Recent Ninth Circuit UCL decision: Clemens v. DaimlerChrysler Corp.

In Clemens v. DaimlerChrysler Corp., ___ F.3d ___, 2008 WL 2840662 (9th Cir. July 24, 2008), the Ninth Circuit addressed the UCL's "fraudulent" prong:

Generally, to be actionable under the UCL, a concealed fact must be material in the sense that it is likely to deceive a reasonable consumer. Aron v. U-Haul Co. of Cal., 143 Cal. App. 4th 796, 806 (2006). Unlike a common law fraud claim, a UCL fraud claim requires no proof that the plaintiff was actually deceived. Daugherty, 144 Cal. App. 4th at 838. Instead, the plaintiff must produce evidence showing “a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.” Brockey v. Moore, 107 Cal. App. 4th 86, 99 (2003). Surveys and expert testimony regarding consumer assumptions and expectations may be offered but are not required; anecdotal evidence may suffice, although “a few isolated examples” of actual deception are insufficient. Id. (repudiating federal district court decisions which, like the subsequent case Chamberlan v. Ford Motor Co., 369 F. Supp. 2d 1138, 1145 (N.D. Cal. 2005), suggest anecdotal evidence of materiality is always insufficient under a “reasonable consumer” standard).

Slip op. at 9136. The court went on to affirm the district court's grant of summary judgment in the defendant's favor on the UCL claim, citing Daugherty and Bardin. Id. at 9136-37.

For class action junkies, the opinion also addresses "cross-jurisdictional" American Pipe tolling. Id. at 9134-35.