A welcome change may be afoot for New York lawmakers, as New York Senate Bill S5162 recently passed the Senate and Assembly judiciary committees. The bill, which may soon be delivered to the Governor for signature, would amend CPLR 2106 to streamline the civil action process, ending the current notarization requirement to allow anyone to sign an affirmation sworn under penalty of perjury in place of an affidavit in a civil action within the state. Specifically, S5162 would amend CPLR 2106 to read as follows:
New York Attorney General Letitia James announced new price gouging rules intended to clarify New York’s price gouging law, N.Y. Gen. Bus. Law §396-r, earlier this month. The proposed rules seek to address many of the perceived limitations of the statute exposed during the COVID-19 pandemic and subsequent economic turbulence triggered by supply chain bottlenecks and record inflation. Public comments on the proposed rules are due May 1, 2023.
In a seismic change to its evidentiary jurisprudence, New York recently enacted legislation that significantly broadens the admissibility of statements made by a party’s agent or employee.
Until now, New York’s Civil Practice Law and Rules (“CPLR”) had an oft-maligned (or, perhaps sometimes celebrated) quirk—statements of a party’s agent or employee were inadmissible as hearsay unless made by someone with actual authority to speak on behalf of the party. This was in stark contrast to the Federal Rules of Evidence, which require only that the employee or agent be speaking “on a matter within the scope of that relationship and while it existed.”
New York Governor Kathy Hochul has declared a disaster emergency for the state through January 15, 2022 in the wake of rising COVID-19 cases in the state and the newly identified Omicron variant. According to The Wall Street Journal, New York is the first state to declare a state of emergency in response to Omicron, although many states have remained under declared states of emergency since the beginning of the pandemic. New York allowed its previous declared state of emergency to expire on June 24, 2021.
On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims Kesha defamed him by allegedly falsely accusing him of rape.
The court’s decision means that Dr. Luke will face an elevated burden of proof at trial, needing to prove by clear and convincing evidence that Kesha acted with “actual malice” when she made her allegations against him. Previously, a New York state trial court held that Dr. Luke was not a public figure and therefore only had to prove that Kesha either knew her statements were false or acted with reckless disregard for the truth. That court did not take into account the new anti-SLAPP law, which was passed on November 10th, 2020.
On March 18, 2021, retailer Union Square Supply, Inc. filed a civil rights class action lawsuit in the Southern District of New York challenging New York City’s price gouging enforcement practices. The complaint alleges that defendants are responsible for “the creation and maintenance of an illegal and unconstitutional penalty enforcement scheme, abuse of emergency powers, and other misconduct that improperly assesses penalties and fines on businesses without any notice or due process.”
Consider a hypothetical person named Jane, who bought a chair twenty years ago. The chair was designed to help relieve back pain, but it actually made it worse. Because Jane was trying many different remedies, she did not associate the chair with the new pain. Additionally, the problems with the chair were not discovered for many years, when a newspaper reported that the company had known this was a possibility. However, Jane had stopped using the chair after just a couple months, when she underwent a medical procedure that relieved her pain. Jane wants to bring a products liability claim for personal injury and negligent design, but are her claims time-barred? The answer may depend on the state in which Jane brings the action.
Businesses may be wondering whether there is increased risk of price gouging liability when they impose higher penalty terms, ask for higher up-front payments, raise rates, or otherwise seek terms that may be more burdensome. Sellers and service provides should consider the risk of being held liable for non-price terms that result in higher customer costs.