Ren §353-a to be §353-b, add §353-a, Gen Bus L; amd §104, add §§410 & 411, Fin Serv L; amd §4, St Fin L; amd
§63, Exec L
Provides for securities fraud whistleblower incentives and protections; defines terms; grants whistleblower awards for one or more whistleblowers who voluntarily provide original information to the attorney general that was the basis for a successful covered enforcement action; protects whistleblowers from retaliation; authorizes the attorney general to adopt any necessary rules and regulations; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
7304
2015-2016 Regular Sessions
IN ASSEMBLY
May 4, 2015
___________
Introduced by M. of A. ROBINSON -- (at request of the Department of Law)
-- read once and referred to the Committee on Banks
AN ACT to amend the general business law, the financial services law,
the state finance law and the executive law, in relation to securities
fraud whistleblower incentives and protections
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 353-a of the general business law is renumbered
2 section 353-b and a new section 353-a is added to read as follows:
3 § 353-a. Securities fraud whistleblower incentives and protections.
4 1. Definitions. (a) "Covered enforcement action" shall mean: (i) any one
5 or more enforcement actions brought by the attorney general under
6 section three hundred fifty-three of this article that results in mone-
7 tary sanctions exceeding one million dollars in the aggregate; or (ii)
8 any investigations, inquiries, settlements or any other action brought
9 or made by the attorney general in relation to a violation of this arti-
10 cle that results in monetary sanctions exceeding one million dollars in
11 the aggregate.
12 (b) "Monetary sanctions" shall mean:
13 (i) Any monies ordered to be paid, or that are otherwise paid or
14 forfeited as a result of a covered enforcement action or related action;
15 and (ii) any monies deposited into a disgorgement fund or public benefit
16 fund as a result of a covered enforcement action or related action.
17 (c) "Original information" shall mean information that:
18 (i) is derived from the independent knowledge or analysis of a whist-
19 leblower;
20 (ii) is not known to the attorney general from any other source,
21 unless the whistleblower is the original source of the information; and
22 (iii) is not exclusively derived from an allegation made in a judicial
23 or administrative hearing, in a governmental report, hearing, audit or
24 investigation or from the news media, unless the whistleblower is a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07595-03-5
A. 7304 2
1 source of the information. For purposes of this subparagraph: (A) an
2 allegation is not made in a governmental report or investigation because
3 it was disclosed or provided pursuant to article six of the public offi-
4 cers law, or under any other federal, state or local law, rule or
5 program enabling the public to request, receive or view documents or
6 information in the possession of public officials or public agencies;
7 and (B) an allegation is not made in the news media merely because
8 information of allegations or transactions have been posted on the
9 internet or on a computer network.
10 (d) "Related action" shall mean any judicial or administrative action
11 brought by a state or local agency or entity based upon the original
12 information provided by a whistleblower to the attorney general pursuant
13 to this section that results in monetary sanctions exceeding one million
14 dollars in the aggregate.
15 (e) "Whistleblower" shall mean any individual or entity who provides
16 or two or more individuals or entities acting jointly who provide infor-
17 mation to the attorney general relating to a violation of this article.
18 2. Whistleblower awards. (a) One or more whistleblowers who voluntar-
19 ily provide original information to the attorney general that was the
20 basis for a successful covered enforcement action, or a related action,
21 shall, in accordance with the provisions of this section, be entitled to
22 receive between ten and thirty percent of the monetary sanctions that
23 result from such action. Any payment to a person pursuant to this para-
24 graph shall be made from the monetary sanctions of the covered enforce-
25 ment action or related action.
26 (b) A whistleblower who provides the attorney general with information
27 related to information previously reported to the attorney general by a
28 whistleblower who is eligible for an award under this section shall not
29 be entitled to an award, unless the information provided by the second
30 whistleblower materially adds to the information reported to the attor-
31 ney general by the first whistleblower.
32 (c) The determination of the amount of an award made within the range
33 established by this section shall be solely in the discretion of the
34 attorney general. In determining the amount of an award made within the
35 range established by this section, the attorney general shall take into
36 consideration the following factors:
37 (i) the significance of the information provided by the whistleblower
38 to the success of the covered enforcement action or related action;
39 (ii) the degree of assistance provided by the whistleblower and any
40 legal representative of the whistleblower in the covered enforcement
41 action or related action;
42 (iii) the interest of the state in deterring violations of this arti-
43 cle and promoting the reporting by whistleblowers of information relat-
44 ing to such violations; and
45 (iv) such additional relevant factors as the attorney general may
46 establish by rule or regulation.
47 (d) No award shall be made to any whistleblower if the attorney gener-
48 al shall determine that the whistleblower:
49 (i) is, or was at the time the whistleblower acquired the original
50 information submitted to the attorney general, a member, officer or
51 employee of a federal, state or local law enforcement agency that regu-
52 lates securities or that prosecutes securities violations;
53 (ii) was convicted of a criminal violation related to the covered
54 enforcement action for which the whistleblower otherwise could receive
55 an award under this section;
A. 7304 3
1 (iii) materially failed to submit information to the attorney general
2 in such form as the attorney general may require;
3 (iv) is, or was at the time the whistleblower acquired the original
4 information submitted to the attorney general, an officer or employee of
5 a self-regulatory organization that regulates securities and who has a
6 duty by virtue of such position to investigate or report a securities
7 violation; provided that this subparagraph shall not apply if the whist-
8 leblower reported the original information to such self-regulatory
9 organization and the attorney general determines that the organization
10 did not take adequate measures within sixty days to investigate or sanc-
11 tion conduct that would be a violation of this article; or
12 (v) (A) knowingly and willfully makes false, fictitious or fraudulent
13 statements or representations to the attorney general when submitting
14 information under this section, or (B) uses any false writing or docu-
15 ment knowing the writing or document contains any false, fictitious or
16 fraudulent statement or entry when submitting information under this
17 section.
18 (e) (i) Any determination made under this subdivision, including
19 whether, to whom, or in what amount to make awards, shall be in the
20 discretion of the attorney general; provided that such amount shall
21 conform to the range established by paragraph (a) of this subdivision,
22 and shall take into account the factors listed in paragraph (c) of this
23 subdivision.
24 (ii) Any such determination may be challenged in accordance with arti-
25 cle seventy-eight of the civil practice law and rules, provided that any
26 such challenge shall be brought within forty-five days of the date of
27 any such determination.
28 (f) No contract with the department of law or any other agency shall
29 be necessary for any whistleblower to receive an award under this
30 section.
31 (g)(i) Any whistleblower who makes a claim for an award under this
32 section may be represented by counsel.
33 (ii) Any whistleblower who anonymously makes a claim for an award
34 under this section shall be represented by counsel if the whistleblower
35 anonymously submits the information upon which the claim is based. Prior
36 to the payment of an award, a whistleblower shall disclose the identity
37 of the whistleblower and provide such other information as the attorney
38 general may require, directly or through counsel for the whistleblower.
39 (h)(i) The attorney general shall not disclose any information which
40 could reasonably be expected to reveal the identity of a whistleblower,
41 unless and until such information is required to be disclosed to a party
42 in connection with an action or proceeding brought by the attorney
43 general, a lawfully issued subpoena by a federal or state law enforce-
44 ment authority, or otherwise by a court order. Such information shall be
45 deemed information exempted from disclosure under article six of the
46 public officers law.
47 (ii) Notwithstanding the preceding subparagraph, without the loss of
48 its status as confidential in the hands of the attorney general, all
49 information referred to in this subdivision may, when determined by the
50 attorney general to be necessary to accomplish the purposes of this
51 article, be made available to the appropriate regulatory and law
52 enforcement authorities of this state, another state, the federal
53 government, foreign governments, or self-regulatory organizations. Each
54 regulatory or law enforcement authority to which the attorney general
55 makes available the information referred to in the preceding subpara-
A. 7304 4
1 graph shall agree to maintain such information in accordance with such
2 assurances of confidentiality as the attorney general deems appropriate.
3 3. Retaliation. (a)(i) It shall be unlawful for any current or
4 prospective employer, contractor or agent to discharge, demote, suspend,
5 threaten or harass, directly or indirectly, or in any other manner
6 discriminate against any person in hiring or in the terms and conditions
7 of employment or contracting because of any lawful act done by such
8 person: (A) in providing information to the attorney general pursuant to
9 this section; (B) in initiating, testifying in or assisting in any
10 investigation or covered enforcement action under this article, or any
11 related action; or (C) in reporting any violation of this article to
12 another government entity, to a direct supervisor or to a compliance
13 officer of such employer, contractor or agent.
14 (ii) Any person who is discharged, demoted, suspended, threatened or
15 harassed or in any other manner discriminated against in the terms and
16 conditions of employment, or otherwise harmed or penalized by an employ-
17 er, or a prospective employer, because of lawful acts done by such
18 person or associated others in furtherance of any covered enforcement
19 action or related action or other efforts to stop one or more violations
20 of this article, including but not limited to reporting such violations
21 to any government entity, to a direct supervisor or to a compliance
22 officer of such employer or prospective employer, shall be entitled to
23 all relief necessary to make such person whole. Such relief shall
24 include but not be limited to:
25 (A) an injunction to restrain continued discrimination;
26 (B) hiring, contracting or reinstatement to the position such person
27 would have had but for the discrimination or to an equivalent position;
28 (C) reinstatement of full fringe benefits and seniority rights;
29 (D) payment of two times back pay, plus interest; and
30 (E) compensation for any special damages sustained as a result of the
31 discrimination, including litigation costs and reasonable attorneys'
32 fees.
33 (b) For purposes of this subdivision, a "lawful" act shall include,
34 but not be limited to, obtaining or transmitting to the attorney general
35 or private counsel employed to investigate or potentially file with the
36 attorney general information relating to a violation of this article,
37 even though such act may violate a contract, severance agreement,
38 employment term, or duty owed to the employer or contractor.
39 (c) Any person seeking relief pursuant to subparagraph (ii) of para-
40 graph (a) of this subdivision may bring an action in the appropriate
41 supreme court for the relief provided in this subdivision. A civil
42 action under this subdivision shall be commenced no later than ten years
43 after the date on which the violation of this article is committed.
44 4. No waiver or preemption. (a) This section shall not: (i) preempt,
45 limit or restrict the authority or discretion of the attorney general to
46 investigate or enforce violations of this article; (ii) limit any powers
47 granted elsewhere in this chapter and other laws to the attorney gener-
48 al, state agencies or local governments to investigate or enforce possi-
49 ble violations of this article; (iii) authorize a private right of
50 action involving fraudulent practices in connection with the securities;
51 (iv) prevent or prohibit a person from voluntarily disclosing any infor-
52 mation concerning a violation of this article to any law enforcement
53 agency or self-regulatory organization; or (v) preempt, limit, restrict
54 or otherwise affect the rights and rewards provided to qui tam plain-
55 tiffs under article thirteen of the state finance law.
A. 7304 5
1 (b) The rights and remedies provided for in this section may not be
2 waived by any agreement, policy form, or condition of employment. No
3 salary or wages earned by the whistleblower during his or her employ-
4 ment, nor any consideration provided the whistleblower in connection
5 with his or her severance from such employment, related to original
6 information or the covered enforcement action or related action may be
7 recouped by any right of action brought by the employer.
8 (c) Nothing in this section shall be deemed to diminish the rights,
9 privileges, or remedies of any whistleblower under any federal or state
10 law, or under any collective bargaining agreement.
11 5. Regulations. The attorney general is authorized to adopt such rules
12 and regulations as are necessary to effectuate the purposes of this
13 section; provided that the attorney general shall consult with the
14 superintendent of the department of financial services prior to propos-
15 ing such rules or regulations.
16 § 2. Subsection (a) of section 104 of the financial services law is
17 amended by adding five new paragraphs 6, 7, 8, 9 and 10 to read as
18 follows:
19 (6) "Covered judicial or administrative action" shall mean: (A) any
20 one or more judicial or administrative actions brought by the department
21 under the insurance law, the banking law or this chapter that results in
22 monetary sanctions exceeding one million dollars in the aggregate; and
23 (B) any investigations, inquiries, settlements or any other actions
24 brought or made within the sole discretion of the superintendent, by the
25 department under the insurance law, the banking law or this chapter that
26 result in monetary sanctions exceeding one million dollars in the aggre-
27 gate.
28 (7) "Monetary sanctions" shall mean:
29 (A) any monies ordered to be paid, or that are otherwise paid or
30 forfeited as a result of a covered judicial or administrative action or
31 any settlement of such action, or related action; and
32 (B) any monies deposited into a disgorgement fund or public benefit
33 fund as a result of a covered judicial or administrative action or any
34 settlement of such action, or related action.
35 (8) "Original information" shall mean information that:
36 (A) is derived from the independent knowledge or analysis of a whist-
37 leblower;
38 (B) is not known to the department from any other source, unless the
39 whistleblower is the original source of the information; and
40 (C) is not exclusively derived from an allegation made in a judicial
41 or administrative hearing, in a governmental report, hearing, audit or
42 investigation or from the news media, unless the whistleblower is a
43 source of the information. For purposes of this subparagraph: (i) an
44 allegation is not made in a governmental report or investigation because
45 it was disclosed or provided pursuant to article six of the public offi-
46 cers law, or under any other federal, state or local law, rule or
47 program enabling the public to request, receive or view documents or
48 information in the possession of public officials or public agencies;
49 and (ii) an allegation is not made in the news media merely because
50 information of allegations or transactions have been posted on the
51 internet or on a computer network.
52 (9) "Related action" shall mean any judicial or administrative action
53 brought by another state or local agency or entity based upon original
54 information provided by a whistleblower to the department that results
55 in monetary sanctions exceeding one million dollars in the aggregate.
A. 7304 6
1 (10) "Whistleblower" shall mean any individual or entity who provides
2 or two or more individuals acting jointly who provide information relat-
3 ing to a violation of the banking law, the insurance law, this chapter
4 or rules and regulations promulgated thereunder to the department.
5 § 3. The financial services law is amended by adding two new sections
6 410 and 411 to read as follows:
7 § 410. Financial services whistleblower awards. (a) (1) In any
8 covered judicial or administrative action, or related action, one or
9 more whistleblowers who voluntarily provide original information to the
10 department that was the basis for the successful judicial or administra-
11 tive action, or a related action, shall, in accordance with the
12 provisions of this section, be entitled to receive between ten and thir-
13 ty percent of the monetary sanctions that result from such action. Any
14 payment to a person pursuant to this paragraph shall be made from the
15 monetary sanctions of the covered judicial or administrative action, or
16 related action.
17 (2) A whistleblower who provides the department with information
18 related to information previously reported to the department by a whist-
19 leblower who is eligible for an award under this section shall not be
20 entitled to an award, unless the information provided by the second
21 whistleblower materially adds to the information reported to the depart-
22 ment by the first whistleblower.
23 (3) Any amount paid under paragraph one of this subsection shall be
24 first applied in accordance with the provisions of such paragraph before
25 being applied, if applicable, in accordance with subparagraph (B) of
26 paragraph one of subsection (a) of section four hundred eight of this
27 article.
28 (b)(1) The determination of the amount of an award made within the
29 range established by this section shall be solely in the discretion of
30 the superintendent.
31 (2) In determining the amount of an award made within the range estab-
32 lished by this section, the superintendent shall take into consideration
33 the following factors:
34 (A) the significance of the information provided by the whistleblower
35 to the success of the covered judicial or administrative action;
36 (B) the degree of assistance provided by the whistleblower and any
37 legal representative of the whistleblower in a covered judicial or
38 administrative action;
39 (C) the interest of the department in deterring violations of the
40 banking law, the insurance law or this chapter and promoting the report-
41 ing by whistleblowers of information relating to such violations; and
42 (D) such additional relevant factors as the superintendent may estab-
43 lish by rule or regulation.
44 (c) No award shall be made to any whistleblower if the superintendent
45 shall determine that the whistleblower:
46 (1) is, or was at the time the whistleblower acquired the original
47 information submitted to the department, a member, officer or employee
48 of a federal, state or local law enforcement agency that regulates bank-
49 ing, insurance or financial services products; or
50 (2) is, or was at the time the whistleblower acquired the original
51 information submitted to the department, an officer or employee of a
52 self-regulatory organization that regulates banking, insurance or finan-
53 cial services products and who has a duty by virtue of such position to
54 investigate or report a legal violation involving banking, insurance, or
55 financial services products; provided that this subparagraph shall not
56 apply if the whistleblower properly reported the original information to
A. 7304 7
1 such self-regulatory organization and the superintendent determines that
2 the organization did not take adequate measures within sixty days to
3 investigate conduct that would be a violation of this article; or
4 (3) was convicted of a criminal violation related to the covered judi-
5 cial or administrative action for which the whistleblower otherwise
6 could receive an award under this section; or
7 (4) materially failed to submit information to the department in such
8 form as the department may require; or
9 (5)(A) knowingly and willfully makes false, fictitious or fraudulent
10 statements or representations to the department when submitting informa-
11 tion under this section, or (B) uses any false writing or document know-
12 ing the writing or document contained false, fictitious or fraudulent
13 statements or entries when submitting information under this section.
14 (d) (1) Any whistleblower who makes a claim for an award under this
15 section may be represented by counsel.
16 (2) Any whistleblower who anonymously makes a claim for an award under
17 this section shall be represented by counsel if the whistleblower anony-
18 mously submits the information upon which the claim is based. Prior to
19 the payment of an award, a whistleblower shall disclose the identity of
20 the whistleblower and provide such other information as the department
21 may require, directly or through counsel for the whistleblower.
22 (e) No contract with the department shall be necessary for any whist-
23 leblower to receive an award under this section, unless otherwise
24 required by the department by rule or regulation.
25 (f) Any determination made under this section shall be solely in the
26 discretion of the superintendent; provided that such award shall be in
27 the ranges established by paragraph one of subsection (a) of this
28 section, and the superintendent shall take into account the factors
29 listed in paragraph two of subsection (b) of this section in determining
30 the amount of the award. Any such determination may be challenged in
31 accordance with article seventy-eight of the civil practice law and
32 rules, provided that any such challenge shall be brought within forty-
33 five days of the date of any such determination under challenge.
34 § 411. Retaliation protections. (a) No current or prospective employ-
35 er, contractor or agent may discharge, demote, suspend, threaten or
36 harass, directly or indirectly, or in any other manner discriminate
37 against any person in hiring or in the terms and conditions of employ-
38 ment because of any lawful act done by such person:
39 (1) in providing information to the department in accordance with this
40 section;
41 (2) in initiating, testifying in or assisting in any investigation or
42 judicial or administrative action of the department or related action;
43 or
44 (3) in reporting any violation of the insurance law, the banking law
45 or this chapter to another government entity, to a direct supervisor or
46 to a compliance officer of such employer, contractor or agent.
47 (b)(1) Any person who is discharged, demoted, suspended, threatened or
48 harassed or in any other manner discriminated against in the terms and
49 conditions of employment, or otherwise harmed or penalized by an employ-
50 er, or a prospective employer, because of lawful acts done by such
51 person or associated others in furtherance of any covered judicial or
52 administrative action or related action or other efforts to stop one or
53 more violations of the insurance law, the banking law or this chapter,
54 including but not limited to reporting such violations to any government
55 entity, to a direct supervisor or to a compliance officer of such
56 employer or prospective employer, shall be entitled to all relief neces-
A. 7304 8
1 sary to make such person whole. Such relief shall include but not be
2 limited to:
3 (A) an injunction to restrain continued discrimination;
4 (B) hiring, contracting or reinstatement to the position such person
5 would have had but for the discrimination or to an equivalent position;
6 (C) reinstatement of full fringe benefits and seniority rights;
7 (D) payment of two times back pay, plus interest; and
8 (E) compensation for any special damages sustained as a result of the
9 discrimination, including litigation costs and reasonable attorneys'
10 fees.
11 (2) For purposes of this section, a "lawful" act shall include, but
12 not be limited to, obtaining or transmitting to the department or
13 private counsel employed to investigate or potentially file with the
14 department information relating to violations of the banking law, the
15 insurance law, or this chapter, even though such act may violate a
16 contract, severance agreement, employment term, or duty owed to the
17 employer or contractor.
18 (3) Any person seeking relief pursuant to this subsection may bring an
19 action in the appropriate supreme court for the relief provided in this
20 section. The limitations period of any such action shall be ten years.
21 (4) Nothing in this section shall be deemed to diminish the rights,
22 privileges, or remedies of any whistleblower under any federal or state
23 law, or under any collective bargaining agreement.
24 (c)(1) Neither the superintendent nor any officer or employee of the
25 department, shall disclose any information, including information
26 provided by a whistleblower to the department, which could reasonably be
27 expected to reveal the identity of a whistleblower, unless and until
28 such information is required to be disclosed to a party in connection
29 with an action or proceedings brought by the superintendent, a lawfully
30 issued subpoena by a federal or state law enforcement authority, or
31 otherwise by a court order. Such information shall be deemed information
32 exempted from disclosure under article six of the public officers law.
33 (2) Notwithstanding the preceding paragraph, without the loss of its
34 status as confidential in the hands of the superintendent, all informa-
35 tion referred to in paragraph one of this subsection may, in the
36 discretion of the superintendent, when determined by the superintendent
37 to be necessary to accomplish the purposes of this article, be made
38 available to the appropriate regulatory and law enforcement authorities
39 of this state, another state, the federal government, foreign govern-
40 ments, or self-regulatory organizations. Each regulatory or law enforce-
41 ment authority to which the superintendent makes available the informa-
42 tion referred to in the preceding paragraph shall agree to maintain such
43 information in accordance with such assurances of confidentiality as the
44 superintendent may determine to be appropriate.
45 (d)(1) Nothing in this section shall limit, or shall be construed to
46 limit the superintendent's authority under sections two hundred two and
47 three hundred one of this chapter, or that of other law enforcement
48 authorities.
49 (2) Nothing in this section shall limit, or shall be construed to
50 limit, the rights and rewards provided to qui tam plaintiffs under arti-
51 cle thirteen of the state finance law.
52 (e) The rights and remedies provided for in this section may not be
53 waived by any agreement, policy form, or condition of employment,
54 including by a pre-dispute arbitration agreement, which shall not be
55 valid or enforceable if it requires arbitration of a dispute arising
56 under this section. No salary or wages earned by the whistleblower
A. 7304 9
1 during his or her employment, nor any consideration provided the whist-
2 leblower in connection with his or her severance from such employment,
3 related to original information or the covered judicial or administra-
4 tive action may be recouped by any right of action brought by the
5 employer.
6 (f) The superintendent is hereby authorized and empowered to promul-
7 gate such rules and regulations as the superintendent shall deem appro-
8 priate for the enforcement of this section; provided that the super-
9 intendent shall consult with the attorney general prior to proposing
10 such rules or regulations.
11 § 4. Paragraph (b) of subdivision 11 of section 4 of the state finance
12 law, as added by section 1 of part HH of chapter 55 of the laws of 2014,
13 is amended to read as follows:
14 (b) Paragraph (a) of this subdivision shall not apply to (1) moneys to
15 be distributed to the federal government, to a local government, or to
16 any holder of a bond or other debt instrument issued by the state, any
17 public authority, or any public benefit corporation; (2) moneys to be
18 distributed to a whistleblower pursuant to section three hundred fifty-
19 three-a of the general business law or section four hundred ten of the
20 financial services law, or to be distributed solely or exclusively as a
21 payment of damages or restitution to individuals or entities that were
22 specifically injured or harmed by the defendant's or settling party's
23 conduct and that are identified in, or can be identified by the terms
24 of, the relevant judgment, agreement to settle, assurance of discontin-
25 uance, or relevant instrument resolving the claim or cause of action;
26 (3) moneys recovered or obtained by a state agency or a state official
27 or employee acting in their official capacity where application of para-
28 graph (a) of this subdivision is prohibited by federal law, rule, or
29 regulation, or would result in the reduction or loss of federal funds or
30 eligibility for federal benefits pursuant to federal law, rule, or regu-
31 lation; (4) moneys recovered or obtained by or on behalf of a public
32 authority, a public benefit corporation, the department of taxation and
33 finance, the workers' compensation board, the New York state higher
34 education services corporation, the tobacco settlement financing corpo-
35 ration, a state or local retirement system, an employee health benefit
36 program administered by the New York state department of civil service,
37 the Title IV-D child support fund, the lottery prize fund, the abandoned
38 property fund, or an endowment of the state university of New York or
39 any unit thereof or any state agency, provided that all of the moneys
40 received or recovered are immediately transferred to the relevant public
41 authority, public benefit corporation, department, fund, program, or
42 endowment; (5) moneys to be refunded to an individual or entity as (i)
43 an overpayment of a tax, fine, penalty, fee, insurance premium, loan
44 payment, charge or surcharge; (ii) a return of seized assets, or (iii) a
45 payment made in error; and (6) moneys to be used to prevent, abate,
46 restore, mitigate, or control any identifiable instance of prior or
47 ongoing water, land or air pollution.
48 § 5. Paragraph (b) of subdivision 16 of section 63 of the executive
49 law, as added by section 4 of part HH of chapter 55 of the laws of 2014,
50 is amended to read as follows:
51 (b) Paragraph (a) of this subdivision shall not apply to any provision
52 in the resolution of a claim or cause of action providing (1) moneys to
53 be distributed to the federal government, to a local government, or to
54 any holder of a bond or other debt instrument issued by the state, any
55 public authority, or any public benefit corporation; (2) moneys to be
56 distributed to a whistleblower pursuant to section three hundred fifty-
A. 7304 10
1 three-a of the general business law, or to be distributed solely or
2 exclusively as a payment of damages or restitution to individuals or
3 entities that were specifically injured or harmed by the defendant's or
4 settling party's conduct and that are identified in, or can be identi-
5 fied by the terms of, the relevant judgment, stipulation, decree, agree-
6 ment to settle, assurance of discontinuance, or relevant instrument
7 resolving the claim or cause of action; (3) moneys recovered or obtained
8 by the attorney general where application of paragraph (a) of this
9 subdivision is prohibited by federal law, rule, or regulation, or would
10 result in the reduction or loss of federal funds or eligibility for
11 federal benefits pursuant to federal law, rule, or regulation; (4)
12 moneys recovered or obtained by or on behalf of a public authority, a
13 public benefit corporation, the department of taxation and finance, the
14 workers' compensation board, the New York state higher education
15 services corporation, the tobacco settlement financing corporation, a
16 state or local retirement system, an employee health benefit program
17 administered by the New York state department of civil service, the
18 Title IV-D child support fund, the lottery prize fund, the abandoned
19 property fund, or an endowment of the state university of New York or
20 any unit thereof or any state agency, provided that all of the moneys
21 received or recovered are immediately transferred to the relevant public
22 authority, public benefit corporation, department, fund, program, or
23 endowment; (5) moneys to be refunded to an individual or entity as (i)
24 an overpayment of a tax, fine, penalty, fee, insurance premium, loan
25 payment, charge or surcharge; (ii) a return of seized assets; or (iii) a
26 payment made in error; and (6) moneys to be used to prevent, abate,
27 restore, mitigate or control any identifiable instance of prior or ongo-
28 ing water, land or air pollution.
29 § 6. This act shall take effect on the ninetieth day after it shall
30 have become a law.
