In NY's Legislature Should Fix Runaway Consumer Class Action Damages—Not Make Them Worse,” May 16, 2019, the author's alarmist attack on A.679/S.2407—the bill to bring New York in line with 39 states by banning unfair business acts and practices—got one thing right: Businesses that exploit and lie to their customers should be “terrified” because New York will finally hold them accountable.

New York's consumer protection law has long been lacking, “toothless” even, according to the National Consumer Law Center. The author's solution is to make this law even worse by eliminating the current, paltry $50 penalty. Such statutory damages are less about incentivizing lawsuits than deterring bad conduct. While $50 may have been an effective deterrent in 1970, the “forty-fold increase” of which the author warns would bring the penalty to $2,000—reasonable and effective by modern standards.

The author's concern for small businesses ruined by an “essentially harmless inaccuracy” is, at best, misguided. A.679/S.2407 defines deceptive, unfair and abusive to exclude harmless errors—the conduct must cause injury. Furthermore, A.679/S.2407 benefits small businesses by including them in the law's protections and promoting an honest marketplace.

If, as the author argues, the Legislature intended that statutory damages never be combined with class actions, it could have outright banned them. It did not. Indeed, CPLR § 901(b) explicitly authorizes this scenario. Furthermore, the author overlooks the many procedural hurdles to getting a class action certified. And, of course, there is the matter of having to prove that the business committed widespread deceptive, abusive or unfair conduct.

If a consumer can do all that, do we want to give the business a slap on the wrist and let it go back to scamming its customers? Or do we want to impose a penalty great enough that it cannot be written off as the cost of doing business? What kind of marketplace do New Yorkers deserve?

Ariana Lindermayer is staff attorney for Mobilization for Justice.