In Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), the Ninth Circuit construed the UCL in the context of a competitor action. The plaintiff, a producer of karaoke records, alleged that the defendant, a competing karaoke producer, falsely represented to its customers (who are "distributors and retailers that resell these records to the public") that all songs on their records are 100% licensed for copyright purposes. This conduct, the plaintiff alleged, gave the defendant a competitive advantage, and the plaintiff lost money as a result. Id. at 1141, 1152 & n.7. The district court dismissed the plaintiff's UCL claim, and the Ninth Circuit affirmed.
As an initial matter, the Ninth Circuit set forth the standards governing UCL "unlawful," "unfair," and "fraudulent" prong claims in competitor actions, notably reciting the pre-Prop. 64 formulation of "fraudulent":
California’s statutory unfair competition laws broadly prohibit unlawful, unfair, and fraudulent business acts. Korea Supply Co., 63 P.3d at 943. Unlawful acts are “anything that can properly be called a business practice and that at the same time is forbidden by law . . . be it civil, criminal, federal, state, or municipal, statutory, regulatory, or court-made,” where court-made law is, “for example a violation of a prior court order.” Nat’l Rural Telecomm. Coop. v. DIRECTV, Inc., 319 F. Supp. 2d 1059, 1074 & n.22 (C.D. Cal. 2003) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 113 Cal. Rptr. 2d 399, 414 (Ct. App. 2001); Saunders v. Superior Court, 33 Cal. Rptr. 2d 438, 441 (Ct. App. 1994)) (internal quotations omitted). Unfair acts among competitors means “conduct that threatens an incipient violation of an antitrust law, or violates the spirit or policy of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 544 (Cal. 1999). Finally, fraudulent acts are ones where members of the public are likely to be deceived. Nat’l Rural Telecomm. Coop., 319 F. Supp. 2d at 1077-78.
Id. at 1151-52. In the Ninth Circuit's view, this particular UCL claim was predicated largely on the terms of the contracts between the defendant karaoke producer and the retailers/distributors, which are what obligated the producer to obtain full copyright licenses for the songs in the first place:
We first address the claims based on contracts and misrepresentations to which Sybersound was not a party, namely the misrepresentations to the Customers and copyright holders about payment of royalties and licenses, which sound in contract law. Under the sweeping standing provisions of California’s UCL, “[s]ection 17200 does not require that a plaintiff prove that he or she was directly injured by the unfair practice or that the predicate law provides for a private right of action.” Gregory v. Albertson’s Inc., 128 Cal. Rptr. 2d 389, 392 (Ct. App. 2002). “[A] breach of contract may form the predicate for a section 17200 claim, provided it also constitutes conduct that is unlawful, or unfair, or fraudulent.” Nat’l Rural Telecomm. Coop., 319 F. Supp. 2d at 1074 (internal quotation and citation omitted). Sybersound, however, has not pled that the breaches of contract are independently unlawful, unfair, or fraudulent, merely that the Corporation Defendants do not pay royalties or acquire licenses from other co-owners, in breach of their contracts with licensors and the Customers.
Id. at 1152 (footnote omitted). The Ninth Circuit concluded, for reasons akin to the concerns that underlie the equitable abstension doctrine, that the plaintiff should not be allowed to bring these UCL claims on behalf of the sophisticated contracting parties:
Because the unfair competition claim is based upon the misrepresentations that occurred in separate business relationships among karaoke records producers, licensors, and the Customers, the court would be placed in the awkward situation of enforcing private contracts among sophisticated parties who are not all parties to this lawsuit. See Gregory, 128 Cal. Rptr. 2d at 396 (dismissing a UCL claim and noting that the specific remedy sought under the UCL would “cause the court to assume the roles of real estate broker or property manager . . . [and] require the court to make competitive business judgments.” (internal quotation omitted)).
In this case, forcing “Defendants to fully license their products” and enforcing sales and royalties contracts through this litigation may “leave victims worse off than they would be if they filed individual actions against [defendants].” Rosenbluth Int’l, Inc. v. Superior Court, 124 Cal. Rptr. 2d 844, 847 (Ct. App. 2002) (dismissing a UCL claim that was based on a contract where the public in general was not harmed by the defendant’s unlawful practices, but where the victims of the unlawful actions were sophisticated corporations that negotiated their individual contracts with defendants). Courts are institutionally ill-suited to enforce and superintend private contracts among business entities where the concerned entities themselves are not parties to the suit.
Id. at 1153. As for any non-contract-based misrepresentations, the Ninth Circuit disposed of them as follows:
Sybersound’s allegations that [the defendants] falsely told the Customers that Sybersound’s karaoke recordings infringed on copyrights also fail to state a claim. Since Sybersound cannot state a claim under the Lanham Act or the Copyright Act and has not pled any other unlawful acts under which this claim would fall, it cannot meet the unlawful conduct prong of the UCL. Moreover, Sybersound has also not pled an act that would be an incipient violation of antitrust law, as required under Cel-Tech for claims against competitors. Finally, Sybersound has not pled that these misrepresentations are likely to deceive members of the general public.
Accordingly, we conclude that the UCL claim was also properly dismissed by the district court.
Id. This opinion's approach to the UCL is much more conservative than that of another Ninth Circuit panel in a case handed down just two months later. Williams v. Gerber Products Co., 523 F.3d 934 (9th Cir. 2008) (discussed in this blog post).