N.Y. General Business Law § 349-f: Pension poaching prevention

§ 349-f. Pension poaching prevention. 1. For purposes of this section:

(a) The term "veterans' benefits matter" means the preparation,

presentation, or prosecution of any claim affecting any person who has

filed or expressed an intent to file a claim for any benefit, program,

service, commodity, function, or status, entitlement which is determined

under the laws and regulations administered by the United States

department of veterans affairs or the New York state division of

veterans' affairs pertaining to veterans, their dependents, their

survivors, and any other party eligible for such benefits.

(b) The term "compensation" means money, property, or anything else of

value.

(c) The term "entity" includes, but is not limited to, any natural

person, corporation, trust, partnership, alliance, or unincorporated

association.

2. (a) No entity shall solicit, contract for, charge, or receive, or

attempt to solicit, contract for, charge, or receive, any fee or

compensation with respect to any veterans' benefits matter, except as

permitted under title 38 of the United States code and the corresponding

provisions within title 38 of the United States code of federal

regulations with respect to veterans' benefits matters before the United

States department of veterans affairs, or as permitted under state law

or rules issued by the commissioner of veterans' services with respect

to veterans' benefits matters before the department of veterans'

services.

(b) No entity shall receive compensation for referring any party to

another individual to advise or assist this party with any veterans'

benefits matter.

(c) Any entity seeking to receive compensation for advising or

assisting any party with any veterans' benefits matter shall, before

rendering any services, memorialize all terms regarding the party's

payment of fees for services rendered in a written agreement, signed by

both parties, that adheres to all criteria specified within title 38,

section 14.636, of the United States code of federal regulations.

(d) No entity shall receive any fees for any services rendered before

the date on which a notice of disagreement is filed with respect to the

party's case.

(e) No entity shall guarantee, either directly or by implication, that

any party is certain to receive specific veterans' benefits or that any

party is certain to receive a specific level, percentage, or amount of

veterans' benefits.

(f) No entity shall receive excessive or unreasonable fees as

compensation for advising or assisting any party with any veterans'

benefits matter. The factors articulated within title 38, section 14.636

of the code of federal regulations shall govern determinations of

whether a fee is excessive or unreasonable.

3. (a) No entity shall advise or assist for compensation any party

with any veterans' benefits matter without clearly providing, at the

outset of this business relationship, the following disclosure, both

orally and in writing: "this business is not sponsored by, or affiliated

with, the United States department of veterans affairs, the New York

state division of veterans' affairs, or any other congressionally

chartered veterans service organization. Other organizations, including

but not limited to the New York state division of veterans' affairs,

your local county veterans service agency, and other congressionally

chartered veterans service organizations, may be able to provide you

with this service free of charge. Products or services offered by this

business are not necessarily endorsed by any of these organizations. You

may qualify for other veterans' benefits beyond the benefits for which

you are receiving services here." The written disclosure must appear in

at least twelve-point font and must appear in a readily noticeable and

identifiable place in the entity's agreement with the party seeking

services. The party must verbally acknowledge understanding of the oral

disclosure and must provide his or her signature to represent

understanding of these provisions on the document in which the written

disclosure appears. The entity offering services must retain a copy of

the written disclosure while providing veterans' benefits services for

compensation to the party and for at least one year after the date on

which this service relationship terminates.

(b) No entity shall advertise for-compensation services in veterans

benefits matters without including the following disclosure: "this

business is not sponsored by, or affiliated with, the United States

department of veterans affairs, the New York state division of veterans'

affairs, or any other congressionally chartered veterans service

organization. Other organizations, including but not limited to the New

York state division of veterans' affairs, your local county veterans

service agency, and other congressionally chartered veterans service

organizations, may be able to provide you with these services free of

charge. Products or services offered by this business are not

necessarily endorsed by any of these organizations. You may qualify for

other veterans' benefits beyond the services that this business offers."

If the advertisement is printed, including but not limited to

advertisements visible to internet users, the disclosure must appear in

a readily visible place on the advertisement. If the advertisement is

verbal, the spoken statement of the disclosure must be clear and

intelligible.

4. (a) Any violation of this section shall constitute a deceptive act

in the conduct of business, trade, or commerce, and except as otherwise

provided in this section, shall be subject to the provisions of section

three hundred forty-nine of this article, including any right of action

and corresponding penalties described within such section.

(b) If an entity's violation of this section concerns a party who is

sixty-five years of age or older, said entity may be liable for

supplemental civil penalties as established within, and subject of the

terms of, section three hundred forty-nine-c of this article.

(c) Notwithstanding any provision of section three hundred forty-nine

of this article to the contrary:

(i) An individual who is harmed by an entity as a result of an

entity's violation of this section may bring an action in their own name

against an entity to enjoin such unlawful act or practice, an action to

recover their actual damages or twenty-five hundred dollars, whichever

is greater, or both such actions, in addition to any other remedy

available in law or equity. The court may award costs and reasonable

attorney's fees to a prevailing plaintiff.

(ii) Whenever the court shall determine that a violation of this

section has occurred, the court may impose a civil penalty of not more

than ten thousand dollars for each violation.

(iii) Any violation of paragraph (a) of subdivision two of this

section shall be a class A misdemeanor, and upon conviction thereof,

shall be punishable by a fine of not more than one thousand dollars, or

by imprisonment for not more than one year, or by both such fine and

imprisonment; provided however, a second or subsequent offense shall be

punishable by a fine of not more than three thousand dollars or by

imprisonment for not more than one year, or by both such fine and

imprisonment. In addition, the court may order as part of the sentence

imposed restitution or reparation to the victim of the crime pursuant to

section 60.27 of the penal law. The attorney general shall have the

power to prosecute any violation of paragraph (a) of subdivision two of

this section.

(iv) The civil and criminal remedies set forth in this section shall

not preclude any individual or entity or government authority from

seeking relief under any other statutory or common law right to relief.

5. (a) In addition to any liability for damages or a civil penalty

imposed pursuant to sections three hundred forty-nine, three hundred

fifty-c and three hundred fifty-d of this chapter, regarding deceptive

practices and false advertising, and subdivision twelve of section

sixty-three of the executive law, regarding proceedings by the attorney

general for equitable relief against fraudulent or illegal consumer

fraud, a person or entity who engages in any conduct prohibited by such

provisions of law, and whose conduct is perpetrated against one or more

persons seeking or using services in connection with a veterans'

benefits matter, may be liable for an additional civil penalty not to

exceed ten thousand dollars, in accordance with paragraph (b) of this

subdivision.

(b) In determining whether to impose a supplemental civil penalty

pursuant to paragraph (a) of this subdivision, and the amount of any

such penalty, the court shall consider, in addition to other appropriate

factors as determined by the court, the extent to which the following

factors are present:

(i) whether the defendant knew that such defendant's conduct was

directed to one or more persons seeking or using services in connection

with a veteran's benefits matter or whether such defendant knowingly

acted with disregard for the rights of a person seeking or using

services in connection with a veterans' benefits matter;

(ii) whether the defendant's conduct:

(1) caused a person seeking or using services to suffer loss or

encumbrance of a primary residence, loss of employment or source of

income, substantial loss of property or assets essential to the health

or welfare of the person seeking or using services in connection with a

veteran's benefits matter; or

(2) whether one or more persons seeking or using services in

connection with a veteran's benefits matter were substantially more

vulnerable to such defendant's conduct because of disability, impaired

understanding, or any other perceived disadvantage, and actually

suffered physical or economic damage resulting from such defendant's

conduct.

(c) Restitution ordered pursuant to the provisions of law listed in

paragraph (a) of this subdivision or pursuant to any other section of

law shall be given priority over the imposition of civil penalties

ordered by the court under this subdivision.

6. If any clause, sentence, paragraph or part of this section or the

application thereof shall be adjudged by any court of competent

jurisdiction to be invalid, such judgment shall not affect, impair, or

invalidate the remainder thereof, but shall be confined in its operation

to the clause, sentence, paragraph or part thereof directly involved in

the controversy in which such judgment shall have been rendered.