N.Y. Gen. Bus. Law § 349

Section 349 liability is not preempted when the claim is based on a failure to satisfy applicable federal labeling requirements; compliance with those requirements is a complete defense.

Kaufman v. CVS Caremark Corp. · filed 2016-09-06349(a), 349(d)

The net effect of the foregoing is that CVS must prevail if its label satisfies the requirements of FDCA section 343(r), but neither federal nor state law poses any bar to recovery under NYCPA section 349 to the extent that recovery is predicated on a failure by CVS to comply with the requirements of FDCA section 343(r).

The court held that the plaintiff’s § 349 claim challenging allegedly false or misleading toothpaste labeling was not expressly preempted because it imposed a requirement identical to federal law.

Canale v. Colgate-Palmolive Co. · filed 2017-06-23(a)

Because that general prohibition is identical to the requirement Plaintiff seeks to impose through her claims under state law, those claims are not expressly preempted.

A § 349 claim is not preempted when it does not impose labeling requirements different from or additional to FIFRA, and the plaintiff adequately stated such a claim.

Bourbia v. S.C. Johnson & Son, Inc. · filed 2019-03-21

Plaintiff's GBL §§ 349 and 350 claims are not preempted to the extent that they do not impose labeling requirements different or in addition to those under FIFRA, and Plaintiff adequately states a claim.

Section 349(d) makes compliance with applicable federal rules a complete defense, so slack-fill that passes federal-law requirements cannot violate § 349; the court also required consumer-oriented conduct, material misleadingness, and resulting injury.

Green v. Sweetworks Confections, LLC · filed 2019-08-21(d)

Although New York’s General Business Law does not contain safe harbors for functional slack-fill, it does make it “a complete defense that the act or practice is . . . subject to and complies with the rules and regulations of, and the statutes administered by, . . . any official department, division, commission or agency of the United States as such rules, regulations or statutes are interpreted by . . . federal courts.” N.Y. Gen. Bus. Law § 349(d). Thus, “if slack-fill passes muster under federal law, there is no state-law violation.”

Section 349(d)’s complete-defense provision does not exculpate conduct predating the effective date of the relied-on federal regulation.

Harte v. Ocwen Financial Corp. · filed 2019-08-22(d)

However, as Plaintiff argues in her opposition, this regulation was not in effect until 2012, and therefore, does not provide “exculpation for [Defendants’] actions at the time.”

A GBL § 349 claim based on a furnisher’s inaccurate credit reporting and failure to investigate disputed debts is preempted by the FCRA.

Munroe v. Nationstar Mortgage LLC · filed 2016-09-13

These allegations relate to Plaintiffs claims that Nationstar reported incorrect and inconsistent debt amounts to credit reporting agencies and failed to conduct an investigation upon his dispute of the debt. As such, these allegations “concern” Nationstar’s responsibilities as a furnisher, including both reporting accurate information and complying with obligations to investigate disputed debts, and are therefore preempted by the plain wording of section 1681t (b)(1)(F).

The court held that claims under N.Y. Gen. Bus. Law § 349 are not preempted by the FDCA, although the complaint was dismissed without prejudice for failure to satisfy Rule 8 and state a claim.

LETTIERI v. MONDELEZ INTERNATIONAL GROUP · filed 2025-04-24

However, Plaintiff’s New York’s General Business Law §§ 349 and 350 claims are not preempted by the FDCA.

A § 349 claim may avoid copyright preemption when it targets deceptive effects on consumers, but this claim was preempted because it challenged the defendants’ copyright as equivalent to rights protected by copyright law.

We Shall Overcome Foundation v. The Richmond Organization, Inc. · filed 2016-11-21

The Plaintiffs’ GBL § 349 claim is preempted. The right being challenged through this claim is the very right protected by the Copyright Act — the right to restrict the performance and distribution of a copyrighted work.

A GBL § 349 claim is preempted when it challenges rights equivalent to the Copyright Act’s exclusive rights to restrict the performance and distribution of a copyrighted work.

Saint-Amour v. Richmond Org., Inc. · filed 2019-03-27

The Plaintiffs' GBL § 349 claim is preempted. The right being challenged through this claim is the very right protected by the Copyright Act - the right to restrict the performance and distribution of a copyrighted work.

Section 349 does not treat a cookie labeled “shortbread” as promising it contains butter when the packaging makes no such representation.

Howze v. Mondelez Global LLC · filed 2023-01-05

Absent any additional representations about how the flavor and texture are achieved, the use of the term “shortbread” is not misleading.

Section 349 requires consumer-oriented conduct that materially misleads a reasonable consumer and causes injury, and the court held that Sapporo’s clear origin disclosure prevented deception and defeated the claim.

Bowring v. Sapporo U.S.A., Inc. · filed 2017-02-10

To assert a claim under either section, a plaintiff must establish that the defendant engaged in consumer oriented conduct that is materially misleading, and plaintiff was injured as a result of the deceptive act or practice. ... Because the Court finds that the Defendant’s conduct would not mislead a reasonable consumer, the Court grant’s Defendant’s motion to dismiss Plaintiffs claims brought under N.Y. G.B.L. §§ 349 and 350.

Intent to mislead or defraud is unnecessary under § 349, which uses an objective reasonable-consumer standard.

Armstrong v. Costco Wholesale Corp. · filed 2017-02-17

Intent to mislead or defraud need not be proven, but New York courts have adopted “an objective definition of deceptive acts and practices ... those likely to mislead a reasonable consumer acting reasonably under the circumstances.”

Section 349 uses an objective reasonable-consumer standard for misleadingness.

Hu v. Herr Foods, Inc. · filed 2017-04-24

Courts evaluate whether a statement is misleading in violation of GBL § 349 based on the objective standard of the “reasonable consumer.”

Section 349 requires a plaintiff to allege statements likely to mislead a reasonable consumer acting reasonably under the circumstances; the court applied that standard to the challenged labeling theories.

Davis v. Hain Celestial Grp., Inc. · filed 2018-04-03

To survive a motion to dismiss, plaintiff must allege statements that were "likely to mislead a reasonable consumer acting reasonably under the circumstances."

A § 349 claim fails when it is not plausible that a reasonable consumer would interpret the product’s brand label as meaning the product contains no trace amounts of glyphosate.

Axon v. Citrus World, Inc. · filed 2018-12-10

Because the court concludes that it is not plausible to allege that a reasonable consumer would interpret the brand label "Florida's Natural" as meaning that the product contains no traces of glyphosate, plaintiff's NYGBL claims are dismissed.

At the pleading stage, the court held that a § 349 claim may proceed when the alleged conduct is likely to mislead a reasonable consumer acting reasonably under the circumstances.

Comfort v. Ricola USA, Inc. · filed 2019-11-15(a)

“the deceptive conduct was ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’”

Section 349 requires plaintiffs to plausibly allege that a significant portion of consumers acting reasonably could be misled by the challenged statements.

Axon v. Fla.'s Nat. Growers, Inc. · filed 2020-05-29(a)

To survive a motion to dismiss, “[p]laintiffs must plausibly allege ‘that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled’” by the relevant statements.

Section 349 judges a product label in context: a reasonable consumer would understand a hand wipe’s germ-killing claim to concern germs commonly found on hands.

Leboeuf v. Edgewell Personal Care Company · filed 2023-08-23(a)

Defendants' Product, however, is specifically marketed for use on the hands, so only those "germs" commonly found on the hands would be relevant to determining whether a reasonable consumer would be misled by Defendants' marketing.

For § 349 claims, statutory damages are capped at $50 and can be assessed on the basis of common proof.

Madden v. Midland Funding, LLC · filed 2017-02-27(h)

can be assessed on the basis of common proof,, as they are capped at $50.

The court expressly held that N.Y. GBL § 349 claims use Rule 8(a)'s liberal pleading standard rather than Rule 9(b), explaining that § 349 reaches deceptive practices beyond common-law fraud.

Winter v. American Institute of Medical Sciences & Education · filed 2017-03-17

Claims under N.Y. GBL § 349, however, are examined under the more liberal pleading standard of Fed. R. Civ. P. 8(a). ... Section 349 “extends well beyond common-law fraud to cover a broad range of deceptive practices,” and as such, claims under § 349 are not subject to the heightened pleading standard of Fed. R. Civ. P. 9(b).

A claim under GBL § 349 is not subject to Rule 9(b)’s heightened pleading standard because it does not require the elements of common-law fraud.

People of the State of New York v. Debt Resolve, Inc. · filed 2019-07-03

The Court concludes that the heightened standard is not applicable.

A § 349 claim based entirely on alleged fraudulent conduct must meet Rule 9(b)’s heightened pleading standard.

Elson v. Black · filed 2023-01-05§ 349

The district court therefore correctly subjected the Section 349 and 350 claims to the heightened pleading requirements of Rule 9(b).

Section 349 does not recognize a privacy injury from collecting aggregated, anonymized browsing data unless the data can be associated with individual users or another factual basis makes the privacy injury cognizable.

Mount v. Pulsepoint, Inc. · filed 2017-03-27(b)

We express no view on whether an injury needs to be “material” to satisfy the statutory requirement. Rather, we conclude only that, absent any allegations that the data collected would or could be associated with individual users (or some other alleged factual basis for a cognizable privacy injury), there is no basis in New York law to recognize a cognizable injury under § 349.

A § 349 claim may seek recovery for a plaintiff’s directly suffered business loss even when consumers suffer related harm; only wholly derivative injury is excluded.

Ciccio v. SmileDirectClub, LLC · filed 2020-06-02§ 349

The injuries that Dr. Ciccio has alleged, however, were not derivative of the injuries suffered by SmileDirect customers. If a potential patient chose SmileDirect over Dr. Ciccio, then Dr. Ciccio’s loss of business occurred, regardless of how successful or unsuccessful the patient’s SmileDirect treatment ultimately was.

A private § 349 plaintiff need not prove reliance, but must show that a material deceptive act caused injury; an unseen misrepresentation cannot cause the plaintiff's injury.

Case name unavailable · filed 2025-09-03§ 349

While “[rJeliance is not an element under [GBL] § 349,” a plaintiff must nonetheless show — under both GBL § 349 and GBL § 350 — that the “defendant’s material-deceptive act caused [plaintiff] injury.” ... And a plaintiff cannot have been injured by an alleged misrepresentation that the plaintiff never saw.

Under § 349, injury and causation may be pleaded either by alleging exposure to deceptive conduct that caused the purchase and harm or by alleging deceptive advertising caused a price premium that the plaintiff would not otherwise have paid.

Case name unavailable · filed 2025-11-12§ 349

It is well established that a plaintiff can prove injury and causation under GBL section 349 in at least one of two ways.

An asset purchaser without continuity of ownership is not liable for the seller’s pre-sale § 349 violations under the traditional test for successor liability.

Wang v. Abumi Sushi Inc. · filed 2017-08-14

As a result, because there is no genuine dispute of material fact on this indispensable factor, the Court concludes as a matter of law that the Appearing Defendants cannot be held liable for FLSA, NYLL, or § 349 violations predating the June 2, 2015 sale under the traditional test for successorship liability.

The court held that the plaintiffs’ New York deceptive-practices claims under § 349 could proceed because their allegations that therapeutic supplement claims were misleading without the required disclaimer were sufficient at the pleading stage.

Arora v. GNC Holdings, Inc. · filed 2019-11-15

In claims five and six, the plaintiffs challenge GNC’s deceptive marketing and labeling practices under the New York Consumer Protection Law. ... The court denies the motion for the reasons in the previous section.

Section 349 requires actual or pecuniary harm separate from the alleged deception; deception cannot serve as both the wrongful act and the injury.

Meyer, Suozzi, English & Klein, P.C. v. Higbee · filed 2020-03-09(h)

Construing the facts as favorably to the Plaintiff as possible, neither theory can reasonably support a damages award in excess of $75,000, because Section 349 only permits “actual or pecuniary harm that is separate and apart from the alleged deception itself.”

A § 349 plaintiff may establish injury through an alleged overpayment or price premium caused by deceptive energy pricing, even when the alleged loss overlaps contract damages; the court therefore denied summary judgment on the GBL claims.

Martinez v. Agway Energy Services, LLC · filed 2022-02-02

Plaintiff's allegation of injury in the "form of an overpayment or 'price premium,' whereby [he] pays more than she would have but for the ... deceptive practice," is sufficient to establish he suffered injury under the GBL. ... Accordingly, Defendant's motion for summary judgment on Plaintiff's GBL §§ 349 and 349-d claims is denied.

Section 349(d) provides a complete defense when the challenged deceptive act or practice is subject to and complies with specified federal rules, regulations, or statutes.

Wedra v. Cree, Inc. · filed 2020-03-20(d)

Section 349 has a safe harbor which makes it “a complete defense that the [deceptive] act or practice 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 United States.”

A § 349(a) claim cannot proceed when the allegedly deceptive practice was fully disclosed.

Chen v. Dunkin' Brands, Inc. · filed 2020-03-31(a)

Because "there can be no section 349(a) claim when the allegedly deceptive practice was fully disclosed," Broder v. MBNA Corp., 722 N.Y.S.2d 524, 526 (1st Dep't 2001), the district court properly concluded that these advertisements were not actionable under either GBL provision as a matter of law.

To state a claim under § 349, a plaintiff must allege consumer-oriented conduct that was materially misleading and caused actual injury.

Mancuso v. RFA Brands, LLC d/b/a myCharge · filed 2020-04-13§ 349

In order to state a claim under either New York GBL §349 (which prohibits deceptive business practices) or §350 (which prohibits false advertising), plaintiff must allege that the defendant engaged in: (1) consumer-oriented conduct; (2) that was materially misleading; and that (3) plaintiff suffered actual injury as a result of the allegedly deceptive conduct.

A GBL § 349 plaintiff must allege a monetary injury independent of the loss caused by the alleged breach of contract.

Lanzillotta v. GEICO Employees Insurance Company · filed 2020-09-30(a)

A monetary loss under GBL § 349 “must be independent of the loss caused by the alleged breach of contract.”

Under N.Y. Gen. Bus. Law § 349, a plaintiff must show injury resulting from the defendant’s deceptive act or practice, which requires at least exposure to the alleged deception even though reliance is not required.

Fero v. Excellus Health Plan, Inc. · filed 2020-11-23§ 349

In other words, while a plaintiff pursuing a GBL § 349 claim need not have relied on (or even necessarily have believed) the allegedly deceptive conduct, he or she must have at least been exposed to it.

Under § 349, a deceptive-label claim may proceed at the pleading stage when a prominent front label could mislead a significant portion of reasonable consumers; an accurate fine-print ingredient list does not defeat it as a matter of law.

Bell v. Albertson Companies, Inc. · filed 2020-12-07

We therefore join our colleagues in at least three other circuits in holding that an accurate fine-print list of ingredients does not foreclose as a matter of law a claim that an ambiguous front label deceives reasonable consumers.

The court held that the alleged pandemic-related shift from on-campus to remote instruction was not deceptive under § 349.

Ford v. Rensselaer Polytechnic Institute · filed 2020-12-16

Even assuming that plaintiffs' formulation of the law is correct and there is no specific intent requirement, plaintiffs have nevertheless failed to adequately allege that RPI committed a deceptive act. No reasonable consumer would expect a university to remain open for in-class instruction in the face of a pandemic and a state-mandated shutdown, regardless of whether the school advertised on-campus learning as a strength.

On a motion to dismiss, a plaintiff plausibly states a § 349 claim when product labeling could lead a reasonable consumer to believe that all ingredients are natural, including added vitamins and minerals.

Grossman v. Simply Nourish Pet Food Company LLC · filed 2021-01-27(a)

Viewing the complaint in context and in the light most favorable to the plaintiff, a reasonable consumer could plausibly construe the Products’ labeling to suggest that the “added vitamins and minerals,” like the rest of the “natural ingredients,” are also “natural.”

The court held that the § 349(d) safe harbor could not support dismissal at the pleading stage because whether citric acid functioned as a preservative was ambiguous.

Mason v. Reed's Inc. · filed 2021-01-28§ 349(d)

Accordingly, it is at least ambiguous whether citric acid can be considered a preservative in the defendant’s products. Therefore, it cannot be concluded on a motion to dismiss that the defendant complied with the safe harbor provisions.

The court held that the pleaded materially deceptive debt-collection statements and resulting emotional distress plausibly stated a private § 349 claim, and it denied dismissal.

Krezic v. Advanced Endodontics of Buffalo, PC · filed 2021-02-19§ 349(h)

Because the Amended Complaint plausibly alleges that Brian Davidson made materially deceptive statements to Plaintiff that caused him to experience emotional distress, the court denies Moving Defendants’ motion to dismiss Plaintiff s § 349 claim.

The court held that § 349(h) permits class-wide statutory-damages recovery in a federal class action, but each class member must prove causation by showing that he or she paid a premium.

McMorrow v. Mondelez International, Inc. · filed 2021-03-08(h)

As to MDLZ’s first argument, MDLZ is correct that sections 349 and 350 of the GBL include injury and causation as elements. ... It is well settled that statutory damages under the relevant sections of the GBL are available as a class-wide remedy in class actions brought in federal courts under Federal Rules of Civil Procedure, irrespective of New York legislature’s limitation of class actions to causes of actions brought under statutes with specific authorization of class recovery.

The court held that disclosed mortgage inspection charges, challenged only as unreasonable or improper under the mortgage, did not support a § 349 claim.

Silvester v. Selene Finance, LP · filed 2021-03-08(a) (h)

Accordingly, as the charges were disclosed by the Mortgage and Plaintiffs are merely complaining that the charges are improper under the Mortgage, the fifth and sixth claims for relief are dismissed.

The court held that the § 349 claim could proceed past the pleading stage.

Sparago v. Beaver Mountain Log Homes, Inc. · filed 2021-03-15

To state a claim under GBL § 349, “a plaintiff 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.” ... The Court finds that Plaintiff has plausibly alleged a violation of GBL § 349. ... The pleadings set forth are sufficient at this stage for the GBL § 349 claim to proceed and therefore, Defendant’s Motion To Dismiss that claim is denied.

The court held that plaintiff plausibly alleged facts giving rise to liability under § 349 based on defendant’s allegedly confusing corporate name and resulting harm.

Shakuff LLC v. Shakuff Custom Glass Lighting Inc · filed 2025-03-07(a)

Thus, this Court finds that plaintiff has plausibly alleged facts giving rise to liability under Section 349.

Section 349 requires a cognizable injury sufficiently direct from the alleged deception; indirect purchasers’ reimbursement of inflated drug prices after alleged deception of regulators and courts is too remote.

In re Wellbutrin XL Antitrust Litigation · filed 2009-07-30(h)

In this case the plaintiffs are bringing their claims based on economic injuries to themselves. The plaintiffs claim that the defendants originally deceived the FDA and the federal courts by filing sham litigation and a sham citizen petition. That is the only allegation of deceit in this case. As a result of that alleged deceit, prices of Wellbutrin XL were maintained at supracompetitive levels. The defendants’ competitors, and then direct purchasers, were the first entities to feel the effect of that deceit. Finally, the plaintiffs were impacted when they reimbursed those individuals for their purchases. The indirect purchaser plaintiffs’ are too remote from the allegedly deceptive acts to state a claim for relief under New York law.

An injury to an advocacy organization is not cognizable under § 349 when it is derivative of harm to consumers, including lost support and expenses incurred to counter deceptive advertising.

Voters For Animal Rights v. D'Artagnan, Inc. · filed 2021-03-25§ 349(h)

Plaintiff’s asserted injuries are derivative of injuries to consumers, not direct injuries, and therefore do not support a claim under either section 349 or 350 of the GBL.

A business competitor bringing a § 349(h) claim based on deceptive communications made directly to consumers need not make any additional showing of harm to public safety.

Evergreen East Cooperative v. Bottomley Evergreens & Farms, Inc. · filed 2021-03-26(h)

Where the allegedly deceptive communication is made directly to consumers, it is self-explanatory that the conduct is “consumer-oriented,” and thus no further showing on this element is required. ... To the extent that some district courts have suggested that § 349 requires a separate showing of harm to public safety, that requirement is plainly inconsistent with subsequent pronouncements of the New York Court of Appeals.

The court held that an allegation that an overdraft disclosure agreement is ambiguous or misleading can plausibly state a § 349 claim, without proof of common-law fraud or an intent to mislead.

Wellington v. Empower Federal Credit Union · filed 2021-04-13(a)

Under prevailing Second Circuit case law, allegations that a disclosure agreement’s terms were ambiguous or misleading are sufficient to plausibly allege a claim for relief under GBL § 349.

The court held that the § 349 claim failed because the alleged misconduct concerned a private contract dispute and was not consumer-oriented.

Mohawk Gaming Enterprises, LLC v. Affiliated FM Insurance Co. · filed 2021-04-15(a)

However, the facts alleged establish that this litigation involves a dispute-over a private insurance contract between two sophisticated parties who reached an arms’ length agreement. In short, there is no plausible allegation-that Affiliated FM’s alleged conduct involved “injury or potential injury to the-public.” ... Accordingly, this claim will also be dismissed.

The court held that conduct arising from a private two-party contract, without an effect on consumers at large, is not consumer-oriented and is not actionable under § 349(a).

BRT Management LLC v. Malden Storage LLC · filed 2021-09-10(a)

Even if BRT’s conduct during the New Rochelle project constituted a deceptive act or practice under § 349, it was not consumer-oriented. It related to a private contract between two parties and had no effect on consumers at large.

A “grain free” label is not deceptive under these allegations merely because testing found gluten, because gluten is not grain and undisclosed trace cross-contamination would not materially affect the purchasers’ stated buying decision.

Bush v. WellPet, LLC · filed 2021-04-14

As gluten is a protein, its presence in the products does nothing to detract from the benefits plaintiffs sought to obtain from grain free pet food. The claims accordingly fail.

A § 349 claim need only satisfy Rule 8(a)’s notice-pleading standard, not Rule 9(b)’s heightened fraud standard.

GOODMAN v. INTERVET, INC. · filed 2023-03-06§ 349

At the outset, the Court notes that Rule 9(b) does not apply to Plaintiffs’ NY GBL ... claims ... Plaintiffs’ NY GBL ... claims satisfy the more liberal requirement of Rule 8(a).

The court stated the elements of a New York General Business Law § 349 false-advertising claim and applied the § 349(h) damages cap in assessing jurisdiction.

Delice v. Rhymes N Dimes Brands · filed 2021-04-19(h)

To state a claim of false advertising, otherwise known as a claim for deceptive practices, under New York General Business Law § 349, a plaintiff must allege facts suggesting 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[.]” ... Damages for false advertising are limited to a maximum of $1,000, see N.Y. Gen. Bus. Law § 349(h)

The court held that a § 349 claim requires a consumer-oriented practice that is materially misleading and causes injury, measured by an objective reasonable-consumer standard, without requiring reliance or intent to mislead.

de Lacour v. Colgate-Palmolive Co. · filed 2021-04-23§ 349

GBL Section 349 declares unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. L. § 349. In order to state a claim, a plaintiff must allege that the act or practice was consumer-oriented; the act or practice was misleading in a material respect; and the plaintiff was injured as a result. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009). Materiality is an objective inquiry: a deceptive act is one that is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000). The same analysis applies to false advertising claims brought pursuant to GBL Section 350. Id. at 522. Sections 349 and 350 require neither proof of reliance, nor proof that the defendants intended to mislead consumers.

The court held that Plaintiffs adequately pleaded their New York General Business Law § 349 claim.

MANETTA v. NAVIENT CORPORATION · filed 2021-07-08(a)

Section 349 of New York General Business Law prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. L. § 349(a). “To state a claim for deceptive practices under section 349, a plaintiff must show: (1) that the act, practice, or advertisement was consumer-oriented; (2) that the act, practice, or advertisement was misleading in a material respect; and (3) that the plaintiff was injured as a result of the deceptive act, practice, or advertisement.”

The court held that Pace's pandemic-driven move to remote instruction and postponement of program offerings did not constitute deceptive or materially misleading conduct under GBL § 349.

Goldberg v. Pace University · filed 2021-04-21

And even drawing all reasonable inferences in Goldberg’s favor, there is nothing about the facts pled as to Pace’s response to the public-health crisis and executive orders prohibiting on-campus instruction,i.e., the transition to remote learning,that makes them deceptive or misleading within the meaning of N.Y. GBL §349.

The court held that the complaint failed to plausibly allege the injury-causation element of a § 349 claim.

Kim-Chee LLC v. Yup Chagi Inc. · filed 2021-04-23§ 349(a)

However, the Complaint does not plausibly allege that Plaintiffs suffered an injury as a result of Defendants’ materially misleading marketing and sale of their insurance policy, as required to state a claim under § 349.

The court held that a § 349 plaintiff must show actual injury through a price premium attributable to the deceptive statement, and that the evidence here could not establish such a premium.

Eidelman v. The Sun Products Corporation · filed 2021-06-01(a)

Because the record does not reflect evidence of a less expensive comparator to the Product, the Court concludes that no reasonable jury could find Plaintiff paid a price premium.

The court held that § 349 liability requires facts tying the defendant itself to deceptive marketing or sale and to the resulting injury; shared branding and forms used by subsidiary insurers were insufficient for HIG.

Buffalo Xerographix Inc. v. Sentinel Insurance Company, Limited · filed 2021-05-19(a)

Similarly, Subsidiary Defendants’ use of marketing materials and contract forms featuring “The Hartford” logo cannot render HIG liable for allegedly deceptive marketing, absent other nonconclusory allegations of HIG’s participation. Subsidiary Defendants, not HIG, entered into insurance contracts with Plaintiffs and are responsible for the representations within those contracts. Moreover, Subsidiary Defendants, not HIG, ultimately denied Plaintiffs’ claims under the insurance contracts. Without facts alleging deceptive behavior in the marketing or sale of insurance to Plaintiffs by H/G, Plaintiffs cannot establish that HIG’s actions deprived Plaintiffs of any expected benefits of their insurance policies.

Section 349 requires consumer-oriented conduct with a broad impact on consumers at large; tangential consumer effects are insufficient when the challenged transactions are between sophisticated businesses.

DO NOT FILE IN THIS CASE - TRANSFERRED TO CAMDEN NEW CIVIL ACTION NO. 1:19-cv-21607 · filed 2021-05-28(a)

That the scheme may have tangentially affected consumers does not, in and of itself, make Plaintiffs’ claim “consumer-oriented.” Accordingly, Plaintiffs’ claim under the NYGBL is dismissed without prejudice.

At the pleading stage, prescription-only availability did not establish as a matter of law that the challenged statements were not consumer oriented under § 349.

PALMIERI v. INTERVET INC. · filed 2021-06-01

Based on the apparent disagreement among federal courts in New York, the original application of the implied intermediary doctrine, and Defendant’s failure to provide New York state court decisions consistent with Amos and Scism, the Court does not conclude at this stage that the statements in question were not consumer oriented as a matter of law.

The court held that a § 349 claimant must plead a specific injury caused by the deceptive act, and dismissed the claim for lack of standing because defendants did not identify any lost or misled customer.

Olinsky & Associates, PLLC v. Nutting · filed 2021-07-02(a)

Having determined that Defendants have failed to sufficiently claim an injury, their GBL Section 349 claim must be dismissed for a lack of standing.

Section 349 does not reach an insurer's private coverage dispute with an insured unless the alleged conduct has a broad consumer impact.

Fishberg v. State Farm Fire and Casualty Company · filed 2021-07-20(a)

There is nothing broadly consumer-oriented about such a dispute—apart from the immaterial fact that insurance companies and insureds may frequently engage in coverage disputes. That fact alone, however, does not transform a purely private issue into a consumer-oriented one. Nor does Plaintiff’s wholly conclusory assertion that Defendant’s conduct exhibited a “consumer-oriented and routine practice” so transform it.

The court held that allegations of a consumer-oriented, materially misleading promise of automatic seven-month account review, followed by failure to conduct that review for two years, adequately stated a § 349 claim at the motion-to-dismiss stage.

CAMPAGNA v. TD BANK, N.A. · filed 2021-08-18§ 349(a)

To state a claim under Section 349, “a plaintiff ‘must prove three elements: 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.’” ... Assuming, as the Court must, the veracity of Plaintiffs’ allegations, Defendant engaged in wrongful conduct when it promised Plaintiffs that their accounts would be automatically reviewed for graduation after seven months, only to not actually do so for two years. ... Therefore, Plaintiffs have adequately stated claims under the state statutes.

The court held that § 349 requires consumer-oriented conduct causing harm to the public at large, and that Yoomi's recalled, unsalable sanitizer did not satisfy that prerequisite.

Yoomi Babytech, Inc. v. Anvyl, Inc. · filed 2021-09-22§ 349(h)

Yoomi has therefore not alleged the prerequisite harm to the public at large contemplated by the statute.

The court held that a trademark-infringement claim is not cognizable under § 349 without specific and substantial injury to the public interest beyond ordinary infringement, and the alleged confusion here was insufficient.

MidCap Business Credit, LLC v. Midcap Financial Trust · filed 2022-03-08

In short, Plaintiff’s evidence of “actual confusion” is insufficient to support a finding that Defendants have engaged in anything more than (if any) garden variety trademark infringement. Accordingly, the motion is granted as to Plaintiff’s claims under Section 349.

Section 349 requires a trademark claimant to allege public injury beyond the ordinary harms of infringement, and consumer confusion and loss of genuine-product protections alone did not suffice.

Cardinal Motors, Inc. v. H&H Sports Protection USA Inc. · filed 2022-09-08

Plaintiff must also allege Defendant’s infringement has “significant ramifications for the public at large,” not just for the Plaintiff itself. ... “Where the only alleged harm is that which is generally associated with violations of intellectual property law, courts in this district have found that plaintiffs cannot state a claim under [N.Y. GBL] § 349.”

Section 349(a) does not support a trademark-based claim without adequately alleged injury to the public interest beyond the alleged copying.

APP Group (Canada) Inc. v. Rudsak USA Inc. · filed 2022-08-10(a)

Its claim that Rudsak violated N.Y. Gen. Bus. Law § 349(a) cannot succeed because Mackage has not alleged adequately that Rudsak injured the public interest in allegedly copying Mackage’s coat designs.

Section 349 requires plausible allegations that the challenged conduct affected consumers broadly and was materially misleading; conclusory allegations about unauthorized EFTs did not satisfy those requirements here.

Prignoli v. Bruczynski · filed 2021-09-28(a)

Plaintiff fails to state a GBL § 349 claim because he fails to plausibly allege that Defendants’ conduct affected the public at large and was misleading in a material way.

The court held that a claim under § 349 does not require proof that the consumer relied on the defendant’s conduct or that the defendant intended to mislead consumers.

Duffy III v. Illinois Tool Works, Inc. · filed 2021-09-30

“Sections 349 and 350 require neither proof of reliance, nor proof that the defendants intended to mislead consumers.”

The court held that a § 349 claim may proceed when the allegedly deceptive online transaction and resulting economic loss occurred in New York, even though the vehicle dealership was in Tennessee.

Callen v. AG · filed 2021-10-04(a)

To maintain a cause of action under this statute, “a plaintiff must allege deceptive acts or practices which took place in New York State.” ... His economic loss occurred at the time he completed the transaction online, not when he picked up the vehicle or had it delivered from the dealership in Tennessee. Therefore, the Court denies the motion to dismiss with respect to Plaintiff Acunto’s NYGBL § 349 claim.

N.Y. Gen. Bus. Law § 349(a) prohibits deceptive business practices when the consumer deception occurs in New York, and determining that territorial connection may require a fact-intensive inquiry.

CALLERY v. HOP ENERGY, LLC · filed 2023-03-22(a)

“[T]o qualify as a prohibited act under the statute, the deception of a consumer must occur in New York.”

The court held that § 349 liability requires a representation or omission likely to mislead a reasonable consumer acting reasonably under the circumstances, and dismissed the claim because that standard was not met.

McAuliffe v. Vail Corporation, The · filed 2021-10-15

representations or omissions . . . likely to mislead a reasonable consumer acting reasonably under the circumstances.

Section 349 requires a plausible showing that consumer-oriented conduct is materially misleading to a reasonable consumer in context and causes injury; the court held the oatmeal packaging did not satisfy that standard.

Warren v. Whole Foods Market Group, Inc. · filed 2021-12-03

Therefore, plaintiffs must plead that Whole Foods’ packaging is likely misleading on its own, in context, to a reasonable consumer.

The court held that allegations based only on references to “protection” and “warranty” did not establish that a reasonable consumer would be deceived into believing the plan covered the product’s full purchase price.

Shuman v. SquareTrade Inc. · filed 2021-11-03

Here, the allegations are insufficient, as a matter of law, to establish that a reasonable consumer would have been deceived by the references to “protection” and “warranty” into thinking SquareTrade’s protection plan covered the full purchase price of covered products.

Section 349 prohibits deceptive acts likely to mislead a reasonable consumer acting reasonably under the circumstances.

Stevens v. Walgreen, Co. · filed 2022-08-24(a)

“‘Deceptive acts’ are acts that are ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’”

Section 349 requires conduct that materially misleads a reasonable consumer and causes injury; an “up to” statement communicates an upper bound, so alleging only that the product failed to reach that bound does not state a § 349 claim.

Sklyar v. Energizer Brands, LLC · filed 2022-09-28(a)

Fink teaches us to read that phrase, from the perspective of the reasonable consumer, to expect that an individual battery could last less than the advertised upper bound. ... Accordingly, dismissal is warranted.

Section 349 requires consumer-oriented conduct that is materially misleading and causes injury, and the court held that a reasonable consumer would not understand “100% Arabica Coffee” to promise coffee without additives.

Brownell v. Starbucks Coffee Company · filed 2023-07-12

The Court therefore finds that a reasonable consumer acting under reasonable circumstances would understand the labeling of "100% Arabica Coffee" on the Product to mean that the ground coffee beans are exclusively from the arabica plant, and the Product does not contain coffee beans from any other type of coffee bean producing plant. Thus, the Court finds that a reasonable consumer would not assume "100% Arabica Coffee" means coffee without additives, vitamins, or minerals.

Section 349 applies an objective reasonable-consumer standard: deceptive conduct must be consumer-oriented, materially misleading, and cause injury.

Van Orden v. Hikari Sales U.S.A., Inc. · filed 2023-08-18§ 349 (no subsection)

"New York courts apply an objective definition of deceptive acts and practices, concerned only with 'those likely to mislead a reasonable consumer acting reasonably under the circumstances.'"

The court held that the plaintiff failed to plausibly allege a materially misleading practice under N.Y. Gen. Bus. Law § 349 because the “Clean at Sephora” labeling did not claim that the products were free of all synthetic or harmful ingredients.

Finster v. Sephora USA Inc. · filed 2024-03-15

Finster’s allegations fall short of the objective standard imposed on GBL § 349 and 350 claims. Plaintiff’s complaint leaves the Court guessing as to how a reasonable consumer could mistake the “Clean at Sephora” labeling and/or marketing to reasonably believe that the cosmetics contain no synthetic or harmful ingredients whatsoever. Plaintiff cites to advertising from defendant which states: “consumers who see the Clean seal can be assured that the product is formulated without specific ingredients that are known or suspected to be potentially harmful to human health and/or the environment.” Compl. ¶ 14. Yet, nowhere on the label or in the marketing materials plaintiff cites does defendant make any claim that the products are free of all synthetic or harmful ingredients.

The court held that the complaint did not state a § 349 claim because it failed to plead a materially misleading act or omission.

Yodice v. Touro College and University System · filed 2021-11-04(a)

The complaint fails to plead a materially misleading act or omission by TCDM. No reasonable consumer would be misled into believing that, in the event of a global pandemic and under government shutdown orders, TCDM would remain open to deliver in-person instruction to students.

The court held that allegations of multiple sources of pre-sale knowledge and a concealed vehicle defect were sufficient for the New York consumer-protection claim to proceed past dismissal.

GEORGE v. JAGUAR LAND ROVER NORTH AMERICA LLC · filed 2021-11-08

Ultimately, the Courts finds, in line with its prior decisions in defective product cases based on a fraudulent omission theory, that when viewing Plaintiffs’ allegations holistically, they have pleaded enough to give rise to a plausible inference that Defendant knew about the InControl Defect plaguing its vehicles.

The court held that a GBL § 349 claim requires proof that the challenged act or practice was consumer-oriented, materially misleading, and caused the plaintiff's injury, and affirmed summary judgment where the plaintiff identified no allegedly misleading materials.

Bailey v. New York Law School · filed 2021-11-24(a)

To establish a prima facie case under that provision, a plaintiff must demonstrate that “(1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.”

The court held that Conduent's conduct satisfied all three elements of a § 349(a) claim and granted summary judgment on liability.

Chery v. Conduent Education Services, LLC · filed 2022-01-20(a)

To establish a violation of Section 349, the plaintiff must prove the defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result.

Section 349 requires consumer-oriented conduct that is materially misleading and causes injury; the court held students were not deceived when COVID-19 and a state prohibition forced LIU to stop in-person instruction mid-semester.

Moore v. Long Island University · filed 2022-01-24(a)

To state a claim under either section, a plaintiff must allege facts showing that a plausible inference can be drawn of “(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.”

The court held that a § 349 plaintiff must allege an injury caused by the deception that is independent of the loss caused by an alleged breach of contract.

Manrique v. State Farm Mutual Automobile Insurance Company · filed 2021-12-02(a)

Having failed to allege a unique injury caused by Defendant’s allegedly deceptive representations, Plaintiff cannot state a claim under New York General Business Law § 349, and Defendant’s Motion To Dismiss with respect to Count III is granted.

Section 349 requires a plaintiff to allege and prove causation, including that the challenged deceptive conduct could have caused the claimed injury.

Doe v. Uber Technologies, Inc. · filed 2021-12-20

New York General Business Law § 349 requires a privilege plaintiff to allege and prove causation among other elements.

A § 349 claim requires consumer-oriented conduct with a broader impact on consumers at large, and conduct directed to businesses rather than individual consumers falls outside the statute's scope.

Abdallah v. LexisNexis Risk Solutions FL Inc. · filed 2021-12-30(a)

To state a claim under § 349, a plaintiff must allege: (1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.

A conclusory information-and-belief allegation that an insurer's practice affected other consumers does not satisfy § 349's consumer-oriented conduct element in an individual coverage dispute.

Northway Medical Center Condo v. The Hartford Financial Services Group, Inc. · filed 2022-01-10(a)

While Northway does allege, upon information and belief, that the alleged practice has been used with other consumers, this is insufficient under Section 349.

The court held that a § 349 claim survives dismissal when the plaintiff plausibly alleges consumer-oriented conduct that materially misled consumers and caused injury, including paying a premium for a product based on inaccurate representations.

Scholder v. Sioux Honey Association, Cooperative · filed 2022-01-13

To state a claim under either section, “a plaintiff 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.”

Section 349 claims require a causal connection between the alleged deceptive act and the plaintiff's injury.

Zachmann v. The Coleman Company Inc. · filed 2022-01-18(a)

Ultimately, the Court concludes that, even if the statutes reached Zachmann’s out-of-state purchase, both plaintiffs’ GBL claims must be dismissed because plaintiffs do not sufficiently allege a causal connection between their purchase of defendant’s coolers and defendant’s labelling.

The court held that the § 349 claim failed because NYU could not have known its pre-pandemic representations would become impossible to fulfill.

De Leon v. New York University · filed 2022-01-20(a)

To state a claim for a violation of either Section, “a plaintiff 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.”

Section 349 requires injury caused by the deceptive conduct, and no injury exists when the insurer was entitled to deny coverage despite lacking a virus exclusion.

Kim-Chee LLC v. Philadelphia Indemnity Insurance Company · filed 2022-01-28(a)

But even taking that as true, Kim-Chee cannot satisfy the third Section 349 element: injury as a result of Philadelphia’s conduct. Philadelphia was entitled to deny Kim-Chee coverage even though its policy lacked the virus exclusion.

Under N.Y. Gen. Bus. Law § 349, an omission may constitute actionable deception when the consumer could not reasonably obtain the omitted information, even if the business did not possess it exclusively.

Kyszenia v. Ricoh USA, Inc. · filed 2022-02-03

In fact, a plaintiff claiming an omission constitutes actionable deception must show either that the business alone possessed the relevant information, or that a consumer could not reasonably obtain the information.

The court held that a § 349 failure-to-disclose claim survives dismissal when the plaintiff plausibly alleges that the business knew material information relevant to consumers and failed to provide it.

Monopoli v. Mercedes-Benz USA, LLC · filed 2022-02-10

Mercedes also argues that Monopoli failed to plausibly allege that it knew of the defect, which is required for a failure to disclose claim under §§ 349 and 350. ... The Court has already found that Plaintiffs, including Monopoli, plausibly alleged that Mercedes had knowledge of the defect. Monopoli’s claims under New York General Business Law §§ 349 and 350, therefore, survive dismissal on a failure to disclose theory.

A plaintiff need not allege an injury independent of contract damages to state a § 349 claim when the defendant's deceptive practice causes monetary loss and denies the contracted-for services.

Milligan v. GEICO General Insurance Co. · filed 2022-02-14(a)

However, as we made clear most recently in Nick’s Garage, Inc. v. Progressive Casualty Insurance Co., the Spagnola and Sokoloff cases “do not establish . . . a requirement” that a plaintiff “allege an injury [under § 349] independent of their contract damages.” 875 F.3d at 125 (emphasis added). Instead, those cases stand for the proposition that no § 349 claim exists “where the plaintiffs allege[] damages in the amount of the purchase price of their contracts, but fail[] to allege that defendants ha[ve] denied them the services for which they contracted.”

Section 349 does not make a food label deceptive merely because it highlights a predominant ingredient while the product also contains other ingredients, absent a plausible allegation that reasonable consumers would be materially misled.

Beers v. Mars Wrigley Confectionery US, LLC · filed 2022-02-17

The label simply says, “with milk chocolate” indicating (accurately) that that ingredient is prominently featured in the Product. It is nothing more than a conclusory leap to allege that a reasonable consumer reads those statements to implicitly mean that the product necessarily contains no vegetable oils.

Section 349(a) requires consumer-directed deceptive conduct that is materially misleading and causes injury; the court dismissed the claim because Dupere identified no false advertisement or misleading consumer-facing statement about TVT.

Dupere v. Ethicon, Inc. · filed 2022-02-22(a)

Dupere fails to state a claim under §§ 349(a) or 350 of the New York General Business Law for the simple reason that she has failed to identify even one false advertisement or misieading consumer~facing statement regarding TVT.

Section 349 requires consumer-oriented, materially misleading conduct that causes injury; the court held the alleged deceptive debt-collection practices plausibly stated a claim against K&P and LVNV.

Ruffin v. Kirschenbaum & Phillips, P.C. · filed 2022-03-09(a)

GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law § 349(a). To state a claim under this section, “a plaintiff 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.”

Section 349 requires a specific deceptive statement, representation, or omission; repackaging alleged bad-faith conduct as a statutory claim did not state a claim.

Cardoso v. Wells Fargo Bank, N.A. · filed 2022-09-20

But in making this allegation, Plaintiffs have failed to identify any statement, representation, or omission by Defendant that was allegedly deceptive. ... This is insufficient to save Plaintiffs’ § 349 claim from dismissal.

The court held that a § 349 claim fails when the plaintiff does not adequately plead that the challenged representation was materially misleading to a reasonable consumer.

Brown v. Kellogg Sales Company · filed 2022-03-31(a)

This Court finds as a matter of law that Brown has failed to adequately plead a materially misleading representation under GBL sections 349 and 350.

For a § 349 claim based on misrepresentations or omissions about a vehicle defect existing at purchase, the injury accrues at purchase and starts the three-year limitations period.

Himan v. Thor Industries, Inc. · filed 2022-03-08

When the claims are based on misrepresentations or omissions about a defect in place at the time a vehicle is purchased and not about a benefit the consumer expects to have after purchasing the vehicle, the “injury” is held to have occurred at the time of purchase.

The court held that an omission-based § 349 claim does not require a duty to disclose.

COHEN v. SUBARU CORPORATION · filed 2022-03-10

Because claims under § 349 do not require a duty to disclose, the Court will deny Denso’s motion on this issue as to Plaintiffs Plante and Karrat.

The court held that the plaintiff plausibly alleged deceptive packaging under GBL § 349 by alleging that the product's lemon-zest-oil representation falsely implied that lemon zest oil was the primary source of lemon flavor, even though it appeared only in a de minimis amount.

Bardsley v. Nonni's Foods LLC · filed 2022-03-16(h)

Accordingly, the Court concludes that Plaintiff has sufficiently alleged that the Product’s packaging is misleading for purposes of her claims under GBL §§ 349 and 350.

The court held that a § 349 claim requires a specific material misstatement or omission that could deceive a reasonable consumer, plus resulting injury.

Gordon v. Target Corporation · filed 2022-03-18

However, in making these allegations, Plaintiff has failed to actually identify a material misstatement or omission on the Product’s label that would deceive a reasonable consumer, which is fatal to her claim. ... Accordingly, Plaintiff’s claims based on alleged violations of GBL §§ 349 and 350 are dismissed.

A § 349 claim requires consumer-oriented conduct, material misleadingness, and injury; the court held the cooler labels were not materially misleading to a reasonable consumer and dismissed the claim.

Turk v. Rubbermaid Incorporated · filed 2022-03-21§ 349

When considering the full context of both Products’ labels, the Court finds that no reasonable consumer could be misled.

The court held that a § 349 claim requires a consumer-directed deceptive act that materially misleads and causes injury, and dismissed the claim because the complaint did not plausibly allege that charcoal made the toothpaste unable to provide its advertised benefit.

Housey v. Procter & Gamble Company · filed 2022-03-24(a)

To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.

The court held that a plaintiff cannot sustain a § 349 claim based only on a single allegedly misleading repossession without allegations that the conduct affected similarly situated consumers or the public.

Rabadi v. City of Yonkers · filed 2022-03-25(a)

“There are no allegations as to how [this single incident] affected a wide range of customers—whether others similarly situated or the public at large.”

At the pleading stage, concealing a no-fee ACH transfer option and presenting fee-based options sufficiently alleged materially misleading conduct and resulting injury under § 349.

Bruin v. Bank Of America, N.A. · filed 2022-03-31(a)

Defendants argue that their conduct cannot be deceptive because they disclosed their fees and transfer options. This argument fails. First, it is not necessarily enough for Defendants to have disclosed the fees. ... Second, Plaintiffs are not claiming that Defendant did not disclose their ACH fee schedule. Rather, Plaintiffs claim Defendant misled accountholders by omitting mention of “pull” outbound ACH transfers and by deceptively presenting the transfer options available at Bank of America. ... Thus, Plaintiffs have adequately alleged a materially misleading practice. ... Therefore, Plaintiffs have sufficiently alleged an injury flowing from the misleading practice. The motion to dismiss as to the NYDPA claim is denied.

The court held that a bank’s alleged practice of abruptly terminating customers’ authorized automatic payments without notice to manufacture defaults plausibly violates § 349.

42-50 21st Street Realty LLC v. First Central Savings Bank · filed 2022-04-04(a)

These allegations plausibly describe “consumer-oriented conduct” that is “materially misleading” and injurious.

The court held that a § 349 claim could not proceed where the plaintiff could not create a triable issue that the same contractual representations about rates were materially misleading to a reasonable consumer.

Martinez v. Agway Energy Services, LLC · filed 2022-04-12(a)

It would be logically inconsistent for the Court to conclude that Plaintiff failed to create a triable issue of fact as to whether the variable rate was competitive or market based, but then allow Plaintiff to proceed with GBL claims that require him to establish that those very same terms were materially misleading to a reasonable consumer.

The court held that a plaintiff pursuing GBL § 349(h) damages must prove actual damages at trial, even where statutory damages are expected to be greater.

Montera v. Premier Nutrition Corporation · filed 2022-05-09(h)

As a threshold matter, Plaintiff is required to prove actual damages at trial. The relevant statutes allow a plaintiff to recover the greater of actual damages or statutory damages. See N.Y. Gen. Bus. Law § 349(h) (“[A]ny person who has been injured by reason of any violation of this section may bring . . . an action to recover his actual damages or fifty dollars, whichever is greater[.]”

Section 349 requires a plaintiff to plead consumer-oriented conduct, material misleadingness, injury, and a causal connection between the deceptive act and the injury.

Grossman v. GEICO Casualty Company · filed 2022-05-25(a)

“To successfully assert a claim under either section, a plaintiff 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.” ... “Thus, Plaintiffs cannot show that the allegedly misleading advertisement caused their injury, and, for that reason—at a minimum—they have not stated a plausible claim under GBL Sections 349 and 350.”

A § 349 claim requires a plaintiff to have actually viewed the misleading statement before the alleged injury, and the claim fails when the complaint does not identify that causal connection.

Troy v American Bar Association · filed 2024-04-30

Such a deficiency is “fatal to the [N.Y. G.B.L. § 349] claim” and must be dismissed.

The court held that a GBL § 349 claim requires the alleged deception or some part of the underlying transaction to have occurred in New York, and dismissed the claim because Lens.com alleged neither.

Alcon Vision, LLC. v. Lens.com, Inc. · filed 2022-05-25

Lens.com fails to meet either test. ... There are simply no allegations that consumers were deceived in New York, or that any part of these transactions occurred in New York. ... For both reasons, the GBL §§ 349 and 350 claims are dismissed.

Section 349 requires consumer-oriented conduct that is materially misleading and causes injury, and the court held that the claim failed because it lacked a sufficient nexus to New York.

Smith v. Zoll Medical Corporation · filed 2025-03-31

The NY GBL prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349. A plaintiff bringing a claim under this law “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.” ... The court finds Plaintiff Pacholczak has not pleaded a sufficient nexus to New York.

The court held that a plaintiff may establish actual injury under § 349 through a deception-based price premium, using a lower-priced comparable product even if the plaintiff did not purchase or could not have purchased that product; reliance is not required.

Eidelman v. Sun Products Corp. · filed 2022-06-06

The presence or absence of a price premium attributable to a defendant’s alleged deception is objective and does not depend on whether a plaintiff could have or would have, in fact, purchased a lower-priced, truthfully marketed alternative. To the contrary, the New York Court of Appeals has held that “reliance is not an element of a section 349 claim.”

Section 349 permits a consumer to plead statutory injury by alleging that misleading product labeling caused a price premium and that the consumer would not have bought the product or would have paid less without the misrepresentation.

Broussard v. Dole Packaged Foods LLC · filed 2024-04-08

At this stage, it is enough that Plaintiffs allege a plausible theory for the premium (i.e. the label’s allegedly misleading invocation of healthiness), and causally connect that misleading labeling to their purchase.

A § 349 plaintiff adequately pleads injury by alleging that she bought a product because of a misleading representation, would not have bought it without the representation, and paid more than she otherwise would have paid.

Calchi v TopCo Associates LLC · filed 2024-09-30

Calchi alleges that she bought a product, and would not have purchased the product without the misrepresentation. That’s enough to allege an injury. She also alleges that she paid more for the product than she otherwise would have paid.

The court held that the alleged emails were not deceptive under § 349 because Trustpilot had no contractual or statutory obligation to send them and plaintiffs had no basis to rely on receiving them.

Trustpilot Damages LLC v. Trustpilot Inc. · filed 2022-06-13(a)

Plaintiffs’ claim under § 349 fails for the same reason as its claim for violation of the covenant of good faith and fair dealing: we cannot conclude that Trustpilot’s sending emails calculated to be sorted to subscribers’ junk folders is deceptive if Trustpilot had no contractual or statutory obligation to send the emails, and plaintiffs had no basis to rely on receiving them.

At the motion-to-dismiss stage, a § 349 claim based on product representations survives when a reasonable consumer could plausibly find the representations materially misleading, because that issue is generally factual.

Anderson v. Unilever United States, Inc. · filed 2022-06-16

Here, the Court finds that the question of whether Defendant’s representations as to the Product are materially misleading or deceptive is a question of fact that cannot be resolved on a motion to dismiss.

The court held that a § 349 claim is subject to Rule 8(a)'s notice-pleading standard and requires allegations of consumer-oriented conduct that is materially misleading and caused injury.

Gibson v. Bartlett Dairy, Inc. · filed 2022-03-15

To successfully assert a claim under either N.Y. G.B.L. [§§] 349 or 350, a plaintiff 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.

Section 349 requires a consumer-oriented act that materially misleads the plaintiff and causes injury.

Cheng v. T.D. Bank, N.A. · filed 2022-06-28

A cause of action under § 349 has three elements: (i) “the challenged act or practice was consumer-oriented”; (ii) “it was misleading in a material way”; and (iii) “plaintiff suffered injury as a result of the deceptive act.”

Section 349 requires a plaintiff to allege consumer-oriented conduct that is materially misleading and caused injury.

Chung v. Igloo Products Corp. · filed 2022-07-08§ 349

To assert a claim under either section, “a plaintiff must allege: (1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.”

Section 349(a) bars deceptive business practices and requires a plaintiff to show consumer-oriented conduct, material misleadingness, and resulting injury.

Lin v. Canada Goose US, Inc. · filed 2022-11-14(a)

Section 349 of the New York General Business Law makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. GBL § 349(a). To state a claim under NY GBL § 349, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct, that is (2) materially misleading, and that (3) the plaintiff suffered injury as a result of the allegedly deceptive act or practice.”

GBL § 349(a) prohibits deceptive commercial practices and requires a consumer-oriented practice that is materially misleading and causes harm; the court also held the claim was not preempted by the National Bank Act.

BURNS v. TD BANK, N.A. · filed 2022-12-08(a)

To state a claim under GBL § 349, a plaintiff must allege (1) that the challenged act or practice was consumer-oriented; (2) that it was misleading in a material way; and (3) that the plaintiff was harmed as a result of the deceptive act. See Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014).

Section 349 lets an injured person sue over deceptive business practices and requires consumer-directed deception that materially misleads and causes injury.

Housey v. Proctor & Gamble Company · filed 2022-12-22(a)

Section 349 of the New York General Business Law, for instance, provides a cause of action for any person injured by “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349(a), (h). “‘Deceptive acts’ are acts that are ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’” Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 500 (2d Cir. 2020) (quoting Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013)). “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Id. (quoting Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)).

Section 349(a) prohibits deceptive business practices aimed at consumers and requires a claimant to plead material deception and resulting injury.

Nero v. Uphold HQ Inc. · filed 2023-02-22(a)

A plaintiff bringing a claim under this statute must allege “(1) that the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.”

Section 349 requires consumer-oriented conduct that materially misleads consumers and causes the plaintiff injury.

Clinger v. Edgewell Personal Care Brands, LLC · filed 2023-03-13§ 349

To assert a claim under either law, “a plaintiff 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.”

The court held that the alleged defeat-device conduct was consumer-oriented under § 349 because it was directed at the consuming public and potentially affected similarly situated consumers.

Counts v. General Motors, LLC · filed 2022-06-09

Further, Defendants’ alleged conduct (i.e., installing and concealing defeat devices) was directed to the consuming public at large and not to the individual consumers or dealerships, as demonstrated by Defendants’ repeated contention that they never communicated directly with any individual Plaintiffs, which Plaintiffs corroborate. ... For these reasons, summary judgment is not appropriate as to Counts XLII or XLIII.

Section 349 requires consumer-oriented, materially misleading conduct that causes injury, including a broader impact on consumers at large.

Lee v. Union Mutual Fire Insurance Company · filed 2022-08-16

The Court agrees with Defendant that summary judgment is appropriate as to Plaintiffs’ claim under section 349 because “there has been no evidence or testimony presented to prove” that Defendant’s conduct has a broader impact on consumers at large.

Section 349 requires consumer-oriented conduct, materially misleading conduct, and resulting injury; a private individual lawsuit is not consumer-oriented activity.

Remler v. Cona Elder Law, PLLC · filed 2022-09-29(a)

To state a claim under this provision, a plaintiff must allege that (i) that the defendant engaged in consumer-oriented conduct, (ii) the defendant's conduct was materially misleading, and (iii) the plaintiff was injured as a result of the defendant's conduct.

Section 349(a) prohibits deceptive business practices and requires consumer-oriented deceptive conduct that injures the plaintiff.

Gross v. Loancare LLC · filed 2022-09-29(a)

Section 349 of the New York General Business Law makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law. § 349(a). “To maintain a cause of action under § 349, a plaintiff must show: (1) that the defendant's conduct is ‘consumer-oriented’; (2) that the defendant is engaged in a ‘deceptive act or practice’; and (3) that the plaintiff was injured by this practice.”

Section 349 treats a business’s failure to disclose material information uniquely in its possession as a potentially deceptive practice.

SHAAYA v. JAGUAR LAND ROVER NORTH AMERICA LLC · filed 2022-06-29(a)

An omission can constitute a deceptive act or practice for the purposes of section 349, “where the business alone possesses material information that is relevant to the consumer and fails to provide this-information.”

Section 349 applies only to deceptive practices affecting the public, not to private contract disputes.

Jackling v. Brighthouse Life Insurance Company · filed 2022-07-10

that claim applies solely to matters affecting the public and not private contract disputes.

Section 349(a) requires a sufficient territorial connection to New York before a deceptive-practices claim may be invoked.

Jenkins v. Trustco Bank · filed 2022-08-16(a)

The court agrees with Trustco. Jenkins has not satisfied the territorial requirement to invoke NYGBL § 349.

Section 349 requires a materially misleading consumer-oriented representation and resulting injury; the plaintiff did not plausibly plead deception.

Perry v. Manna Pro Products, LLC · filed 2022-08-22N.Y. Gen. Bus. Law § 349

In short, it is Plaintiff’s burden to plausibly plead falsity or deception. ... Plaintiff has thus failed to plausibly allege a false or misleading representation, and the Court will dismiss each of her claims without reaching Defendant’s alternative arguments.

Section 349 requires actual, direct injury from deceptive conduct, so an injury dependent on harm to consumers is too indirect to support recovery.

PharmacyChecker.com LLC v. National Association of Boards of Pharmacy · filed 2022-09-20§ 349

Here, the Court finds that NABP has alleged only an indirect injury predicated on the alleged injury to consumers caused by PCC’s deceptive practices, and thus, NABP is not entitled to recover under either §§ 349 or 350.

Section 349 bars deceptive business practices and requires consumer-oriented conduct that materially misleads consumers and causes injury.

Lin v. Miracle Curtains, NY, Inc. · filed 2022-09-22§ 349(a)

N.Y. Gen. Bus. Law § 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). To succeed on such a claim, a plaintiff must show “that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.”

A trademark-based § 349 claim requires specific and substantial injury to the public interest beyond ordinary infringement.

LPD New York, LLC v. Adidas America, Inc. · filed 2022-09-24

These allegations are insufficient to state a counterclaim because Defendants have not alleged specific and substantial injury to the public interest over and above the ordinary trademark infringement.

Section 349 allows a claim to proceed when the plaintiff plausibly alleges deceptive practices and injury through unauthorized or inflated charges.

Shakespeare v. Live Well Financial, Inc. · filed 2022-09-30

While Defendants may ultimately prevail on this issue, at this stage of the litigation, Plaintiff has stated plausible claims under Section 349 to proceed to discovery. ... Plaintiff has adequately alleged deceptive practices and injury in the form of additional charges. Thus, such claims are not futile.

Section 349 requires consumer-oriented conduct that materially misleads consumers and causes actual injury.

Devey v. Big Lots, Inc. · filed 2022-10-12

In order to state a claim under either New York GBL §349 (which prohibits deceptive business practices) or §350 (which prohibits false advertising), plaintiff must allege that the defendant engaged in: (1) consumer-oriented conduct; (2) that was materially misleading; and that (3) plaintiff suffered actual injury as a result of the allegedly deceptive conduct.

Section 349(h) permits a discretionary award of reasonable attorney’s fees to a prevailing plaintiff.

Montera v. Premier Nutrition Corporation · filed 2022-10-18(h)

These sections provide that the Court “may award reasonable attorney’s fees to a prevailing plaintiff.” N.Y. GEN. BUS. LAW §§ 349(h), 350-e(3) (emphasis added).

Section 349(a) targets deceptive business practices affecting consumers at large, not a dispute unique to the contracting parties.

Altruis Group, LLC v. Prosight Specialty Management Company, Inc. · filed 2023-02-27(a)

GBL Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business.” N.Y. Gen. Bus. Law § 349(a). However, “private contract disputes between the parties do not fall within the ambit of the statute.”

Section 349(a) requires proof that the defendant’s act targeted consumers, materially misled them, and caused the plaintiff injury.

Free Holdings Inc. v. McCoy · filed 2023-03-17(a)

It requires a showing that “(1) defendant engaged in a consumer-oriented act, (2) that the consumer-oriented act was misleading in a material way, and (3) that plaintiff consequently suffered injury.”

Section 349's consumer-oriented requirement is plausibly met when a service provider's allegedly deceptive practices affect all users under form contracts, apart from a narrow conspiratorial subset.

Edmar Financial Company, LLC v. Currenex, Inc. · filed 2023-05-18(a)

Thus, plaintiffs plausibly plead that Currenex and State Street’s conduct was consumer-oriented.

Section 349(a) requires consumer-oriented conduct that is materially misleading and causes plaintiff injury; a contractual attorney-fee provision was not misleading, and the proposed claim could not proceed.

Wimberly v. Stern · filed 2023-10-04(a)

To state a claim pursuant to this statute, a Plaintiff must plead “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.”

Section 349 requires consumer-oriented conduct, and the court held that sophisticated business-to-business parties alleging only remote or derivative injuries did not satisfy that requirement, so it dismissed the claim with prejudice.

DO NOT FILE IN THIS CASE - TRANSFERRED TO CAMDEN NEW CIVIL ACTION NO. 1:19-cv-21607 · filed 2023-12-18

This Court has held that “[a]n injury is not consumer oriented if it involves “business-to-business transactions[,|” including transactions “involving complex arrangements, knowledgeable and experienced parties and large sums of money.” ... Here, the parties are sophisticated businesses—Plaintiffs are two limited liability corporations and Defendants are six corporations. ... Accordingly, Plaintiffs’ claim under the NYGBL is dismissed with prejudice.

The court held that the alleged deceptive conduct was consumer-oriented and likely to materially mislead consumers, so New York plausibly stated a claim under N.Y. Gen. Bus. Law § 349(a), and injunctive relief was appropriate.

Consumer Financial Protection Bureau v. Nexus Services, Inc. · filed 2024-03-31(a)

An act or omission violates the NYGBL if it is “consumer-oriented” and likely to “mislead a reasonable consumer” in a “material way.” Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, 647 N.E.2d 741, 743–44 (N.Y. 1995). Defendants’ acts alleged here were certainly oriented toward consumers and, as discussed extensively above, were likely to materially-mislead consumers. (Compl. ¶ 249.) ... New York has plausibly pled claims under the NYGBL for which relief can be granted.

The court held that Plaintiffs sufficiently pleaded the consumer-oriented element of N.Y. Gen. Bus. Law § 349, while leaving whether the conduct was deceptive beyond a private contract dispute for discovery.

EDDW LLC v. BANK OF AMERICA, N.A. · filed 2024-05-31

However, reviewing all the facts in the light most favorable to Plaintiffs, this Court finds that they have sufficiently pled that the practice employed by Defendant was:“consumer-oriented” as required to bring a claim under Section 349. This Court agrees with Plaintiffs assessment that Plaintiff Hays is “undoubtedly a consumer.” The question of whether Defendant has engaged in deceptive acts and practices beyond this private contract dispute is best explored after discovery.