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Friday, January 11, 2008


Andrew Sussman

On January 17, 2008, the Supreme Court denied review in the Buckland v. Threshold case. So, from now on if Ms. Buckland wants to be a UCL or CLRA plaintiff, she'll actually have to buy the complained-of products in actual reliance on their advertisements.

But what are the odds that any presumably sophisticated lawyer like her -- with all the objective skepticism the term implies -- ever would be deemed to have actually relied on any advertisement for any product?

Kimberly A. Kralowec

Although Ms. Buckland does appear to be an attorney, that fact is not mentioned anywhere in the opinion and was not the basis for the Court's decision. I don't think it's fair to say that no lawyer can ever have a UCL or CLRA claim. I actually think that's kind of silly. The UCL and CLRA both impose a "reasonable consumer" standard for deception, and while actual reliance may be required for standing purposes, certainly lawyers are capable of being deceived by actual misrepresentations or omissions of material facts that only the defendant knows.

Andrew Sussman

It's somewhat less "silly" when one considers that the Buckland case involved literally dozens of products and defendants -- something that may not have been apparent from the opinion but which I know to be true because I represented one of the many defendants. Even if the plaintiff had not admitted in declaration that she had purchased that very large number of products for the purpose of obtaining standing to sue, contrary testimony would not have been credible.

Further, in light of Proposition 64's Article III "injury in fact" and causation requirements for standing, one has to question whether the "reasonable person" standard for assessing an advertisement's actionability now has anything to do with assessing standing to sue.

Kimberly A. Kralowec

I didn't say the "reasonable consumer" standard had anything to do with standing. I said it is the standard for deception under the UCL, which remains true after Prop. 64. "The measure left entirely unchanged the substantive rules governing business and competitive conduct." Californians for Disability Rights v. Mervyn's, LLC, 39 Cal.4th 223, 232 (2006).

You obviously have interesting information about this case to which the rest of the world isn't privy, but remember that future litigants and courts will intepret and apply Buckland based solely on the facts as summarized in the opinion. They will have nothing else to go on.

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