13 NYCRR 600.4

Section 600.4. Examples of Unfair Leverage or Unconscionable Means. (a) In General. A seller charges an unconscionably excessive price in a sale, pursuant to General Business Law § 396-r(3)(a), if, in the course of a scrutinized sale, the seller exercises either unfair leverage, unconscio- nable means, or both (whether or not accompanied by an amount of excess in price that is unconscionably extreme). The exercise of unfair leverage or unconscionable means includes, but is not limited to, the conduct described in subdivisions (b) through (f) of this rule. (b) Deceptive Pricing. A seller uses unfair leverage or unconscionable means if the seller engages in deceptive acts or practices that serve to mis- represent or obscure the total price of the essential product. (c) Conditioning the Sale of Essential Products on Agreement to Exces- sively Burdensome Payment Terms. A seller uses unfair leverage or un- conscionable means if, during an abnormal disruption of the market, the seller conditions the sale of the essential product on a consumer's agree- ment to excessively burdensome payment terms, including but not limited to a liquidated damages provision that is unenforceable as a penalty, the payment of usurious interest, or, if the essential product is to be paid for via loan or through a retail installment contract, providing as security for the loan assets whose value grossly exceeds the pre-disruption price of the essential product. (d) Refusal to Honor Contracted-For Prices. A seller is presumed to use unfair leverage or unconscionable means if the scrutinized sale is to be made pursuant to a contract agreed with the buyer prior to the onset of the abnormal disruption of the market, the buyer is a consumer, and the seller threatens to withhold, or withholds, performance lawfully due under the contract unless the buyer consents to pay more than the existing contract provides the buyer must pay. For purposes of this subdivision (d): (1) A contract is modified "so as to increase the price the contract provides the buyer must pay," if, at the time of the modification, it is more likely than not that the modified contract would cause the buyer to pay more for the essential product than the buyer would pay under the unmodi- fied contract. (2) The conduct specified in this subdivision (d) constitutes unfair leverage or unconscionable means even if the buyer acquiesces to the sell- er's threat to withhold performance, ratifies the change in price, agrees to waive subsequent remedies, could obtain the essential products from an- other source of supply, would not be irreparably harmed by the withhold- ing of performance, or any combination of the foregoing. (3) A seller may rebut the presumption established in this subdivision (d) with evidence that, as provided in 13 N.Y.C.R.R. § 600.9, the demanded increase in the amount charged (i) preserves the margin of profit that the seller received for the same goods and services prior to the abnormal disruption of the market or (ii) is necessary to recover additional costs not within the control of the seller that were imposed on the seller for the goods or services. (e) High Pressure Sales Tactics. A seller uses unfair leverage or uncon- scionable means if, during an abnormal disruption of the market, a seller sells an essential product to a consumer using high-pressure sales tactics, including but not limited to: (1) tactics that materially diminish the buyer's ability to comparison shop or adequately review the terms of the sale agreement, including but not limited to the use or threat of violence, the use of obscene or abusive language, or the physical confinement of the buyer; or, (2) demanding that the buyer not communicate with, or respond to lawful process issued by, the Attorney General or any other law enforce- ment agent or agency; or, (3) any act which would cause the resulting contract of sale to be void on the grounds of undue influence. (f) Unfair Leverage of Market Position. A seller uses unfair leverage or unconscionable means if, during an abnormal disruption of the market, the seller engages in unfair leverage of market position, as provided by 13 N.Y.C.R.R. § 600.5.