The Supreme Court's April oral argument calendar, announced last week, includes a full slate of cases. In other words, the Court will conduct business as usual—except that the arguments will take place in San Francisco (not Los Angeles, as previously planned), and the parties' counsel will participate remotely. The arguments will be live-streamed as usual, so we can observe them from the comfort of our homes while "sheltering in place." (As for filing deadlines, on Friday, the Court extended most of them by 30 days.)
One case set for argument involves the UCL. On Tuesday, April 7, 2020 at 9:00 a.m., the Court will hear Abbott Laboratories v. Superior Court (Rackauckas), no. S249895, which presents the following question (according to the Court's online docket):
Does a district attorney have the authority to recover restitution and civil penalties under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) for violations occurring outside his or her territorial jurisdiction?
On a 2-1 vote, the Court of Appeal (First Appellate District, Division One) said no. From the introduction:
The California Constitution designates the Attorney General the “chief law officer of the State” (Cal. Const., art. V, § 13), and consistent with this constitutional provision, the Attorney General “has charge, as attorney, of all legal matters in which the State is interested” (Gov. Code, § 12511) and also “shall ... prosecute or defend all causes to which the State ... is a party in his or her official capacity.” (Gov. Code, § 12512.) The District Attorney, on the other hand, is a county officer whose territorial jurisdiction and power is limited accordingly. Though section 17204 confers standing on district attorneys to sue in the name of the people of the State of California, it cannot constitutionally or reasonably be interpreted to grant the District Attorney power to seek and recover restitution and civil penalty relief for violations occurring outside the jurisdiction of the county in which he or she was elected. A contrary conclusion would permit the District Attorney to usurp the Attorney General's statewide authority and impermissibly bind other district attorneys, precluding them from pursuing their own relief. Thus, in the absence of written consent by the Attorney General and other county district attorneys, the District Attorney must confine such monetary recovery to violations occurring within the county he serves.
Abbott Labs. v. Superior Court, 25 Cal.App.5th 1, 9 (2018).
Justice Dato, dissenting, explained, first of all, that the "proper time" to determine the scope of any monetary or injunctive relief would be after liability has first been determined. Id. at 33. He further explained:
The UCL is an exceedingly broad remedial statute designed to encourage multiple avenues of enforcement. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949-950.) Indeed, a district attorney can prosecute a UCL claim based even on alleged violations of a statute that provides a different government agency with the sole authority to bring enforcement actions. (People v. McKale (1979) 25 Cal.3d 626, 632-633.) And as the majority recognize, “[t]he civil remedies of the [UCL] were enacted because criminal remedies were too often inadequate to protect the public, especially where corporate defendants were concerned.” (People v. E.W.A.P. Inc. (1980) 106 Cal.App.3d 315, 321.) Pursuing litigation against corporate defendants is expensive, and the Legislature was doubtless aware that both financial and political considerations may sometimes discourage a public prosecutor from undertaking such a case. Consistent with the UCL's broad remedial purposes and the perceived need for vigorous enforcement, there is nothing unconstitutional about the Legislature's decision to permit and encourage multiple public prosecutors with overlapping lines of authority on the theory that more enforcement in this context is better than less.
Id. at 35; see also In re Facebook, Inc., Consumer Privacy User Profile Litig., 354 F.Supp.2d 1133 (N.D. Cal. 2019) ("the majority opinion in Abbott Labs., which strained to narrow California's plain statutory language, is likely wrong").
As of this writing, the Supreme Court has not yet posted copies of the briefs online, but when that happens, the briefs will be available here.
[Hat tip to At the Lectern, which is doing a good job tracking all the Supreme Court's orders dealing with the COVID-19 crisis.]
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