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California's Unfair Competition Law and Consumers Legal Remedies February 2021 California’s Unfair Competition Law and Consumers Legal Remedies Act 2021 Annual Overview New York Los Angeles Washington, D.C. Miami Copyright ©2021 All Rights Reserved ST ROOCK’S FINANCIAL SERVICES LITIGATION, REGULATION AND ENFORCEMENT GROUP Stroock is nationally recognized as a leader in the representation of companies in the full range of compliance, regulatory and litigation matters. We have achieved prominence in the defense and settlement of the consumer class actions routinely brought against financial services companies. Over the years, our litigators have defended and settled, including through innovative settlement structures, hundreds of actions addressing a wide range of class action-related issues. We have argued three times to the California Supreme Court on issues of critical concern in connection with the defense of class actions—Washington Mutual Bank v. Superior Court (Briseno), Discover Bank v. Superior Court (Boehr) and McGill v. Citibank—and routinely appear before federal and state appellate courts around the country. Our clients include, among others, commercial and consumer banks, residential lenders, student lending companies, automobile finance companies, credit card issuers, payment processors, investment banks, e-commerce companies, telecommunications companies and insurance companies. We have litigated virtually all aspects of the financial services business, including matters regarding lending and servicing, retail banking, unfair practices, insolvency and federal and state regulatory compliance. Our group has extensive experience also in representing financial institutions, and their officers, directors, and employees, in administrative and judicial enforcement actions brought by the various state and federal financial institutions’ regulatory agencies, including state Attorneys General, the Department of Justice, the Bureau of Consumer Financial Protection, the Federal Reserve Board, the Financial Industry Regulatory Authority, the Federal Deposit Insurance Corporation (“FDIC”), the Federal Trade Commission (“FTC”), the Office of the Comptroller of the Currency (“OCC”) and the U.S. Securities and Exchange Commission. Drawing on our unique resources, we have played a central role in numerous multi-state regulatory investigations. Based on this extensive experience, we offer a broad base of specialized knowledge regarding the legal and business issues faced by our clients, as well as the ability and commitment to handle matters efficiently and in a results-oriented fashion. i OVERVIEW OF DEVELOPMENTS1 In California, plaintiffs’ lawyers and state and local prosecutors wield two powerful tools: the Unfair Competition Law, California Business and Professions Code sections 17200–17209 (“UCL”), and the Consumers Legal Remedies Act, California Civil Code sections 1750–1784 (“CLRA”). The UCL forbids “unlawful, unfair or fraudulent” conduct in connection with virtually any type of business activity.2 With its sweeping liability standards and broad equitable remedies, the UCL is often the weapon of choice for plaintiffs’ lawyers and almost uniformly invoked by prosecutors in consumer cases. The CLRA is more defined in structure, but no less potent. The CLRA applies to any “consumer” transaction involving the “sale or lease of goods or services”3 and authorizes recovery of actual, statutory and punitive damages. 4 The CLRA, which explicitly prohibits twenty-four separate business acts and practices, provides for streamlined class certification and dispositive motion proceedings. Decisions from California and federal courts in 2020 provided important direction under the UCL and CLRA in the areas of arbitration, federal court jurisdiction, the authority of public prosecutors, federal preemption, pleading requirements and the basis for plaintiffs’ recovery of attorneys’ fees. First, the California Supreme Court’s 2017 decision in McGill v. Citibank, N.A. 5 c ontinues to have a significant impact in UCL cases, by providing a vehicle for plaintiffs to seek to av oid individual arbitration by alleging claims for so-called “public injunctive relief.” In McGill, the California Supreme Court held that an arbitration agreement is invalid to the extent it forbids a consumer from seeking public injunctive relief under the UCL in any forum. In 2020, the U.S. Supreme Court denied certiorari in two cases where defendants unsuccessfully argued that the Federal Arbitration Act6 preempted McGill. Thus, in the Ninth Circuit the controlling precedent remains Blair v. Rent-A-Center, 7 which held that the McGill rule applies in federal cases involving UCL claims. Significant litigation, with mixed outcomes, has resulted and is continuing (indeed, gaining in velocity) over what constitutes “public” injunctive relief subject to the McGill rule. 8 Second, potential limitations on federal court jurisdiction remain important to the defense of UCL litigation in federal court. The Ninth Circuit has made clear that a UCL plaintiff may not 1 The research in this Overview is current through January 25, 2021. The purpose of the Overview is to provide information and perspective. We sometimes reference unpublished and/or noncitable opinions to demonstrate reasoning, illustrate trends, etc. The authors thank Stroock associates Phillip Kim, Ry an Nelson, Daniel Shannon and paralegal Sonia Hall for their invaluable assistance with this y ear’s Overview. 2 Cal. Bus. & Prof. Code § 1 7 200. The UCL also ex pressly prohibits “unfair, deceptive, untrue or misleading advertising” and incorporates California’s False Advertising Law, Cal. Bus. & Prof. Code § 17 500 et seq. (“FAL”). See id. Because the standards for liability under the UCL and FAL are similar, and the remedies are co-extensive, claims under the FAL are typically pleaded as UCL c laims. 3 Cal. Civ . Code §§ 1770(a) (stating prohibited practices), 1761 (definitions). 4 See Cal. Civ. Code § 17 80(a). 5 2 Cal. 5th 945 (2017). 6 9 U.S.C. § 1 et seq. 7 928 F.3d 819 (9th Cir. 2019). 8 Compare Meija v. DACM Inc., 54 Cal. A pp. 5th 691 (2020) (relief sought against a small motorcycle dealership considered “public” based on allegation that dealership was advertising to the public at large), with Torrecillas v. Fitness Int’l, LLC, 52 Cal. App. 5th 485 (2020) (relief sought on behalf of employees of a single workplace not sufficiently “public” to avoid arbitration clause). ii avoid compliance with standing requirements merely by pleading a claim for “public injunctive relief.”9 Similarly, despite the broad remedial provisions set forth in the UCL, federal courts still apply their traditional rule of refusing equitable relief, including restitution, unless the plaintiff establishes that he or she lacks an adequate remedy at law. 10 Third, the power of local prosecutors to pursue UCL cases statewide was confirmed by the California Supreme Court in 2020. The California Supreme Court additionally held that courts have broad discretion in setting civil penalty amounts (of up to $2,500 per violation by statute), and that defendants may not insist that a jury set the penalty.11 Further, local prosecutors may seek civil penalties based on the defendant’s statewide conduct, and not simply based on conduct within the particular county or city within the prosecutor’s jurisdiction. 12 A local prosecutor may even obtain a preliminary injunction without evidence of any specific harm to any particular individual within the jurisdiction. 13 Fourth, the scope of federal preemption of UCL and CLRA claims remains hotly litigated, with outcomes depending on the details of the claim as well as of the supposedly preempting statute.14 Additionally, a split within the California Courts of Appeal has recently developed with respect to what deference to give Federal Trade Commission guidance.15 Fifth, pleading requirements were mostly loosened.16 However, some limits were imposed on cases challenging statements that are technically true but potentially misleading. 17 Sixth, in CLRA cases, recovery of attorneys’ fees by prevailing plaintiffs has potentially become easier based on a recent decision confirming use of the “catalyst” theory of recovery in California. 18 Looking ahead, there are two cases of interest already pending before the California Supreme Court. Others may follow. First, an important ruling may issue on commercial speech and First Amendment limitations on UCL cases. Serova v. Sony Music 9 Stover v . Ex perian Holdings, 978 F.3d 1082 (9th Cir. 2020). 10 Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020). 11 Nationwide Biweekly Admin, Inc. v. Superior Court, 9 Cal. 5th 279 (2020). 12 Abbott Labs. v . Superior Court, 9 Cal. 5th 642 (2020). 13 Peo ple ex rel. Gascon v. Ho meAdvisor, Inc., 49 Cal. App. 5th 1073 (2020). 14 See Kro essler v. CV S Health Co rp., 977 F.3d 803 (9th Cir. 2 020) (discussing scope of preemption under federal laws governing sales of nutritional products); Uber Techs. Pricing Cases, 46 Cal. App. 5 th 963 (2 020) (state regulatory scheme impliedly preempts UCL claim). 15 Compare Spikener v. A lly Financial, Inc., 50 Cal. App. 5th 151 (2020) (Federal Trade Commission rule preempts CLRA fee-shifting rule), review denied (Oct. 14, 2020), with Pulliam v. HNL Auto. Inc., No. B293435, 2021 WL 302885 (Cal. Ct. App. Jan. 29, 2021) (holding that the FTC’s comments on the Holder Rule are not binding and do not preempt CLRA fee-shifting). 16 See Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1019-20 (9th Cir. 2020) (relieving plaintiff from Rule 9(b) pleading standard based on allegation that defendant had greater understanding of the underlying facts); Alborzi v. Univ. of S. Cal., 55 Cal. App. 5th 155 (2020) (“Particularized fact pleading is not required for a UCL claim.”); see also Walker v. Life Ins. Co., 953 F.3d 624, 634 (9th Cir. 2020) (encouraging district courts to proactively correct legal errors in class definitions). 17 Shaeffer v. Califia Farms, LLC, 44 Cal. App. 5th 1125, 1139 (2020). 18 Skinner v . Ken’s Foods, Inc., 53 Cal. App. 5th 938 (2020). iii Entertainment involves music attributed to Michael Jackson but first released after his death.19 After the music was released, news reports suggested that the music was not authentic.
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