S T A T E O F N E W Y O R K
________________________________________________________________________
7346
I N S E N A T E
April 6, 2000
___________
Introduced by Sen. VOLKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Commerce, Economic Devel-
opment and Small Business
AN ACT to amend the state administrative procedure act and the civil
practice law and rules, in relation to staying or dismissing class
actions if a state agency has jurisdiction over one or more of the
defendants and staying all discovery and other proceedings during the
pendency of a motion to dismiss or a motion for summary judgment
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The state administrative procedure act is amended by adding
2 a new section 208 to read as follows:
3 S 208. PRESUMPTION OF VALIDITY. IN A CIVIL ACTION BROUGHT AGAINST A
4 REGULATED ENTITY DOING BUSINESS IN THIS STATE FOR HARM ALLEGEDLY CAUSED
5 BY AN ACTIVITY OR PRACTICE ENGAGED IN BY THAT ENTITY, THERE IS A REBUTT-
6 ABLE PRESUMPTION THAT THE ENTITY AND/OR ITS AGENT OR AGENTS IS NOT
7 LIABLE IF, AT THE TIME THE ACT GIVING RISE TO THE COMPLAINT TOOK PLACE,
8 THE ENTITY HAD RECEIVED THE EXPLICIT OR IMPLICIT APPROVAL OF THE REGULA-
9 TORY AUTHORITY CHARGED WITH OVERSEEING THAT ENTITY TO ENGAGE IN THE
10 ACTIVITY OR PRACTICE AT ISSUE, OR THE ENTITY HAS COMPLIED WITH ALL
11 APPLICABLE STATUTORY AND REGULATORY REQUIREMENTS RELATING TO THE PRAC-
12 TICE OR ACTIVITY AT ISSUE, INCLUDING BUT NOT LIMITED TO, RULES, REGU-
13 LATIONS AND RELATED DOCUMENTS.
14 S 2. Subdivision a of section 901 of the civil practice law and rules
15 is amended by adding a new paragraph 6 to read as follows:
16 6. (A)(I) A CLASS ACTION SHALL BE STAYED OR DISMISSED IN THE EVENT
17 THAT A STATE AGENCY HAS JURISDICTION OVER ONE OR MORE DEFENDANTS AND
18 SUCH AGENCY HAS THE POWER TO AWARD PLAINTIFFS ADEQUATE RELIEF SIMILAR TO
19 THE RELIEF AVAILABLE IN THE ACTION.
20 (II) THE COURT SHALL STAY OR DISMISS A CLASS ACTION UNLESS THE COURT
21 DETERMINES THAT (A) THE INTERPRETATION OR APPLICATION OF A STATUTE, RULE
22 OR REGULATION, OR A VIOLATION THEREOF, INVOLVES QUESTIONS OF LAW ONLY;
23 AND (B) THE STATE AGENCY IS NOT EMPOWERED TO RENDER FINDINGS OF FACT OR
24 CONCLUSIONS OF LAW OR OTHERWISE AID THE COURT IN RESOLVING THE ACTION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD16259-01-0
S. 7346 2
1 (III) THE COURT SHALL SPECIFY IN ITS ORDER OR JUDGMENT THE STATE AGEN-
2 CY AND THE STATUTORY AUTHORITY SUPPORTING THE STAY OR DISMISSAL.
3 (B) A COURT THAT STAYS AN ACTION UNDER THIS SECTION:
4 (I) SHALL REFER SPECIFIC ISSUES OR CLAIMS WITHIN THE STATE AGENCY`S
5 JURISDICTION TO THE AGENCY FOR ACTION; AND
6 (II) MAY DIRECT THE STATE AGENCY TO REPORT TO THE COURT PERIODICALLY
7 CONCERNING THE DISPOSITION OF THE MATTERS REFERRED TO THE AGENCY.
8 (C) THE STATUTE OF LIMITATIONS FOR AN ACTION DISMISSED OR STAYED
9 PURSUANT TO THIS SECTION SHALL BE TOLLED FOR THE PERIOD DURING WHICH THE
10 PLAINTIFF SEEKS AN ADMINISTRATIVE REMEDY.
11 (D) THE COURT SHALL PROVIDE THAT THE DURATION OF THE STAY SHALL BE NOT
12 LESS THAN SIX MONTHS FROM THE DATE THE COURT ENTERS THE ORDER CONTAINING
13 THE STAY, OR SUCH OTHER REASONABLE TIME AS THE COURT MAY DETERMINE.
14 (E) RELIEF AWARDED TO A CLAIMANT MAY BE ADEQUATE EVEN IF THE RELIEF
15 DOES NOT INCLUDE EXEMPLARY DAMAGES, MULTIPLE DAMAGES, ATTORNEYS` FEES,
16 OR COURT COST.
17 S 3. Rule 907 of the civil practice law and rules, as added by chapter
18 207 of the laws of 1975, is amended to read as follows:
19 Rule 907. Orders in conduct of class actions. A. In the conduct of
20 class actions the court may make appropriate orders:
21 1. determining the course of proceedings or prescribing measures to
22 prevent undue repetition or complication in the presentation of evidence
23 or argument;
24 2. requiring, for the protection of the members of the class, or
25 otherwise for the fair conduct of the action, that notice be given in
26 such manner as the court may direct to some or all of the members of any
27 step in the action, or of the proposed extent of the judgment, or of the
28 opportunity of members to signify whether they consider the represen-
29 tation fair and adequate, or to appear and present claims or defenses,
30 or otherwise to come into the action;
31 3. imposing conditions on the representative parties or on interve-
32 nors;
33 4. requiring that the pleadings be amended to eliminate therefrom
34 allegations as to representation of absent persons, and that the action
35 proceed accordingly;
36 5. directing that a money judgment favorable to the class be paid
37 either in one sum, whether forthwith or within such period as the court
38 may fix, or in such installments as the court may specify;
39 6. dealing with similar procedural matters.
40 The orders may be altered or amended as may be desirable from time to
41 time.
42 B. THE COURT SHALL ORDER THAT ALL OTHER PROCEEDINGS, INCLUDING DISCOV-
43 ERY, SHALL BE STAYED DURING THE PENDENCY OF A MOTION TO DISMISS OR A
44 MOTION FOR SUMMARY JUDGMENT, UNLESS THE COURT FINDS, UPON MOTION, THAT
45 PARTICULARIZED DISCOVERY IS NECESSARY TO PRESERVE EVIDENCE OR TO PREVENT
46 UNDUE PREJUDICE. SUCH ORDER MAY BE ALTERED OR AMENDED AS MAY BE DESIRA-
47 BLE FROM TIME TO TIME.
48 S 4. This act shall take effect immediately and shall apply to all
49 suits filed on or after such date.
.SO DOC S 7346 *END* BTXT 1999
Bill S07346
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