On December 7, 2016, the California Supreme Court heard oral argument in McGill v. Citibank, No. S224086. This case presents the question of whether the Federal Arbitration Act, as construed in Concepcion, preempts the Broughton-Cruz rule. (See this blog post for more.)
In the vast majority of argued cases, the matter is submitted upon completion of oral argument, and the Court simply issues its opinion within 90 days of the argument date. On Tuesday, January 24, 2017, however, the Court vacated submission and directed the parties to file supplemental briefs on an interesting UCL-related issue. From the docket:
Submission is vacated to allow for supplemental briefing. The court requests that the parties serve and file supplemental briefs addressing the following question: Whether the 2004 amendments to the Unfair Competition Law and the false advertising law, through passage of Proposition 64, eliminated the ability of private plaintiffs to seek public injunctive relief? Amici curiae that have filed briefs in this matter may also file supplemental briefs addressing the above question if they so choose. All initial briefs addressing the above question must be served and filed simultaneously on or before February 6, 2017. Any reply to the supplemental briefs must be served and filed on or before February 13, 2017. This matter will be resubmitted, without further order, as of the date that the last supplemental brief is or could be timely filed under this or any subsequent order of this court. (See Cal. Rules of Court, rule 8.524(h).) Corrigan, J., was recused and did not participate.
Brinker is another example of a case in which the Court vacated submission post-argument and directed further briefing. In that case, the eventual opinion did not turn on (or even mention) the issue on which supplemental briefing was ordered. So, the McGill order is very interesting, to be sure, but it does not necessarily mean that this point will become a central focus of the Court's opinion. What it does mean is that the opinion will be delayed by at least a few weeks.
In my view, the clear answer to the Court's question is no, assuming the plaintiff meets the standing requirements imposed by Proposition 64. The initiative did not alter any of the remedies afforded by the UCL (as held in Mervyn's; see this blog post), so all the same forms of injunctive relief should be available both before and after the amendments.