N.Y. GBS Law § 349-F — New York Code / Act GBS / Article 22-A / Section 349-F
Pension poaching prevention
Status: in_force

§ 349-f. Pension poaching prevention. 1. For purposes of this section:\n  (a) The term "veterans' benefits matter" means the preparation,\npresentation, or prosecution of any claim affecting any person who has\nfiled or expressed an intent to file a claim for any benefit, program,\nservice, commodity, function, or status, entitlement which is determined\nunder the laws and regulations administered by the United States\ndepartment of veterans affairs or the New York state division of\nveterans' affairs pertaining to veterans, their dependents, their\nsurvivors, and any other party eligible for such benefits.\n  (b) The term "compensation" means money, property, or anything else of\nvalue.\n  (c) The term "entity" includes, but is not limited to, any natural\nperson, corporation, trust, partnership, alliance, or unincorporated\nassociation.\n  2. (a) No entity shall solicit, contract for, charge, or receive, or\nattempt to solicit, contract for, charge, or receive, any fee or\ncompensation with respect to any veterans' benefits matter, except as\npermitted under title 38 of the United States code and the corresponding\nprovisions within title 38 of the United States code of federal\nregulations with respect to veterans' benefits matters before the United\nStates department of veterans affairs, or as permitted under state law\nor rules issued by the commissioner of veterans' services with respect\nto veterans' benefits matters before the department of veterans'\nservices.\n  (b) No entity shall receive compensation for referring any party to\nanother individual to advise or assist this party with any veterans'\nbenefits matter.\n  (c) Any entity seeking to receive compensation for advising or\nassisting any party with any veterans' benefits matter shall, before\nrendering any services, memorialize all terms regarding the party's\npayment of fees for services rendered in a written agreement, signed by\nboth parties, that adheres to all criteria specified within title 38,\nsection 14.636, of the United States code of federal regulations.\n  (d) No entity shall receive any fees for any services rendered before\nthe date on which a notice of disagreement is filed with respect to the\nparty's case.\n  (e) No entity shall guarantee, either directly or by implication, that\nany party is certain to receive specific veterans' benefits or that any\nparty is certain to receive a specific level, percentage, or amount of\nveterans' benefits.\n  (f) No entity shall receive excessive or unreasonable fees as\ncompensation for advising or assisting any party with any veterans'\nbenefits matter. The factors articulated within title 38, section 14.636\nof the code of federal regulations shall govern determinations of\nwhether a fee is excessive or unreasonable.\n  3. (a) No entity shall advise or assist for compensation any party\nwith any veterans' benefits matter without clearly providing, at the\noutset of this business relationship, the following disclosure, both\norally and in writing: "this business is not sponsored by, or affiliated\nwith, the United States department of veterans affairs, the New York\nstate division of veterans' affairs, or any other congressionally\nchartered veterans service organization. Other organizations, including\nbut not limited to the New York state division of veterans' affairs,\nyour local county veterans service agency, and other congressionally\nchartered veterans service organizations, may be able to provide you\nwith this service free of charge. Products or services offered by this\nbusiness are not necessarily endorsed by any of these organizations. You\nmay qualify for other veterans' benefits beyond the benefits for which\nyou are receiving services here." The written disclosure must appear in\nat least twelve-point font and must appear in a readily noticeable and\nidentifiable place in the entity's agreement with the party seeking\nservices. The party must verbally acknowledge understanding of the oral\ndisclosure and must provide his or her signature to represent\nunderstanding of these provisions on the document in which the written\ndisclosure appears. The entity offering services must retain a copy of\nthe written disclosure while providing veterans' benefits services for\ncompensation to the party and for at least one year after the date on\nwhich this service relationship terminates.\n  (b) No entity shall advertise for-compensation services in veterans\nbenefits matters without including the following disclosure: "this\nbusiness is not sponsored by, or affiliated with, the United States\ndepartment of veterans affairs, the New York state division of veterans'\naffairs, or any other congressionally chartered veterans service\norganization. Other organizations, including but not limited to the New\nYork state division of veterans' affairs, your local county veterans\nservice agency, and other congressionally chartered veterans service\norganizations, may be able to provide you with these services free of\ncharge. Products or services offered by this business are not\nnecessarily endorsed by any of these organizations. You may qualify for\nother veterans' benefits beyond the services that this business offers."\nIf the advertisement is printed, including but not limited to\nadvertisements visible to internet users, the disclosure must appear in\na readily visible place on the advertisement. If the advertisement is\nverbal, the spoken statement of the disclosure must be clear and\nintelligible.\n  4. (a) Any violation of this section shall constitute a deceptive act\nin the conduct of business, trade, or commerce, and except as otherwise\nprovided in this section, shall be subject to the provisions of section\nthree hundred forty-nine of this article, including any right of action\nand corresponding penalties described within such section.\n  (b) If an entity's violation of this section concerns a party who is\nsixty-five years of age or older, said entity may be liable for\nsupplemental civil penalties as established within, and subject of the\nterms of, section three hundred forty-nine-c of this article.\n  (c) Notwithstanding any provision of section three hundred forty-nine\nof this article to the contrary:\n  (i) An individual who is harmed by an entity as a result of an\nentity's violation of this section may bring an action in their own name\nagainst an entity to enjoin such unlawful act or practice, an action to\nrecover their actual damages or twenty-five hundred dollars, whichever\nis greater, or both such actions, in addition to any other remedy\navailable in law or equity. The court may award costs and reasonable\nattorney's fees to a prevailing plaintiff.\n  (ii) Whenever the court shall determine that a violation of this\nsection has occurred, the court may impose a civil penalty of not more\nthan ten thousand dollars for each violation.\n  (iii) Any violation of paragraph (a) of subdivision two of this\nsection shall be a class A misdemeanor, and upon conviction thereof,\nshall be punishable by a fine of not more than one thousand dollars, or\nby imprisonment for not more than one year, or by both such fine and\nimprisonment; provided however, a second or subsequent offense shall be\npunishable by a fine of not more than three thousand dollars or by\nimprisonment for not more than one year, or by both such fine and\nimprisonment. In addition, the court may order as part of the sentence\nimposed restitution or reparation to the victim of the crime pursuant to\nsection 60.27 of the penal law. The attorney general shall have the\npower to prosecute any violation of paragraph (a) of subdivision two of\nthis section.\n  (iv) The civil and criminal remedies set forth in this section shall\nnot preclude any individual or entity or government authority from\nseeking relief under any other statutory or common law right to relief.\n  5. (a) In addition to any liability for damages or a civil penalty\nimposed pursuant to sections three hundred forty-nine, three hundred\nfifty-c and three hundred fifty-d of this chapter, regarding deceptive\npractices and false advertising, and subdivision twelve of section\nsixty-three of the executive law, regarding proceedings by the attorney\ngeneral for equitable relief against fraudulent or illegal consumer\nfraud, a person or entity who engages in any conduct prohibited by such\nprovisions of law, and whose conduct is perpetrated against one or more\npersons seeking or using services in connection with a veterans'\nbenefits matter, may be liable for an additional civil penalty not to\nexceed ten thousand dollars, in accordance with paragraph (b) of this\nsubdivision.\n  (b) In determining whether to impose a supplemental civil penalty\npursuant to paragraph (a) of this subdivision, and the amount of any\nsuch penalty, the court shall consider, in addition to other appropriate\nfactors as determined by the court, the extent to which the following\nfactors are present:\n  (i) whether the defendant knew that such defendant's conduct was\ndirected to one or more persons seeking or using services in connection\nwith a veteran's benefits matter or whether such defendant knowingly\nacted with disregard for the rights of a person seeking or using\nservices in connection with a veterans' benefits matter;\n  (ii) whether the defendant's conduct:\n  (1) caused a person seeking or using services to suffer loss or\nencumbrance of a primary residence, loss of employment or source of\nincome, substantial loss of property or assets essential to the health\nor welfare of the person seeking or using services in connection with a\nveteran's benefits matter; or\n  (2) whether one or more persons seeking or using services in\nconnection with a veteran's benefits matter were substantially more\nvulnerable to such defendant's conduct because of disability, impaired\nunderstanding, or any other perceived disadvantage, and actually\nsuffered physical or economic damage resulting from such defendant's\nconduct.\n  (c) Restitution ordered pursuant to the provisions of law listed in\nparagraph (a) of this subdivision or pursuant to any other section of\nlaw shall be given priority over the imposition of civil penalties\nordered by the court under this subdivision.\n  6. If any clause, sentence, paragraph or part of this section or the\napplication thereof shall be adjudged by any court of competent\njurisdiction to be invalid, such judgment shall not affect, impair, or\ninvalidate the remainder thereof, but shall be confined in its operation\nto the clause, sentence, paragraph or part thereof directly involved in\nthe controversy in which such judgment shall have been rendered.\n