United States District Court, Eastern District of New York
July 16, 2002
IN RE SIMON II LITIGATION.
The opinion of the court was delivered by: Weinstein, Senior District Judge.
MEMORANDUM AND ORDER (BERGERON)
Plaintiff, a Massachusetts employees benefit fund, brought
suit based on sections 349 and 350 of New York General Business
Law. In doubt was whether New York law applied. See Bergeron v.
Philip Morris, Inc., 100 F. Supp.2d 164 (E.D.N.Y. 2000). The New
York Court of Appeals has now ruled that sections 349 and 350 of
the New York Business Law do not apply to a consumer injured in
a transaction outside the state; the consumer must be deceived
in New York. Goshen v. The Mutual Life Insurance Company of New
York, 2002 WL 1418408 (2002).
The plaintiff may wish to amend the complaint to plead
Massachusetts law. If so, the case should be transferred to the
district court of Massachusetts for the convenience of parties
and witnesses, in the interest of justice, where amendment may
be sought. See 28 U.S.C. § 1404. If the plaintiff wishes the
case transferred, it should submit an order of transfer within
10 days. Otherwise the complaint will be dismissed for failure
to state a cause of action on an order to be submitted by
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