§4.8 B. Class Actions Under Gbl § 349

• Jurisdiction: New York

B. Class Actions under GBL § 349

In contrast to Donnelly Act claims, claims under GBL § 349 may be brought as class actions.⁴²¹ GBL § 349(h) permits private plaintiffs to recover “actual damages or fifty dollars, whichever is greater” and authorizes the court, “in its discretion,” to treble any actual damages if it finds that the defendant “willfully or knowingly” violated the statute.⁴²² By the statute’s plain terms, the plaintiff can elect to pursue actual damages rather than the $50 minimum, and the treble damages are discretionary. Plaintiffs, therefore, can bring class actions without being barred by the CPLR 901(b) prohibition on class actions to recover penalties (see II.C.), so long as they elect to pursue only actual damages.

Accordingly, in Cox v. Microsoft, the First Department barred a plaintiff from bringing a class action on behalf of software purchasers under the Donnelly Act against software giant...