representatives need meet UCL standing requirements]; In re Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145 [104 Cal.Rptr.3d 329] [reversing denial of certification of a class against a retail- er that sold products containing the con- trolled steroid androstenediol]; Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622 [105 Cal.Rptr.3d 795] [reversing certification of a class of con- sumers who purchased mouthwash that was falsely marketed as a replacement for dental floss, holding that class mem- bers who were not exposed to the alleged misrepresentations would not be entitled to restitution]; McAdams v. Monier, Inc. (2010) 182 Cal.App.4th 173 [105 Cal.Rptr.3d 704] [reversing the denial of certification of a class of pur- chasers of defective roof tiles]; Fairbanks v. Farmers New World Life Ins. Co. (July 13, 2011) __ Cal.App.4th __ [__ Cal.Rptr.3d __, 2011 WL 2714173] [affirming the denial of certification of a class of purchasers of universal life insur- ance policies because plaintiffs failed to show that the defendant engaged in uniform conduct likely to mislead the entire class.)7
Conclusion Although Proposition 64 clearly had
a significant impact on the UCL, the statute continues to provide consumers and businesses with viable legal rights to pursue relief for unfair business prac- tices. The opinions from the California Supreme Court confirm the statute’s via- bility but also reveal the Court’s strong view that injunctive relief is a key compo- nent to the statute. Counsel are well- advised to consider the Court’s opinions on injunctive relief in filing UCL claims in the future.
Endnotes:
California’s False Advertising Law (the “FAL”) (Bus. & Prof. Code, § 17500), is equally comprehensive but within the
1
more confined field of false and misleading advertising. 2
Restitution may be recovered even without the issuance of
an injunction. (ABC International Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1268-71 [61
Cal.Rptr.2d 42].) 3
The same changes were made to the standing provisions
of the false advertising law; “where once ‘any person act- ing for the interests of itself, its members or the general public” (§ 17535, as amended by Stats. 1972, ch. 711, §3, p1300) could sue, now standing is limited to ‘any person who has suffered injury in fact an has lost money or prop- erty as a result of a violation of this chapter’ (§ 17535, as amended by Prop. 64, § 5.)” (Kwikset, supra, 51 Cal.4th at p. 321.)
4 Restitution may be recovered even without the issuance of
an injunction. (ABC International Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1268-71 [61
Cal.Rptr.2d 42].) 5
Class actions are authorized for UCL claims pursuant to Business & Professions Code section 17203 which provides: Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which consti- tutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. Any person may pursue representative claims for relief on behalf of others only if the claimant meets the standing require- ments of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attor- ney, or city prosecutor in this state.
6 The Court disapproved the following cases in which the
courts had concluded that eligibility for restitution was a requirement for standing: Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210 [109 Cal.Rptr.3d 27]; Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1 [89 Cal.Rptr.3d 455]; Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798 [66 Cal.Rptr.3d
543]. 7
The foregoing are only a selection of the opinioins issued by the Supreme Court and appellate courts on the UCL.
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JANUARY 2012 The Advocate Magazine — 81
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