In Rose v. Bank of America, N.A., ___ Cal.App.4th ___ (Nov. 21, 2011), the Court of Appeal (Second Appellate District, Division Two) held that a UCL "unlawful" prong claim could not be predicated on alleged violations of the federal Truth in Savings Act (TISA), 12 U.S.C. § 4301 et seq.
The Court reasoned that Congress evinced a clear intent not to allow private enforcement of that Act by repealing the statute creating a private right of action:
We do not believe that California consumers can seek injunctive relief and restitution against a bank for “unlawful” conduct when Congress has clearly rejected a private right to enforce TISA. Congress indicated its intent in 1996, when it enacted a sunset clause that expressly repealed the statute allowing individuals to enforce TISA. It reconfirmed that intent when, in 2001, it rebuffed legislation to reinstate civil liability suits against noncompliant banks. When the legislative history shows that legislators expressly considered and rejected specific legislation, we need not speculate about legislative intent. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88-89.) Only federal authorities have standing to enforce bank compliance with TISA. Allowing private plaintiffs to recover on a UCL claim based solely on TISA violations would constitute an “end run” around the limits on enforcement set by Congress. (Gunther v. Capital One, N.A., supra, 703 F.Supp.2d at pp. 270-271.)
Slip op. at 9-10. The opinion's discussion of the limits on UCL "unlawful" prong claims is quite interesting. Id. at 5-8. The opinion also addresses the UCL's "unfair" prong, holding that the complaint failed to state a claim under any of the three formulations that have developed in the case law. Id. at 10-11.