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General Business Law 349 Action Must Be Based Upon a Deceptive Act Which Has an Impact on the General Public

The Third Department determined an action pursuant to General Business Law 349 was properly dismissed because the underlying financial service (re: tax deferred retirement plans) was offered to school districts, not the general public:

“A cause of action to recover damages pursuant to General Business Law § 349 has 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” … . “The threshold requirement of consumer-oriented conduct is met by a showing that ‘the acts or practices have a broader impact on consumers at large’ in that they are ‘directed to consumers’ or ‘potentially affect similarly situated consumers'” .. . “Consumers,” in turn, generally are defined as “those who purchase goods and services for personal, family or household use” … . An act or practice will be deemed to be deceptive where it “is likely to mislead a reasonable consumer acting reasonably under the circumstances” … .

Applying these principles to the matter before us, it is readily apparent that Supreme Court properly granted defendant’s motion to dismiss. As a starting point, the underlying complaint fails to sufficiently allege that defendant’s purportedly “deceptive practices [were] aimed at the general public” … . In this regard, it is undisputed that defendant contracted with the plan sponsors, i.e., the relevant school districts, and not the districts’ individual employees, the latter of whom selected their particular investment options from the list of service providers chosen by their employers. School districts, as business-like entities, cannot properly be viewed as consumers for purposes of General Business Law § 349 … . Benetech Inc v Omni Fin Group Inc, 2014 NY Slip Op 02480, 3rd Dept 4-10-14

 

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