A recent Ninth Circuit opinion concurring in the denial of en banc rehearing had this to say about UCL standing and Kwisket:
Whoa!!! The Chief has put the proverbial cart before the horse. .... Occidental is free, on remand, to renew its motion to dismiss on the ground that Amazon Watch may not have standing to assert its claim under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. ....
The question of standing cannot be resolved on the bare pleadings, which is all we have before us given the procedural posture of this appeal. .... Here, Occidental disputes the existence, the cause and the redressability of the harm alleged by Amazon Watch. Resolving these issues will require factual development on a number of fronts. For example, to show harm, Amazon Watch may produce evidence of the manner in which Occidental’s conduct forced it to divert resources from its central mission of protecting the rainforest and advancing the rights of the indigenous people of the Amazon. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322-24 (2011) (requiring economic harm to prove UCL standing). To show causation, Amazon Watch may also produce evidence linking Occidental’s alleged deceptive practices to Amazon Watch’s diminished ability to carry out its mission. See id. at 326 (affirming that fraud or reliance is a causal mechanism recognized under the UCL). Further, Amazon Watch may prove a continuing injury, which may be redressed through, for example, injunctive relief compelling Occidental to research and remediate environmental harms or to conduct outreach and education about health risks with the indigenous people. See id. at 336-37 (standing under the UCL is not dependent on the availability of restitution as a remedy).
The district court did not address standing, and we need not—indeed, could not—do so in the first instance here.
Carijano v. Occidental Petroleum, ___ F.3d ___, 2012 WL 1970375 (May 31, 2012) (Wardlaw, J., concurring in denial of en banc rehearing) (slip op. at 6009-11) (emphasis added).
Judges Schroeder and Gould joined in Judge Wardlaw's concurrence. Four judges joined Chief Judge Kosinski in dissenting from the denial of en banc rehearing.
Judge Wardlaw wrote the opinion of which rehearing was sought, Carijano v. Occidental Petroleum, 643 F.3d 1216 (2011). Her views in this concurrence will be useful not only on remand in this case, but in other cases as well.
There can be little remaining doubt that harms such as investigative costs and diversion of resources caused by a defendant's UCL violations are sufficient to confer Prop. 64 standing. Another recent case similarly interpreted Kwikset. Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc., 203 Cal.App.4th 913 (2012) (discussed in this blog post).