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GENERAL BUSINESS LAW 349 (DECEPTIVE BUSINESS PRACTICES) CAUSE OF ACTION PROPERLY SURVIVED THE MOTION TO DISMISS AND THE GENERAL BUSINESS LAW 340 (RESTRAINT OF TRADE) CAUSE OF ACTION SHOULD HAVE SURVIVED IN THIS FRAUD ACTION INVOLVING DIAMOND APPRAISALS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the General Business Law 349 (deceptive business practices) cause of action properly survived a motion to dismiss and the General Business Law 340 (restraint of trade) cause of action should have survived in this fraud action involving diamond appraisals:

Plaintiff has alleged that IGI Defendants engaged in deceptive “consumer-oriented” conduct, as the alleged fraud scheme, which involved the issuance of false appraisal certificates for over-graded diamonds, were ultimately directed at misleading consumers into buying diamonds at artificially inflated prices. Indeed, the gravamen of the amended complaint is harm to the public interest … . Plaintiff has standing to bring a claim despite not being a consumer, as courts have permitted business competitors to bring claims under GBL 349 so long as there has been harm done to the public at large … . * * *

Plaintiff has demonstrated a per se restraint of trade by pleading a conspiracy in the form of horizontal price-fixing. As alleged, the conspiracy permits diamond dealers and jewelry manufacturers who participate in the scheme to buy over-graded diamonds at lower prices, and then re-sell them to retailers and consumers at artificially inflated prices. At the same time, dealers and manufacturers who are not part of the conspiracy can only purchase accurately graded stones, or over-grades stones, at a higher price, preventing them from competing with the conspirators. The complaint also alleged an unreasonable restraint of trade under the “rule of reason” standard. Plaintiff has pleaded a conspiracy among [the defendants] and others, and facts showing that the conspirators possessed market power to produce a market-wide anticompetitive effect … . KS Trade LLC v International Gemological Inst., Inc., 2021 NY Slip Op 00259, First Dept 1-19-21

 

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