In Uber Technologies Pricing Cases, ___ Cal.App.5th ___ (Mar. 23, 2020), the Court of Appeal (First Appellate District, Division One) considered an action against Uber by "several taxi companies and taxi medallion owners" "alleging violation of the Unfair Practices Act’s (UPA) prohibition against below-cost sales (Bus & Prof. Code, § 17043) and, in turn, violation of the Unfair Competition Law (UCL) (§ 17200 et seq.)." Slip op. at 1 (footnote omitted). The trial court held that the claims fell within a statutory exception for "any service, article or product for which rates are established under the jurisdiction of the [CPUC]," even though the CPUC had not in fact stepped in and "established" any actual rates for Uber to follow. Id. at 3-4.
The Court of Appeal affirmed, in a detailed analysis of this statutory interpretation question (id. at 4-18), then disposed of the UCL claim in a footnote:
Because plaintiffs’ UCL claims were wholly derivative of their UPA claims, they were also properly dismissed. (See Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185 [When a UCL claim is derivative of other substantive causes of actions, the dismissal of the antecedent substantive causes of action necessarily means dismissal of the UCL claim.].)
Id. at 18 n.10.
I wonder how a UCL "unfair" prong claim might have fared (no pun intended). The statutory exception does not sound like a Cel-Tech safe harbor, because it does not expressly declare Uber's conduct to be lawful. Cel-Tech Communications, Inc. v. Los Angeles Cell. Tel. Co., 20 Cal.4th 163, 183-84 (1999). Nor does the safe harbor apply to regulatory actions, such as hypothetical CPUC rate setting (which had not even occurred in this case). See Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924, 940 n.5 (2004) (“our Supreme Court has held that only statutes can create a safe harbor”).
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