The question in this case is whether, to assert a claim under General Business Law (GBL) § 349, a plaintiff must allege: deceptive conduct in the sale of a product that is for “personal, family, or household use”; and an injury distinct from the fact that she would not have bought the product without the deceptive conduct.
GBL § 349(a) bars “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in” New York. Plaintiffs bringing a § 349 claim need not allege intent to defraud or justifiable reliance; they need allege only a deceptive act and, if they wish to recover money, actual injury. Court of Appeals case law also requires that the deceptive act be “consumer-oriented.”
Plaintiffs in this case seek to represent a class of purchasers of New York Landlord-Tenant Law, a compilation of statutes and regulations known as the Tanbook that is published by defendant Matthew Bender & Company. Plaintiffs allege that defendant failed to properly update the Tanbook to reflect newly enacted or amended provisions of the New York City rent regulation laws, in violation of GBL § 349(a).
Supreme Court dismissed plaintiffs’ GBL § 349 claim on the ground that they failed to allege consumer-oriented conduct. Relying on First Department precedent, the court noted that conduct is consumer-oriented when it relates to a good and service that is for “personal, family, or household use.” And plaintiffs failed to satisfy this requirement, the court held, because they alleged that the Tanbook was a good or service for professional use, not for personal, family, or household use.
The First Department affirmed the dismissal of the GBL § 349 claim, but on different grounds–namely, that plaintiffs failed to plead actual injury. The only injury that plaintiffs’ alleged was that they had purchased the Tanbook believing it to be accurate and complete when it was not. Yet according to the First Department, plaintiffs had to allege injury beyond their purchase—for instance, that the misrepresentations had inflated the Tanbook’s price.
The Court of Appeals granted plaintiffs leave to appeal.
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