed. Law Rep. 943 (4th Dep't 2011) (holding that the injury of students, who sued their school based on a false promise of their eligibility for chiropractic licenses, occurred when they graduated and learned their ineligibility, as opposed to when they enrolled and paid tuition).

[47] Gaidon v. Guardian Life Ins. Co. of America, 96 N.Y.2d 201, 206, 211, 727 N.Y.S.2d 30, 750 N.E.2d 1078 (2001).

[48] Singh v. City of New York, 189 A.D.3d 1697, 1699, 139 N.Y.S.3d 307 (2d Dep't 2020).

[49] See Pirrelli v. OCWEN Loan Servicing, LLC, 129 A.D.3d 689, 693, 12 N.Y.S.3d 110, 115 (2d Dep't 2015) (holding that the defendants' affirmative concealment of deceptive business practices tolled the limitations period); see also Michelo v. National Collegiate Student Loan Trust 2007-2, 419 F. Supp. 3d 668, 699–700 (S.D. N.Y. 2019). But cf. State ex rel. Spitzer v. Daicel Chemical Industries, Ltd., 42 A.D.3d 301, 303, 840 N.Y.S.2d 8, 12, 2007-2 Trade Cas. (CCH) ¶ 75780 (1st Dep't 2007) (holding that limitations period did not toll because the plaintiff failed to allege concealment existed after the conspiracy ended).

[50] See Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 789, 944 N.Y.S.2d 732, (2012) (internal citation omitted) (“[W]here the alleged concealment consisted of … failure to disclose the wrongs … the defendants were not estopped from pleading a statute of limitations defense.”).

[51] See Harvey v. Metropolitan Life Ins. Co., 34 A.D.3d 364, 827 N.Y.S.2d 6 (1st Dep't 2006); Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 178 F. Supp. 2d 198, 273 (E.D. N.Y. 2001),rev'd on other grounds in part, question certified, 344 F.3d 211 (2d Cir. 2003), certified question accepted, 100 N.Y.2d 636, 769 N.Y.S.2d 196, 801 N.E.2d 417 (2003) and certified question answered, 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 (2004) and judgment rev'd on other grounds, 393 F.3d 312 (2d Cir. 2004) (holding that tobacco company's extended campaigns constitute continuing violations sufficient to toll limitations period). Cf. The People of the State of New York v. The Trump Entrepreneur Initiative LLC, 2014 WL 344047 (N.Y. Sup 2014) (holding that the continuing wrong doctrine did not apply where the deception was a discrete event occurred at particular time).

[52] Lucker v. Bayside Cemetery, 114 A.D.3d 162, 175, 979 N.Y.S.2d 8, 18 (1st Dep't 2013) (holding that where there were only recurring injuries, continuing violation doctrine did not apply).

[53] Mulroney, Deceptive Practices in the Marketplace: Consumer Protection by New York Government Agencies, 3 Fordham Urb. L.J. 491, 499 (1975).

[54] Hansen, Consumer Protection Provisions Prohibiting “Deceptive Practices” and “False Advertising”: Proper Vehicles for the Protection of Intellectual Property, 2 Fordham Intell. Prop. Media & Ent. L.J. 31, 31–32 (1991). Attorney General, Memorandum for the Governor re Senate Int. 1581, Pr. 1604, 1 (Jan. 8, 1963).

[55] Id.

[56] Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, (1995) (citing Mem. of Governor Rockefeller approving L 1970, chs. 43, 44, 1970 McKinney's Session Laws of NY, at 3074 (Mar. 3, 1970)).

[57] Hansen Supra at 33.

[58] General Business Law § 350-c.Notice of proposed action: Before the attorney-general commences an action pursuant to section three hundred fifty-d of this article he shall be required to give the person against whom such action is contemplated appropriate notice by certified mail and an opportunity to show, either orally or in writing, why such action should not be commenced. 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 department, division, commission or agency of the state of New York.

[59] N. State Autobahn, Inc. v. Progressive Ins. Grp. Co., 953 N.Y.S.2d 96, 103 (2012) (citation omitted).

[60] Voters for Animal Rights v D'Artagnan, Inc., 19-CV-6158 (MKB), 2020 WL 9209257, at *4 [EDNY July 15, 2020], report and recommendation adopted, 19-CV-6158 (MKB), 2021 WL 1138017 [EDNY Mar. 25, 2021]

[61] Nelson v. MillerCoors, LLC, 246 F. Supp. 3d 666, 674–676 (E.D. N.Y. 2017); Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 391–392 (E.D. N.Y. 2017). But cf. People by Schneiderman v. Orbital Publishing Group, Inc., 95 N.Y.S.3d 28, 30 (1st Dep't 2019) (holding that disclaimers were insufficiently prominent to negate misleading impression).

[62] If an advertisement is not commercial speech, the First Amendment will protect them from GBL § 350 violations. In New York Public Interest Research Group, Inc. v. Insurance Information Institute, 554 N.Y.S.2d 590, 592 (1st Dep't 1990) the court held that, since the advertisements did not propose a commercial transaction, they were not commercial speech and therefore protected under the First Amendment. Conversely, in Marcus v. Jewish National Fund (Keren Kayemeth Leisrael), Inc. 557 N.Y.S.2d 886 (1st Dep't 1990) the First Amendment was not implicated where the goal of the defendant's speech was to raise money, rather than to make an educational or persuasive argument, despite defendant's status as a nonprofit.

[63] People ex rel. Spitzer v. Applied Card Systems, Inc., 863 N.Y.S.2d 615, (2008) (the Truth-in-Lending Act did not preempt the Attorney General's claim that the bank's credit card solicitations violated GBL §§ 349, 350); Naevus Intern., Inc. v. AT & T Corp., 724 N.Y.S.2d 721, 723 (1st Dep't 2001) (the Federal Communications Act did not preempt the plaintiffs' claim that cellular company's defecting services violated GBL §§ 349, 350); Morelli v. Weider Nutrition Group, Inc., 712 N.Y.S.2d 551, 552 (1st Dep't 2000) (the Nutritional Labeling and Education Act did not preempt the plaintiffs' claim that misrepresentations of nutritional content violated GBL §§ 349, 350). See also, Geffner v. Coca-Cola Company, 343 F. Supp. 3d 246, 250–252 (S.D. N.Y. 2018), aff'd, 928 F.3d 198 (2d Cir. 2019) (the FDCA did not preempt the plaintiffs' claim that the defendant's “diet” labeling on soft drinks violated GBL §§ 349, 350); In re Kind LLC “Healthy and All Natural” Litigation, 287 F. Supp. 3d 457, 464 (S.D. N.Y. 2018) (the National GMO standard law did not preempt the Plaintiffs' claim that defendant's “Non-GMO” labels violated GBL §§ 349, 350); Canale v. Colgate-Palmolive Co., 258 F. Supp. 3d 312, 323 (S.D. N.Y. 2017) (the plaintiffs' claim that the defendant's representation of the whitening effects of its toothpaste violated GBL §§ 349, 350 was not preempted by FDCA since the federal and state requirements were identical).

[64] Andersen v. Walmart Stores, Inc., 2017 WL 661188, at *8 (W.D. N.Y. 2017) (rejecting plaintiff's argument that “the arbitration clause is invalid because his claims are brought pursuant to statute, not contract,” and concluding that “courts routinely enforce arbitration agreements in cases involving alleged violations of GBL §§ 349 & 350 and other consumer protection statutes.”).

[65] Scholder v. Riviana Foods Inc., 2017 WL 2773586, at *2 (E.D. N.Y. 2017) (explaining how “several courts … have invoked the doctrine of primary jurisdiction to stay federal court cases arising from allegedly false or misleading claims on food packaging, pending the outcome of the FDA's most recent rulemaking process,” and applying the doctrine to stay the plaintiff's claim that defendant violated GBL § 349 for labeling its pasta product “all natural” when it allegedly contained trace amounts of herbicide).

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