A00237 Summary:

BILL NOA00237
 
SAME ASSAME AS S00803
 
SPONSORBraunstein
 
COSPNSRThiele, Hevesi, Gunther, Miller MG, Stirpe
 
MLTSPNSR
 
Amd §396-r, Gen Bus L
 
Relates to price gouging; defines unconscionably excessive price for the purposes of prohibiting price gouging during abnormal disruption of the market.
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A00237 Actions:

BILL NOA00237
 
01/09/2019referred to consumer affairs and protection
01/08/2020referred to consumer affairs and protection
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A00237 Committee Votes:

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A00237 Floor Votes:

There are no votes for this bill in this legislative session.
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A00237 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           237
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 9, 2019
                                       ___________
 
        Introduced  by M. of A. BRAUNSTEIN, THIELE, HEVESI, GUNTHER, M. G. MILL-
          ER, STIRPE -- read once and referred  to  the  Committee  on  Consumer
          Affairs and Protection
 
        AN ACT to amend the general business law, in relation to price gouging

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 396-r of the general business law,  as  amended  by
     2  chapter 510 of the laws of 1998, subdivision 4 as amended by chapter 224
     3  of the laws of 2008, is amended to read as follows:
     4    §  396-r.  Price gouging. 1. Legislative findings and declaration. The
     5  legislature hereby finds that during periods of abnormal  disruption  of
     6  the  market caused by strikes, power failures, severe shortages or other
     7  extraordinary adverse circumstances, some parties within  the  chain  of
     8  distribution  of consumer goods have taken unfair advantage of consumers
     9  by charging grossly excessive prices for essential  consumer  goods  and
    10  services.
    11    In  order to prevent any party within the chain of distribution of any
    12  consumer goods from taking unfair advantage of consumers during abnormal
    13  disruptions of the market, the  legislature  declares  that  the  public
    14  interest  requires  that  such conduct be prohibited and made subject to
    15  civil penalties.
    16    2. During any abnormal disruption of the market for consumer goods and
    17  services vital and necessary for  the  health,  safety  and  welfare  of
    18  consumers,  no  party  within the chain of distribution of such consumer
    19  goods or services or both shall sell or offer to sell any such goods  or
    20  services or both for an amount which represents an unconscionably exces-
    21  sive   price.  For  purposes  of  this  section,  the  phrase  "abnormal
    22  disruption of the market" shall mean any change in the  market,  whether
    23  actual  or  imminently  threatened,  resulting  from  stress of weather,
    24  convulsion of nature, failure or shortage of  electric  power  or  other

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02659-01-9

        A. 237                              2
 
     1  source of energy, strike, civil disorder, war, military action, national
     2  or  local  emergency,  or  other  cause of an abnormal disruption of the
     3  market [which], where such abnormal disruption results in  the  declara-
     4  tion  of  a state of emergency by the governor. For the purposes of this
     5  section, the term consumer goods and services  shall  mean  those  used,
     6  bought or rendered primarily for personal, family or household purposes.
     7  This prohibition shall apply to all parties within the chain of distrib-
     8  ution,  including any manufacturer, supplier, wholesaler, distributor or
     9  retail seller of consumer goods or services or both sold by one party to
    10  another when the product sold was located in  the  state  prior  to  the
    11  sale. Consumer goods and services shall also include any repairs made by
    12  any party within the chain of distribution of consumer goods on an emer-
    13  gency basis as a result of such abnormal disruption of the market.
    14    3.  [Whether  a price is unconscionably excessive is a question of law
    15  for the court.
    16    (a) The court's determination that a violation  of  this  section  has
    17  occurred  shall  be  based on any of the following factors: (i) that the
    18  amount of the excess in price is unconscionably extreme;  or  (ii)  that
    19  there  was  an  exercise  of unfair leverage or unconscionable means; or
    20  (iii) a combination of both factors in subparagraphs  (i)  and  (ii)  of
    21  this paragraph.
    22    (b)  In  any proceeding commenced pursuant to subdivision four of this
    23  section, prima facie proof that a violation of this section has occurred
    24  shall include evidence that
    25    (i) the amount charged represents a gross disparity between the  price
    26  of  the  goods or services which were the subject of the transaction and
    27  their value measured by the  price  at  which  such  consumer  goods  or
    28  services  were  sold  or  offered for sale by the defendant in the usual
    29  course of business immediately  prior  to  the  onset  of  the  abnormal
    30  disruption of the market or
    31    (ii)  the  amount charged grossly exceeded the price at which the same
    32  or similar goods or services were readily obtainable by other  consumers
    33  in the trade area.]
    34    (a)  A  price is not an "unconscionably excessive price" if any one of
    35  the following applies:
    36    (i) it is ten percent or less above the seller's price for that  prod-
    37  uct  immediately  prior  to the declaration of the state of emergency by
    38  the governor;
    39    (ii) it is ten percent or less above current prices for  that  product
    40  in any area outside the geographic scope of the declaration of the state
    41  of emergency or an adjoining state, tax-adjusted;
    42    (iii)  it  is  ten percent or less above the sum of the seller's:  (A)
    43  acquisition or replacement cost, whichever is higher; plus (B) the mark-
    44  up customarily applied by the seller in the  usual  course  of  business
    45  immediately  prior  to  the declaration of the state of emergency by the
    46  governor;
    47    (iv) it is attributable to  fluctuations  in  applicable  regional  or
    48  national spot or commodity markets; or
    49    (v)  it  is  a  contract price or price formula agreed to prior to the
    50  declaration of the state of emergency by the governor.
    51    (b) A defendant may rebut a prima facie case with evidence that  addi-
    52  tional costs not within the control of the defendant were imposed on the
    53  defendant for the goods or services.
    54    4.  Where a violation of this section is alleged to have occurred, the
    55  attorney general may apply in the name of the People of the State of New
    56  York to the supreme court of the State of New York within  the  judicial

        A. 237                              3
 
     1  district  in  which  such  violations  are  alleged to have occurred, on
     2  notice of five days, for an order enjoining or restraining commission or
     3  continuance of the alleged unlawful acts. In any  such  proceeding,  the
     4  court  shall  impose  a civil penalty in an amount not to exceed twenty-
     5  five thousand dollars  and,  where  appropriate,  order  restitution  to
     6  aggrieved consumers.
     7    § 2. This act shall take effect immediately.
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