In Yokoyama v. Midland National Life Ins. Co., ___ F.3d ___ (9th Cir. Feb. 8, 2010), the Ninth Circuit reversed an order denying class certification of claims brought under Hawaii's consumer protection law, which bears a strong resemblance to the UCL.
Like the UCL's "fraudulent" prong, Hawaii's Deceptive Practices Act (Haw. Rev. Stat. § 480.2) does not require proof of actual reliance or deception; rather, "the capacity to deceive is sufficient." Slip op. at 2131 (citation omitted). Hence, "there is no reason to look at the circumstances of each individual purchase" in assessing whether common questions predominate under Rule 23. Id. Instead, "the fact-finder need only determine whether [the defendant's marketing] brochures were capable of misleading a reasonable consumer." Id.
This opinion should be useful for practitioners handling UCL "fraudulent" prong cases in federal court under CAFA.