The UCL Practitioner

Two upcoming SF events of interest

Two interesting programs will take place in San Francisco this coming week:

• The Northern California Courts Media Conference will take place on Wednesday, November 4, 2009, 1:00-5:00 p.m., in the Arizona Room at the federal courthouse in San Francisco.  This year's conference is entitled "New Media in the Courtroom: How Blogs, Twitter and Social Media are Changing Legal Reporting," and is sponsored by U.S. District Court for the Northern District of California and the U.S. Ninth Circuit Public Information and Community Outreach Committee. The speakers include Judges Illston and Fogel, and the panels will address new media coverage of the courts, including coverage by bloggers. Registration is free, and the program will be followed by a reception in the lawyers' lounge on the 18th floor. I've registered to attend and will do so if my schedule permits. Laptops are allowed and wifi access will be provided, so I may live-blog the event if I attend.  [Thanks to Professor Goldman for alerting me to this event.]

• On Thursday, November 5, 2009, 8:30-11:00 a.m., there will be a Recorder Roundtable called Outstanding Motions Work: Best Practices as Seen From the Bench.  This event will take place at the Commonwealth Club in San Francisco.  The four panelists are Hon. Bernard Zimmerman, U.S. District Court for the Northern District of California; Hon. Charlotte Woolard, S.F. Superior Court; Hon. Ronni MacLaren, Alameda County Superior Court; Hon. David Garcia, S.F. Superior Court (retired). This sounds like a great program. It costs $95 and provides two hours of MCLE credit. 

Ninth Circuit strikes down another no-class-action arbitration clause: Laster v. AT&T Mobility LLC

In Laster v. AT&T Mobility LLC, ___ F.3d ___ (9th Cir. Oct. 27, 2009), the Ninth Circuit struck down yet another no-class-action arbitration clause.  The Court also held that the Federal Arbitration Act does not preempt California unconscionability law. 

Another new opinion interpreting Tobacco II: Cohen v. DIRECTV, Inc.

Another opinion interpreting Tobacco II has been published this week:  Cohen v. DIRECTV, Inc., ___ Cal.App.4th ___ (Sept. 28,2009; pub. ord. Oct. 28, 2009).   Those of you who attended the Consumer Attorneys of San Diego Class Action Symposium last week may remember that my co-panelist, Ray Bertrand, presciently mentioned this (then-unpublished) opinion during our segment.

In Cohen, the Court of Appeal (Second Appellate District, Division Eight) affirmed the trial court's denial of class certification of CLRA and UCL claims.  In so doing, the Court misinterpreted Tobacco II. 

The case alleged that DIRECTV advertised its HD satellite television service "without the intent to provide the customers" with the advertised levels of resolution, and "that DIRECTV switched its HDTV channels to a lower 'resolution,' reducing the quality of the television images it transmits to its subscribers."  Slip op. at 3.  The trial court denied certification of both the CLRA and the UCL claims because (among other reasons) it determined that actual reliance was an element of both claims.  Id. at 7. 

As for the UCL claim, the trial court held (in November 2007):

Prior to Prop 64 the standard for fraud was "likely to be deceived." However since Prop 64, amendments require the plaintiff to have suffered injury in fact and lost money or property.  A conclusion may be drawn that class members must have actu[a]lly been deceived. 

Id. (alteration in original; emphasis added).  This, of course, is precisely the opposite of the Supreme Court's holding in Tobacco II.  Yet, in Cohen, the Court of Appeal held that the trial court "did not apply an improper criterion in addressing the class certification issue."  Slip op. at 16.  That holding is, respectfully, wrong.

This is how the Court of Appeal described Tobacco II in Cohen:

... Tobacco II held that, for purposes of standing in context of the class certification issue in a “false advertising” case involving the UCL, the class members need not be assessed for the element of reliance. Or, in other words, class certification may not be defeated on the ground of lack of standing upon a showing that class members did not rely on false advertising. In short, Tobacco II essentially ruled that, for purposes of standing, as long as a single plaintiff is able to establish that he or she relied on a defendant’s false advertising, a multitude of class members will also have standing, regardless of whether any of those class members have in any way relied upon the defendant’s allegedly improper conduct.

Slip op. at 15 (italics  in original; bold added).  

That is not what Tobacco II held.  As you may remember, both the trial court and the intermediate appellate court in Tobacco II had held that, "post Proposition 64, individual issues of exposure to the allegedly deceptive statements and reliance upon them, predominated over class issues." Tobacco II, 46 Cal.4th at 311 (describing lower courts' holding).  In Tobacco II, class certification was not denied "on the ground of lack of standing," but rather because common questions would not predominate on the issue of reliance.  That is the ruling Tobacco II expressly reversed.   Tobacco II goes far beyond standing (as will be discussed in more detail below).

Nor did Tobacco II hold that if the class representative has standing, "a multitude of class members will also have standing."  Slip op. at 15.  On the contrary, Tobacco II holds that "standing requirements are applicable only to the class representatives, and not all absent class members." 46 Cal.4th at 306 (emphasis added).  In other words, the class representative's standing does not confer standing on the unnamed class members; rather, the unnamed class members need not meet the standing requirements at all:  "[A]ccepted principles of class action procedure ... treat the issue of standing as referring only to the class representative and not the absent class members.” Id. at 321.

Cohen also held that the UCL does not "authorize an award for injunctive relief and/or restitution on behalf of a consumer who was never exposed in any way to an allegedly wrongful business practice."  Slip op. at 14.  The Supreme Court held the opposite in Tobacco II:

[Business and Professions Code section 17204], construed in light of the “concern that wrongdoers not retain the benefits of their misconduct” (Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d 442, 452, 153 Cal.Rptr. 28, 591 P.2d 51) has led courts repeatedly and consistently to hold that relief under the UCL is available without individualized proof of deception, reliance and injury. (E.g., Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545; Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211, 197 Cal.Rptr. 783, 673 P.2d 660.)

Tobacco II, 46 Cal.4th at 321 (emphasis added). 

Let me repeat that for emphasis.  Under the UCL, "relief" may be ordered "without individualized proof of deception, reliance and injury."  Id. (emphasis added). 

The reason for this is simple.  Actual deception, reliance and injury are not elements of a UCL claim.  Id.; see also id. at 312 (UCL "fraudulent" prong claim requires proof only that “members of the public are likely to be deceived"); Morgan v. AT&T Wireless Services, Inc., 177 Cal.App.4th 1235, 1253 (2009) ("[P]re-Proposition 64 caselaw that describes the kinds of conduct outlawed under the UCL is applicable to post-Proposition 64 cases such as the present case. The only difference is that, after Proposition 64, plaintiffs (but not absent class members in a class action) must establish that they meet the Proposition 64 standing requirements." (citing Tobacco II)).

Contrary to the Cohen court's perception, Tobacco II addresses far more than just standing.  The Supreme Court held that the standing requirement ("suffered injury in fact and lost money or property as a result of") could not be imposed on unnamed class members because doing so would serve to change these long-established elements of a UCL claim -- something the Court had previously held, in Mervyn's, Prop. 64 did not do:

[T]o hold that the absent class members on whose behalf a private UCL action is prosecuted must show on an individualized basis that they have “lost money or property as a result of the unfair competition” (§ 17204) would conflict with the language in section 17203 authorizing broader relief -- the “may have been acquired” language -- and implicitly overrule a fundamental holding in our previous decisions, including Fletcher, Bank of the West and Committee on Children's Television.

Had this been the intention of the drafters of Proposition 64 -- to limit the availability of class actions under the UCL only to those absent class members who met Proposition 64's standing requirements -- presumably they would have amended section 17203 to reflect this intention. Plainly, they did not.

.... 

[It] would undermine the guarantee made by Proposition 64's proponents that the initiative would not undermine the efficacy of the UCL as a means of protecting consumer rights, because requiring all unnamed members of a class action to individually establish standing would effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights.

Tobacco II, 46 Cal.4th at 320, 321.  

The Cohen opinion expresses the view that UCL claims are incompatible with class certification principles unless each class member proves reliance and injury:

[W]e find Tobacco II to be irrelevant because the issue of "standing" simply is not the same thing as the issue of "commonality." .... We see no language in Tobacco II which suggests to us that the Supreme Court intended our state's trial court's to dispatch with an examination of commonality when addressing a motion for class certification.

Slip op. at 15-16. Cohen overlooks the fact that Tobacco II necessarily addressed not only standing, but also commonality, because in Tobacco II, the Supreme Court expresssly reinstated an order granting class certification of a UCL "fraudulent" prong claim. The Supreme Court did not direct lower courts to dispense with commonality when analyzing class certification; but what it did do is direct lower courts to assess commonality in light of the actual elements of the claim ("likely to deceive" consumers) rather than non-existent ones (actual reliance and injury). 

For a case in which the court employed precisely that approach to commonality, and found the element satisfied, see Plascencia v. Lending 1st Mortgage, ___ F.R.D. ___, 2009 WL 2569732 (N.D. Cal. Aug. 21, 2009) (discussed in this blog post.)   Even the Court of Appeal in Kaldenbach (published on Monday) employed that approach. 

The Cohen opinion concludes:

In short, ... factual questions associated with [unnamed class members'] reliance on DIRECTV’s alleged false representations was a proper criterion for the court’s consideration when examining “commonality” in the context of the subscribers’ motion for class certification, even after Tobacco II.

Slip op. at 16 (emphasis added). This holding takes us back to pre-Mervyn's and pre-Tobacco II days, when lower courts had (erroneously) held that Prop. 64 changed the UCL's substantive elements by importing a "reliance" requirement. The Supreme Court held in no uncertain terms that Prop. 64 "was not intended to have any effect on absent class members.” Tobacco II, 46 Cal. 4th at 319 (emphasis added). If Cohen stands, the effect will be major and substantive.  

As defendants like to point out, the class action statute is a procedural device that is not to be employed to alter the underlying claim's substantive elements.  See, e.g., Tobacco II, 46 Cal.4th at 312 (citing City of San Jose v. Superior Court, 12 Cal.3d 447, 462 (1974) ("Class actions are provided only as a means to enforce substantive law.")).  The Cohen opinion uses the class action device to impose a "reliance" element that the Supreme Court has (twice) held Prop. 64 did not impose and is not part of the UCL.  The opinion should either be depublished or taken up for review. 

Two more articles on In re Tobacco II

The September/October 2009 issue of Forum, the magazine of Consumer Attorneys of California, has an article by yours truly, "UCL Class Actions After In re Tobacco II."  The article will soon be availble online to CAOC members. 

The September 17, 2009 issue of Mealey's Class Action Litigation Reporter has an article, "The Scope of Class Restitution in the Wake of In Re Tobacco II Cases," by Matt Bailey of Khorrami Pollard & Abir in Los Angeles.  Matt is the author of a new blog, the Bailey Class Action Daily (which features posts almost daily).   

New Court of Appeal opinion interpreting Tobacco II: Kaldenbach v. Mutual of Omaha Life Ins. Co.

In an opinion published yesterday, the Court of Appeal (Fourth Appellate District, Division Three) affirmed an order denying class certification of UCL (and other) claims based on alleged misrepresentations about "so-called 'vanishing premium'" life insurance policies. Kaldenbach v. Mutual of Omaha Life Ins. Co., ___ Cal.App.4th ___ (Sept. 30, 2009; pub. & mod. ord. Oct. 26, 2009).

The opinion acknowledges that Tobacco II preserved the pre-Prop. 64 "likely to deceive" formulation of the UCL's "fraudulent" prong, and that Tobacco II confirms that "UCL relief is available on a class basis 'without individualized proof of deception, reliance and injury.'"  See, e.g., slip op. at 19-20, 22 (quoting Tobacco II).  A sentence added to the opinion in the "Order Modifying Opinion and Directing Publication" reads: "The Supreme Court ... conclud[ed] individualized proof of injury to absent class members in a UCL action was not required."  Slip op. at 26 (citing Tobacco II, 46 Cal.4th at 320, 324).

Nonetheless, class certification was correctly denied, the Court held, because the "individualized issues [that the trial court found] go not to the injury suffered by a purchaser, but to whether there was in fact an unfair business practice by [defendant]."  Slip op. at 21.  In particular, the trial court properly credited the defendant's evidence that its insurance policies were sold by myriad independent contractor sales agents, none of whom received the same training or were required to use any particular sales materials or adhere to any script.  Id. at 9-12, 18-19.  Therefore, whether the agents' representations were misleading, or even "likely to deceive," could not be resolved through common proof.  See id., passim.   

The Court of Appeal distinguished Tobacco II and Massachusetts Mutual Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282 (2002), on the basis that in those cases, "there was no issue about defendants' uniform business practices giving rise to the UCL claim."  Slip op. at 22.  In other words, "separate from whether any individual purchaser relied on alleged misrepresentations, or suffered injury as a result, here the determination of what business practices were allegedly unfair turns on individual issues."  Id. at 23. 

Plaintiff also sought class certification of a common-law fraud claim.  The Court of Appeal held that the trial court correctly declined to infer classwide reliance under Vasquez because, again, "the evidence indicates there were not common representations or omissions."  Id. at 24. 

The Complex Litigator also has a post on Kaldenbach. 

New UCL "unlawful" prong decision: Pineda v. Williams-Sonoma Stores, Inc.

In Pineda v. Williams-Sonoma Stores, Inc., ___ Cal.App.4th ___ (Oct. 8, 2009; pub. ord. Oct. 23, 2009), the plaintiff raised a UCL "unlawful" prong claim, but later "conceded" the defendant's demurrer based on lack of standing.  UCL standing therefore was not an issue on appeal. 

The remainder of the case was for alleged violation of Civil Code section 1747.08(a)(2), which prohibits merchants who accept credit cards from requesting and recording "personal identifying information" about the cardholder (in this case, her zip code) and invasion of privacy. The Court of Appeal (Fourth Appellate District, Division Two) affirmed the judgment following the trial court's order sustaining the defendant's demurrer to those claims.  

"Court Applies Tobacco II: Prop 64 Changed Standing Requirements, Not Substantive Law"

The October 9, 2009 issue of the BNA Class Action Litigation Report features an article on Morgan v. AT&T Wireless Services, Inc., ___ Cal.App.4th ___, 2009 WL 3019780 (Sept. 23, 2009), in which the Court of Appeal applied Tobacco II in a published opinion.  (For a discussion of Morgan, see this blog post.)

BNA kindly granted permission to Scott Leviant to post the full text of the article on his blog, The Complex Litigator.  Both Scott and I are quoted in the article. 

Register at half price for the CASD Class Action Symposium, San Diego

I've just been told that it's now possible to register for a single day of the two-day Consumer Attorneys of San Diego Class Action Symposium (Oct. 23-24, 2009) for half price, which will include admission to the judges' reception on the bay Friday night.  If you can only attend one day, that's a great deal.  

Reminder: two MCLE events this week

Two great programs will be taking place this week, one in San Francisco and the other in San Diego: 

• On Thursday, October 22, the State Bar's Antitrust and Unfair Competition Law Section will present its 19th Annual Golden State Antitrust and Unfair Competition Law Institute and Antitrust Lawyer of the Year Award Dinner at the Westin St. Francis in San Francisco.  This day-long program features morning plenary sessions of interest to practitioners in both areas, and afternoon breakout sessions focusing in on antitrust and UCL issues.  The luncheon speaker will be Richard A. Feinstein, Director of the Federal Trade Commission's Bureau on Competition.   The program offers 6.57 hours of MCLE credit. 
  
• On Friday and Saturday, October 23-24, Consumer Attorneys of San Diego will present its 2nd Annual Class Action Symposium at the Westin Gaslamp Quarter in San Diego.  This two-day program will feature panels on cutting-edge issues relating to class action practice and procedure.  Speakers include both plaintiff and defense attorneys as well as judges and academics.  On Friday night, there will be a judges' reception on a yacht on the bay.   The program offers 11.5 hours of MCLE credit (including 1 hour of ethics credit).

I will be attending both of these events as a speaker and hope to see you there. 

At the San Diego class action program, my co-speakers are Miles E. Locker of Locker Folberg LLP and Raymond W. Bertrand of Paul Hastings.  Our presentation is called "Class Certification: Future Trends and Hot Cases,"  and will have a slight emphasis on employment-related class actions.  Brinker and Dukes v. Wal-Mart, for example, are both on our agenda.

At the State Bar program, my co-speakers will be Los Angeles County Superior Court Judge Carl West and William L. Stern of M0rrison & Foerster (author of the Rutter Group practice guide on 17200).  Our panel moderator will be Daveed A. Schwartz of Bullivant Houser Bailey.  We will be discussing the Tobacco II decision.  If our prep calls are any indicator, this should be a very lively discussion. 

ABA Class Action Institute Oct. 30 in San Francisco and Nov. 20 in D.C.

The ABA's 13th Annual National Institute on Class Actions will take place on Friday, October 30, 2009 at the InterContinental Hotel in San Francisco and will repeat on November 20, 2009 at the Willerd InterContinental in D.C.  Here is the program description:

Each session of the National Institute on Class Actions will begin with a presentation by Professor John C. Coffee on new developments in class action litigation. The agenda also features programs that will examine issues concerning arbitration and class action waivers, recent developments in the standards for certifying a class, and advice for both plaintiffs and defense counsel on settling class actions. The session in San Francisco will include a program on the class action landscape in California courts, while the Washington, DC session will feature a roundtable discussion on current issues in class actions with three federal judges moderated by Professor Arthur R. Miller.

Speakers include Jocelyn Larkin of the Impact Fund; Bonny Sweeny of Coughlin Stoia; Elizabeth Cabraser of Lieff Cabraser; Mark Chavez of Chavez & Gertler; and many others on both sides of the "v."  Registration costs $500 for ABA members. 

More material from Yabsley v. Cingular Wireless

A reader posted a comment asking whether I could put up additional material from Yabsley v. Cingular Wireless, no. S716146, in which a petition for review was filed on September 29, 2009.  Here's what I have: 

• Depublication Request of The Kick Law Firm (filed 09/09/09) (initial case event)
• Depublication Request of Consumer Attorneys of California (filed 09/14/09)
• Opposition of the California State Board of Equalization to both Depublication Requests (filed 09/18/09)
• Opposition of AT&T Mobility LLC fka Cingular Wireless LLC to CAOC's Depublication Request (filed 09/24/09)

See these two blog posts for more on Yabsley.  If anyone has copies of additional documents, such as the petition for review or the opposition filed by the Association of Southern California Defense Counsel, please forward.

New class settlement objector opinion: Cho v. Seagate Technology Holdings, Inc.

In Cho v. Seagate Technology Holdings, Inc., 177 Cal.App.4th 734 (Sept. 15, 2009) (which was handed down while I was away on vacation), the Court of Appeal overruled objections to a classwide settlement, but reversed the final judgment and remanded for notice to be re-given with an amended class definition.  This was necessary so that people could more precisely determine whether or not they were members of the settlement class:

A class definition that is ambiguous presents a problem of class ascertainability that “ ‘goes to the heart of the question of class certification, which requires a class definition that is “precise, objective and presently ascertainable.” ’ ” (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858.) In the absence of an ascertainable class, “ ‘it is not possible to give adequate notice to class members or to determine after the litigation has concluded who is barred from relitigating.’ ” (Ibid.) The goal in defining the class is to use terminology that will convey sufficient meaning to enable persons hearing it to determine whether they are members of the class plaintiff wishes to represent.

....  the error we identify arises from the ambiguity in the class notice because it creates a real possibility that indirect purchasers who erroneously conclude they are not members of the plaintiff class may never be heard from and the judgment will be res judicata on their claims. (See Global Minerals & Metals Corp. v. Superior Court, supra, 113 Cal.App.4th at p. 858; Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 914.)

....

We vacate the orders of the trial court and remand for further proceedings to correct the class definition to unambiguously state that indirect purchasers of new Seagate disc drives are members of the plaintiff class and to renotice the settlement in order to give adequate notice to all class members, and allow for additional claims, objections or opt outs.

Slip op. at 12, 13, 15-16 (emphasis added).   Scott Leviant has a more detailed discussion of Cho at The Complex Litigator.

"The Clash Over Class Actions"

Today's Daily Journal has an article, "The Clash Over Class Actions" (subscription) about class certification issues raised in various cases pending in the Ninth Circuit and federal district courts within the Ninth Circuit. 

While there are a few interesting cases pending in the Ninth Circuit, such as the Dukes case, I think the article is a bit overblown. 

"This Oracle May be Prophetic"

The October 2009 issue of California Lawyer has an interesting article on Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009), in which the California Supreme Court has accepted certified questions relating to the UCL.  See Sullivan v. Oracle, no. S170577 .   An excerpt from the article (by Pamela A. MacLean):

When both sides filed petitions for rehearing, however, the Ninth Circuit backpedaled. In February it withdrew its opinion in Sullivan II [Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)] and certified three questions to the California Supreme Court. First, does state overtime law apply to out-of-state residents who work for a California company inside the state? Second, if state law does apply, can plaintiffs make a section 17200 claim? And third, if a California employer sets policies that violate the FLSA for its out-of-state workers, does a section 17200 claim apply to the federal violation for those employees no matter where they work? (See Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009).)

Lawyers on both sides of the issue say the most significant question is whether section 17200 applies to employees hired by California companies but who work in other states. If the answer is yes, "There could even suddenly be a private right of action under the [federal] prevailing wage statute," says Michael J. Walsh, an employment law specialist with Walsh & Walsh in Irvine who represents employees. Currently, he adds, only the Department of Labor can sue to recover under the prevailing wage provisions of the Davis-Bacon Act, which sets minimum wages on federal projects.

Michael Walsh, of course, is the author of the top California wage and hour blog, Wage Law.

New summary judgment procedure decision: Nazir v. United Airlines, Inc.

This post is slightly off-topic, but the opinion is remarkable and all litigators should read it. In Nazir v. United Airlines, Inc., ___ Cal.App.4th ___ (Oct. 9, 2009), the Court of Appeal (First Appellate District, Division Two) reversed an order granting "what may well be the most oppressive [summary judgment] motion ever presented to a superior court," involving "a record the likes of which we have never seen." Slip op. at 1, 3.

This morning's Recorder has an article by Mike McKee on the opinion (subscription), which begins:

It isn't a good sign when an appeal court refers to a lower court's "ruling" in quote marks as if it's not worthy of the term.

But that's exactly what San Francisco's First District Court of Appeal did — three times — Friday in reversing a "ruling" by San Mateo County Superior Court Judge Marie Weiner in an overpapered case featuring 5,415 pages of briefs.

It's true the panel critized the judge's "ruling," but its criticism of the defendant's briefing — which noted major procedural and substantive defects — was much harsher.

Bloggiversary

I can hardly believe that so much time has passed.  I created The UCL Practitioner six years ago today (on October 8, 2003).

LACBA program: Thanks for coming!

Thanks to all who attended the LACBA program on Tobacco II yesterday!  I thought the discussion was very interesting and that we could have gone on talking for at least another hour.  Gail always comes up with the best defenses and Judge McCoy's questions were pointed and thought-provoking.  Thanks again to the organizers for inviting me to speak, and special thanks to John L. for the lift to the airport. 

I'll be speaking again at the State Bar's annual UCL and antitrust program in San Francisco later in the month (on Oct. 22), along with Judge Carl West, Will Stern, and Daveed Schwartz.  If you register for that event there will be a whole day's worth of great panels!

Some thoughts on Morgan v. AT&T Wireless

I've had a chance to more closely review Morgan v. AT&T Wireless Services, Inc., ___ Cal. 4th ___, 2009 WL 3019780 (Sept. 23, 2009) (a case we'll be discussing during today's Los Angeles County Bar Association program), and it is definitely significant.  It's the first Court of Appeal opinion to substantively interpret Tobacco II.   

The Morgan court confired Tobacco II’s holding (and, for that matter, the Mervyn's holding) that Proposition 64 did not alter the UCL’s substantive liability standards, and that pre-Proposition 64 precedents (including those establishing the “likely to deceive” standard for “fraudulent” prong claims) continue to govern:

Thus, pre-Proposition 64 caselaw that describes the kinds of conduct outlawed under the UCL is applicable to post-Proposition 64 cases such as the present case. The only difference is that, after Proposition 64, plaintiffs (but not absent class members in a class action) must establish that they meet the Proposition 64 standing requirements.

…. As noted above, a fraudulent business practice is one that is likely to deceive consumers. A UCL claim based on the fraudulent prong can be based on representations that deceive because they are untrue, but also those which may be accurate on some level, but will nonetheless tend to mislead or deceive ....  A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable under the UCL.

Morgan, 2009 WL 3019780, *11-*12 (citing Tobacco II, 46 Cal. 4th at 312, 320; Pastoria v. Nationwide Ins., 112 Cal.App.4th 1490 (2003)) (emphasis added; internal quotation marks omitted).

The Court of Appeal discussed the facts necessary to establish a UCL “fraudulent” prong violation in a section entirely separate from its discussion of the facts necessary to prove the class representative’s standing. See id. at *11-*14 (Part B.1 (discussing liability); Part B.2 (discussing standing)).

Like Tobacco and Mervyn's, what Morgan teaches is that the elements of a UCL claim have not changed.  For purposes of liability at trial, the question (in a "fraudulent" prong case) is whether the defendant's conduct was "likely to deceive" consumers.  This should greatly simplify the class certification analysis in most cases, as it did in Plascencia. 

Review granted in UCL remedies case: Clark v. Superior Court (Nat'l Western Life Ins.)

Many thanks to the blog reader who pointed out that on September 9, 2009, the Supreme Court granted review in Clark v. Superior Court (National Western Life Ins. Co.), no. S174229.  This is the issue on review:

Is Civil Code section 3345, which permits an enhanced award of up to three times the amount of a fine, civil penalty, or "any other remedy the purpose or effect of which is to punish or deter" in actions brought by or on behalf of senior citizens or disabled persons seeking to "redress unfair or deceptive acts or practices or unfair methods of competition," applicable in an action brought by senior citizens seeking restitution under the Unfair Competition Law (Bus. & Prof. Code, section 17200 et seq.)?

(Emphasis added.)  The Court of Appeal's opinion is Clark v. Superior Court (Nat'l Western Life Ins. Co.), ___ Cal.App.4th ___ (May 21, 2009), and my original blog post on it is here.   

This case has been added to my list of pending Supreme Court cases raising issues related to the UCL, the CLRA and class action practice.  I've also updated that list to fix all the broken links that resulted when the Supreme Court revamped its website a few months ago. 

Petition for review and depublication requests filed in Yabsley v. Cingular Wireless

A petition for review, along with more than one depublication request, has been filed in Yabsley v. Cingular Wireless, no. S716146.  Here is the depublication request I filed on behalf of CAOC on September 14, 2009.  It basically makes the same points as in my original blog post on the decision. 

Yabsley was handed down on August 19, 2009 and became final on or about September 18, 2009.  The petition for review was due ten days thereafter and was filed on September 29, 2009 (and deemed timely per Rule of Court 8.25(b)(3)). 

I thought about writing directly to the Court of Appeal and suggesting some (non-outcome-determinative) modifications to the opinion, but the last time I tried that, which was in the Crab Addison case, the panel refused to accept my letter for filing, evidently believing they had no authority to consider it. Therefore, the only other option was a depublication request (which I had no interest in filing in Crab Addison). 

I have, however, seen that approach work in the past.  For example, the Supreme Court accepted a post-opinion letter from a non-party in the Vasquez attorneys' fees case, which resulted in an important (but non-outcome-determinative) amendment to the opinion on the Court's own motion.   I've also seen the same thing in the Court of Appeal in the past.  I think the Crab Addison court could have accepted the letter based on Vasquez as a precedent.