The UCL Practitioner

A cautionary tale: "Judge OKs Suit Against Firm for YouTube Video"

On Monday, the Recorder had this report on a defamation suit filed against a law firm (and one of its attorneys) based on statements they made in a YouTube video in an attempt to identify additional class representatives for a class action lawsuit they were handling.  In an order dated January 19, 2010, Judge Harold Kahn denied the defendants' anti-SLAPP motion, allowing the suit to proceed.  (Link courtesy of the Recorder.)

What may surprise some is that the law firm in question has over 100 lawyers and is best known as a defense firm. 

This is not the first time a large firm that normally represents defendants has ventured into plaintiff-side class action work.  What I would recommend to such firms, however, is that you co-counsel with experienced plaintiff-side attorneys.  I've done work on both sides, and the approach is different.  Also, most plaintiff-side lawyers are extremely careful not to say anything that might be construed as defamatory of the defendant we're investigating.  An experienced plaintiff-side firm can help you navigate the treacherous plaintiff waters.  I'd be happy to co-counsel in an appropriate case with any of my defense-side compatriots who are considering plaintiff-side work.  

Oral argument report: McAdams v. Monier, Inc.

On Monday, January 25, 2010, the Court of Appeal (Third Appellate District) in Sacramento held further oral argument in McAdams v. Monier, Inc., no. C051841, which is one of the Tobacco II "grant and hold" cases.  My post on the original McAdams opinion from 2007 (in which the Court of Appeal reversed the trial court's order denying certification of UCL and CLRA claims) is here.

Many thanks to the blog reader who attended the argument and provided the following anonymous report:

Spirited oral argument from a Panel consisting of Justices Sims, Butz and Sakauye in this case, which alleges that defendant Monier failed to disclose that its “slurry” coated cement tiles would lose their color and degrade down to bare concrete. The majority of questions came from Justice Sims, who was focused on whether subsequent purchasers of the product could be part of the class, asking about the situation where a family buys a home with the roofing tiles already installed. Justice Sims noted, they have no idea about any misrepresentations made by Monier, so could they get damages? Appellant’s counsel, after first noting that only restitution is available under the UCL, indicated that yes, those homeowners would be in the class but that restitution would only be provided once for any property and that no double recovery (i.e., for the original purchaser of the home/roofing tiles and any subsequent purchaser) would be sought.

Monier’s main argument to the panel, as in its briefs, was that post-Tobacco II, there still needed to be proof that individual class members actually received a misrepresentation as an element under the fraud prong of the UCL and Justice Sims wanted to know whether defendant is arguing that plaintiffs are not entitled to any class, or only a class of those who saw the misrepresentations. Defense counsel responded that the determination of whether a class is appropriate is one that should be made on remand, by the trail court.

On rebuttal, in response to further questions by Justice Sims about whether a class could include individuals who never received defendant’s representations and whether it is simply enough under the UCL to show a representation was misleading even if no one actually saw it, plaintiff’s counsel replied that post-Proposition 64, only the named plaintiff had to prove they received and relied on the misrepresentation. In closing, appellant’s counsel emphasized that that under both pre- and post-Tobacco II decisions courts have held that no individualized proof is necessary if a defendant’s advertisement is “likely to deceive.”

One interesting thing about this report is the fact that, apparently, none of the original three panelists is now assigned to the case.  The original opinion's author, Justice Davis, retired in early 2009.  It is unclear why the other two original justices are no longer on the panel.  In any event, it will be very interesting to see how this opinion comes out. 

I note that we still have not yet seen an opinion in the other Tobacco II "grant and hold" case, Pfizer v. Superior Court (Galfano), no. B188106, which was argued on December 7, 2009.  According to the "scheduled actions" page of the docket, the Pfizer opinion is due to be filed by March 1, 2010.

Register for CAOC's 4th Annual Class Action Seminar this Thursday

I highly recommend that all plaintiffs' attorneys register to attend CAOC's 4th Annual Class Action Seminar, which will take place this coming Thursday, January 28, from noon to 6:00 p.m. at the Sir Francis Drake Hotel in San Francisco.  Registration is $160 for CAOC or SFTLA members ($175 for non-members), and you can earn 5 hours of MCLE credit, including 1 hour of ethics credit.  Click here for more on the program, and here to register online. 

I've attended this program each year since 2007, and it is always excellent.  This year, the roster of speakers includes prominent and experienced class action practitioners, along with Alameda County Superior Court Judge Robert B. Freedman and Northern District of California Chief Magistrate Judge James Larson.  The complete program schedule is below.   I'm attending again this year and hope to see some of you there!

Program

 

Welcome And Introduction
Co-Moderator: Ingrid M. Evans • Waters Kraus & Paul
Co-Moderator: Todd Schneider • Schneider Wallace, et al.

 

Preparing Your Class Case For Trial
Niall McCarthy • Cotchett, Pitre, & McCarthy

UCL Class Actions- Certified In The Post-Prop 64 and Post-Tobacco II Era
Monique Olivier • Sturdevant Law Firm APC

Choice of Law Clauses in Class Actions: Beating Defendants’ Latest Get-Out-of-Jail-Free-Card
Leslie Bailey • Public Justice

Is it Better to File a Nationwide Class Action or State-Only Class Action?
Brian Kabateck • Kabateck Brown Kellner LLP

Absent Class Member Declarations in Certification Motions: Ethical and Strategic Issues and Pitfalls
Jon Gertler • Chavez & Gertler LLP

Question and Answer Session I

BREAK

Litigating Class Action Employment Discrimination Cases
Brad Seligman • The Impact Fund

Strategies In Banking Fraud Cases
Mike Sobol • Lieff, Cabraser, Heimann & Bernstein LLP

Trends In Claims Administration
Dan Burke • Gilardi & Co LLC

The Importance Of Class Actions In American Jurisprudence – Perspectives From The Bench
Hon. Robert B. Freedman • Alameda County Superior Court, Complex Division
Chief Magistrate, Hon. James Larson • US District Court, Northern District of California

Question And Answer Session II

Judges Welcome Reception

Supreme Court extends time to grant or deny review in Cohen v. DirecTV

Yesterday, the Supreme Court gave itself an extension of time through March 1, 2010 to grant or deny review in Cohen v. DirecTV, no. S177734. 

See this blog post for copies of the petition for review,  depublication requests, and oppositions to depublication.  My original post on the Court of Appeal's opinion in Cohen is available here.

New UCL class certification decision: Steroid Hormone Product Cases

Another case interpreting Tobacco II has been handed down, and this one, like Weinstat a couple of weeks ago, refutes the Cohen court's interpretation.

In Steroid Hormone Product Cases, ___ Cal.App.4th ___ (Jan. 21, 2010), the Court of Appeal (Second Appellate District, Division Four) reversed an order denying class certification of UCL and CLRA claims.  The case alleged that the defendant (GNC) sold nutritional supplements containing a controlled substance that was illegal to sell or possess without a prescription, and that the defendant failed to disclose to consumers that its product contained this illegal ingredient.  Slip op. at 3-4.  The plaintiff class consisted of all those who purchased the supplements.  See id., passim.

The trial court denied class certification "on the ground that, with regard to both the UCL claim and the CLRA claim, an individualized inquiry would have to be conducted into whether the illegality of androstenediol products was material to each purchaser, to determine whether GNC’s alleged conduct caused injury to that purchaser." Id. at 8.

The Court of Appeal disagreed.  Under Tobacco II made clear that "the standing provision added by Proposition 64 'was not intended to have any effect at all on unnamed class members.'"  Id. at 10 (quoting Tobacco II, 46 Cal.4th at 321.)   "Therefore, while a named plaintiff in a UCL class action now must show that he or she suffered injury in fact and lost money or property as a result of the unfair competition, once the named plaintiff meets that burden, no further individualized proof of injury or causation is required to impose restitution liability against the defendant in favor of absent class members." Id. (emphasis added). 

This holding is directly contrary to Cohen.

The defendant raised the argument that the Cohen court found persuasive, namely, that Tobacco II merely addressed "standing" and was not relevant to class certification.  This panel did not read Tobacco II that way:

GNC tries to avoid the required reversal by arguing in its respondent’s brief that the trial court’s ruling does not conflict with Tobacco II because Tobacco II addressed standing, while the trial court specifically stated that standing was irrelevant to the certification analysis. Although the court did state that standing was irrelevant, it nevertheless found that Proposition 64 added actual injury as an element of a cause of action for restitution under the UCL, and therefore injury must be established for each class member. Tobacco II made clear, however, that Proposition 64 only affected the named plaintiff’s standing in a UCL class action seeking restitution; it did not add an additional element to be satisfied by all class members.

Id. at 10-11 n.8 (citing Tobacco II, 46 Cal.4th at 321) (emphasis added).  In other words, the Steroid Hormone Product Cases court recognized that because reliance and injury are not elements of a UCL claim, they are irrelevant to class certification.  The court concluded that class certification should have been granted because common questions predominated:

Martinez’s UCL claim presents two predominate issues (other than Martinez’s individual standing), both of which are common to the class: (1) whether GNC’s sale of androstenediol products was unlawful; and if so, (2) the amount of money GNC “may have . . . acquired by means of” those sales that must be restored to the class (Bus. & Prof. Code, § 17203).

Id. at 11.

As for the CLRA claim, the doctrine of presumed reliance based on the materiality of the undisclosed information warranted class certification of that claim as well:

[Plaintiff] correctly argues that he is entitled to show that GNC’s alleged deceptive conduct caused the same damage to the class by showing that the alleged misrepresentation was material, even if GNC might be able to show that some class members would have bought the products even if they had known they were unlawful to sell or possess without a prescription. [Citation.] In other words, if Martinez can show that “‘material misrepresentations were made to the class members, at least an inference of reliance [i.e., causation/injury] would arise as to the entire class.’”

Id. at 13 (citing Vasquez v. Superior Court, 4 Cal.3d 800 (1971); Massachusetts Mutual Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282 (2002)) (footnote omitted). 

The court then reaffirmed the "reasonable consumer" standard for CLRA cases, explaining:

the question that must be answered in this case is whether a reasonable person would find it important when determining whether to purchase a product that it is unlawful to sell or possess that product. It requires no stretch to conclude that the proper answer is “yes” -- we assume that a reasonable person would not knowingly commit a criminal act.

Id. at 14 (citing Civ. Code § 3548; Garnette v. Mankel, 71 Cal.App.2d 783, 787 (1945)).  Finally, the court rejected the argument that a "reasonable bodybuilder" standard should apply instead, as well as the argument that "as a rule, bodybuilders care less about legality than non-bodybuilders."  Id.  Bodybuilders as a class will no doubt appreciate the vindication. 

"Lower Courts Chip at Tobacco Ruling"

Yesterday's Daily Journal had an article (subscription) about Cohen and other post-Tobacco II decisions, including quotations from Will Stern, Trent Norris, and yours truly. 

New Ninth Circuit class action settlement opinion opinion: Narouz v. Charter Communications

The Ninth Circuit's opinion in Narouz v. Charter Communications, LLC, ___ F.3d ___ (Jan. 15, 2010), begins:

This case presents the question of whether the settlement and voluntary dismissal by a class representative of his personal claims in a putative class action lawsuit renders moot his appeal of the denial of class certification. We hold that under the circumstances of this case, the appeal is not rendered moot.

Slip op. at 1172.  The 2-1 opinion also reverses the district court's order denying certification of a settlement class and denying preliminary approval. 

"The Top 30 Blogs on Writing"

For those of us who want to improve our writing (and, among lawyers, who doesn't?), Molly DiBianca of The Delaware Employment Law Blog has compiled a list of "The Top 30 Blogs on Writing."  One of the top writing blogs is Set in Style by my friend Mister Thorne. 

Molly also has "10 of the Funniest Writing Blogs" and "20 Online Dictionaries." 

New attorneys' fees decision: Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc.

In Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc., ___ Cal.App.4th ___ (Jan. 13, 2010), the Court of Appeal (Fourth Appellate District, Division Three) held that, if the plaintiffs claim that their lawsuit was the catalyst to action by the defendant, the pre-lawsuit notification requirement applies not only when fees are sought under Code of Civil Procedure section 1021.5, as held in Graham v. DaimlerChrysler Corp., 34 Cal.4th 553 (2004), but also to fee requests under the common-law substantial benefit doctrine.  In so holding, the Court followed an earlier Court of Appeal opinion, Abouab v. City and County of San Francisco, 141 Cal.App.4th 643 (2006).

This blog's original post on Graham is here and on Abouab here.

Court of Appeal denies rehearing and modifies UCL public prosecutor opinion: Blue Cross v. Superior Court

On January 12, 2009, the Court of Appeal (Second Appellate District, Division One) issued an order modifying its opinion and denying rehearing in a UCL public prosecutor case, Blue Cross of California, Inc. v. Superior Court, ___ Cal.App.4th ___ (Dec. 15, 2009).  My post on the original opinion is available at this link. 

The modification order adds several paragraphs clarifying that the Department of Managed Health Care does not have exclusive jurisdiction to enforce the Knox-Keene Act, and that the City of Los Angeles may bring UCL claims predicated on violation of that Act. 

Oral argument scheduled in McAdams v. Monier, Inc.

The Court of Appeal for the Third Appellate District has scheduled oral argument in the McAdams case for Monday, January 25, 2010 at 2:00 p.m. in Sacramento.  McAdams v. Monier, no. C051841.  McAdams is one of the three Tobacco II "grant and hold" cases. 

Another "grant and hold" case, Pfizer v. Superior Court (Galfano), no. B188106, was argued on December 7, 2009, and we still await the Court of Appeal's opinion. 

If you are in Sacramento and would like to attend the McAdams argument on the 25th and provide a report for posting here, please let me know. 

Three recent decisions of interest

The decisions below are on my "to blog" list: 

• United Steel, Paper & Forestry, Rubber, Manufacturing Energy, Allied Industrial & Service Workers International Union, AFL-CIO, Inc. v. ConocoPhillips Co., ___ F.3d ___ (9th Cir. Jan. 6, 2010) (reversing order denying class certification of meal period claims)
  
• Rodriguez v. Hayes, ___ F.3d ___ (9th Cir. Jan. 4, 2010) (order denying panel rehearing and en banc rehearing) (amended opinion reversing order denying class certification of claims brought in habeas corpus proceeding; see this prior blog post on original Rodriguez opinion) 
  
• Cellphone Termination Fee Cases, ___ Cal.App.4th ___ (Dec. 31, 2009) (First Appellate District, Division Five) (affirming final approval of class action settlement and attorneys' fees award)

Petition for Review and other documents from Cohen v. DirecTV

Here are copies of some of the filings in Cohen v. DirecTV, no. S177734: 

• Petition for Review (11/06/09; deemed filed 12/01/09)
• Depublication Request of Initiative Legal Group (11/23/09)
• Depublication Request of Khorrami Pollard & Abir LLP (12/02/09)
• Opposition to Depublication Request (U.S. Chamber of Commerce) (12/11/09)
• Opposition to Depublication Request (Assn. of SoCal Defense Counsel) (12/14/09)
• Depublication Request of Consumer Attorneys of California (12/23/09)

I do not have a copy of the answer to the petition for review, filed on 12/01/09, and would be grateful to anyone who can forward a copy.  By my calculations, we can expect an order either granting or denying the petition for review (and the depublication requests), or extending the time to do so, by Wednesday, January 27, 2010. 

Close readers of the petition for review may observe its striking similarity to my original blog post on the Cohen decision.  They say that imitiation is the sincerest form of flattery, and one of the reasons I write this blog is to share ideas, but please, if you want to copy my language, extend me the courtesy of citing my blog as your source.  Thanks! 

New opinion interpreting Tobacco II: Weinstat v. Dentsply International, Inc.

In Weinstat v. Dentsply International, Inc., ___ Cal.App.4th ___ (Jan. 7, 2010), the Court of Appeal (Fourth First Appellate District, Division Four) reversed an order decertifying UCL and breach of warranty claims.

A group of dentists sued the manufacturer of an "ultrasonic scaler," which is a device used to clean teeth.  According to the manufacturer, the device was also safe and appropriate for use as an irrigant/coolant during oral surgery.  Slip op. at 1-3, passim.  In fact, however, the device was unsafe for surgical use because it could not be adequately sterilized.  Id. at 4. 

Initially, the trial court granted class certification of the plaintiffs' UCL and breach of warranty claims.  Id. at 5.  After the Pfizer decision was handed down in 2006, however, the defendant moved to decertify the classes.  Pfizer held -- erroneously, as it turned out -- that after Prop. 64, each class member would have to establish standing by proving that he or she individually relied on the defendant's misrepresentations.  The trial court followed Pfizer in decertifying the UCL claim, and for good measure, reconsidered the breach of warranty claim and decertified that claim as well.  Id. at 5-6.

The Court of Appeal reversed the decertification order:

Here it is abundantly clear that the trial court incorrectly believed that each class member must establish standing, thereby requiring the court to delve into individual proof of material[ity], reliance and resulting damage. Tobacco II has dispatched that reasoning and therefore reversal is appropriate.

Id. at 9. And that was essentially the end of the analysis.

Notably, unlike the court in Cohen, the Weinstat court considered it wholly unnecessary to address whether individualized reliance issues might impact the commonality element of class certification.   Instead, pursuant to Tobacco II, the court simply reversed the decertification order and remanded for redetermination of a single question:  "whether the named representatives can meet the UCL standing requirements announced in Tobacco II and if not, whether amendment should be permitted."  Id.  The Supreme Court did exactly the same thing in Tobacco II itself.  In re Tobacco II Cases, 46 Cal.4th 298, 306 (2009). 

In other words, Weinstat correctly followed Tobacco II as it was bound to do.  Cohen misinterpreted Tobacco II and reached the wrong result. 

The opinion also includes a lengthy footnote further interpreting Tobacco II and confirming that, even after Prop. 64, the substantive liability standard in a UCL "fraudulent" prong case is whether "the representations or nondisclosures in question would likely be misleading to a reasonable consumer.  The question of materiality, in turn, is whether a reasonable person would attach importance to the misrepresentation or nondisclosure in deciding how to proceed in the particular transaction -- in other words, would a reasonable dentist attach importance to Dentsply's claim that the [device] was safe for use in surgery."  Slip op. at 8 n.8 (citation omitted). 

Next, the Court of Appeal turned to the breach of warranty claim, and held that that claim should not have been decertified, either. 

As a procedural matter, the Court held that a decertification motion may be granted only upon proof of changed circumstances, such as a change in law or newly-discovered facts.  Slip op. at 11-12.  Because the defendant had presented none with respect to the warranty claim, the trial court had no power to decertify that claim:

In the case at hand, Dentsply’s motion for decertification was accompanied by changed circumstances, most notably the Pfizer decision. However, this circumstance only pertained to the UCL cause of action. Nevertheless, the trial court went on to address Dentsply’s reassertions as to why the breach of warranty class should be decertified as well. Decertifying one theory should not sanction decertifying another absent some commonality with the changed circumstance or some other situation justifying reconsideration. Here there was none.

Id. at 12. 

Then, the Court held that, "even if the trial court correctly reconsidered its certification of the breach of warranty class, its substantive decision was wrong." Id.  In an interesting and lengthy discussion, the Court determined that "reliance plays no role" in a claim for breach of express warranty.  Id. at 12-17.  And even if it did, none of the variations in the wording of defendants' misrepresentations would defeat certification.  Id. at 17-21.  "[T]he finding that the [misrepresentations] were not uniform does not imply that the variations were material to the claims ...."  Id. at 19.  On the most material question -- "biofilm infection risk" -- defendants "were silent."  Id.  (Here, the Weinstat court departs from Kaldenbach.)  And finally, the defendant's hypothetical defenses to the warranty claim (specifically, its right to present "clear affirmative proof" that the misrepresentations in question did not go "to the essence of the agreement") could not defeat the predominance finding.  Id. at 21-23.

Many thanks to everyone who wrote to alert me to this new decision. 

New decision approves contingency-fee relationships between public prosecutors and private lawyers: Priceline.com, Inc. v. City of Anaheim

I've been closely following the County of Santa Clara case now pending at the Supreme Court, which involves whether public agencies may appropriately hire private attorneys to represent them on a contingency-fee basis.  (See my public prosecutor category page for posts on the Santa Clara case.)  Yesterday, the Court of Appeal (Fourth Appellate District, Division Three) issued a new opinion holding that they may in most cases. 

In Priceline.com, Inc. v. City of Anaheim, ___ Cal.App.4th ___ (Jan. 6, 2010), the Court of Appeal closely considered the Supreme Court's Clancy decision (People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985)) (also central to the County of Santa Clara case), and approved a contingency-fee arrangement between the City of Anaheim and private lawyers in a case to recover unpaid city tax assessments. The opinion has this to say about Clancy:

First, Clancy does not bar the use of contingency fee lawyers in all civil litigation. This limitation is shown by Clancy’s: (1) concession that “[c]ertainly there are cases in which a government may hire an attorney on a contingent fee to try a civil case” (Clancy, supra, 39 Cal.3d at p. 748); (2) its statement that the duty of absolute neutrality applies only to “a class of civil actions,” not to all civil actions (ibid.); and (3) its comparison of public nuisance actions with eminent domain actions, which involve “‘“a sober inquiry into values,”’” “a balancing of interests” and “a delicate weighing of values” (id. at p. 749).

Second, even in that class of actions where Clancy otherwise applies, it does not bar contingency fee lawyers from assisting government lawyers as cocounsel. This limitation is shown by: (1) the starting point of Clancy’s analysis — the focus on a criminal prosecutor’s “considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted” (Clancy, supra, 39 Cal.3d at p. 746); (2) the reminder that the prosecutor’s discretionary functions continue past the filing decision and into the trial tactics (id. at p. 749, fn. 4); and (3) the footnote distinguishing the Sedelbauer case on the ground the “private attorney . . . appeared ‘not in place of the State’s duly authorized counsel.’” (Clancy, at p. 749, fn. 3.) When contingency fee lawyers assist government lawyers as cocounsel, the “considerable discretionary power” that Clancy seeks to protect remains vested in the government lawyers. The government lawyers check the contingency fee lawyer’s financial interests.

Slip op. at 14-15.  In other words, so long as the public prosecutors exercise appropriate discretionary and supervisory controls, the contingency-fee arrangement will be proper.  The opinion goes on to approve the specific contingency-fee relationship in the case before it (id. at 17-20), concluding:

In 24 years, no California appellate court has extended Clancy’s reach to civil actions generally — or to any action other than one for public nuisance. No sound reason exists why Clancy would bar government lawyers from receiving assistance from contingency fee lawyers as cocounsel in this case.

Id. at 20 (footnote omitted). 

The opinion concludes with an interesting "Final Thought" on some of the assumptions that may underlie arguments against participation of contingency-fee counsel in public prosecutor actions: 

Although we have shaped our analysis to conform to Clancy and the parties’ arguments, we are troubled by the notion that lawyers are more apt to treat defendants unfairly if they are paid pursuant to a contingency fee agreement, rather than an hourly fee agreement. Clancy identifies the contingency fee lawyers’ financial interest in the outcome of a case as a factor that may interfere with the duty of neutrality. But it is just as easily argued that a contingency fee lawyer is less likely to pursue meritless litigation, whereas an hourly fee lawyer may have a financial motivation to continue prosecuting litigation discovered to lack merit. In short, we question the unstated assumption upon which Clancy is based. But we are constrained to analyze this case under the rationale stated therein. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Id. at 23. 

"Class Arbitration After Gentry"

On Tuesday, December 29, 2009, the Daily Journal had a perspective article called "Class Arbitration After Gentry" (subscription).  The article, by Richard L. Kellner and Karen Liao of Kabateck Brown Kellner in Los Angeles, begins:

More than two years have passed since the California Supreme Court decided Gentry v. Superior Court, 42 Cal.4th 443 (2007), which ostensibly opened the door to arbitrations in employment class action[s]. While proponents of class action arbitration rejoiced when the Gentry opinion was issued, the floodgates of class action arbitrations never opened. In all likelihood, that is because questions remain regarding the procedures, scope and implications of class action arbitrations.

Recently received: Professional Judgment on Appeal: Bringing and Opposing Appeals

Many thanks to the folks at Carolina Academic Press for sending along a copy of the new edition of Professional Judgment on Appeal: Bringing and Opposing Appeals (2d ed. 2009) by Professor Steven Wisotsky. It looks like an interesting read. You can check out the table of contents and introduction at this link. 

New Ninth Circuit UCL decision: Birdsong v. Apple, Inc.

In Birdsong v. Apple, Inc., ___ F.3d ___ (9th Cir. Dec. 30, 2009), the Ninth Circuit held that the district court had correctly granted the defendant's motion to dismiss the plaintiffs' UCL "fraudulent" prong claim (as well as their breach of express and implied warranty claims).  The UCL claim was properly dismissed, the court held, due to lack of Prop. 64 standing.

This decision received a lot of press coverage because the product in question was the iPod.  From an article by Bob Egelko in the San Francisco Chronicle: "A federal appeals court flicked the off switch Wednesday on a lawsuit claiming Apple's iPod is defective because it lacks adequate controls against dangerous sound levels."