The UCL Practitioner

The UCL Practitioner will be migrating to a new platform

2025-09-25T13:35:50-07:00

After twenty years, my blogging platform, Typepad, announced that it is shutting down as of September 30, 2025.

I will be migrating the blog and all blog content to a new platform with the same URL (http://www.uclpractitioner.com). The blog's twenty years of archives will be preserved, but starting on September 30, 2025, the blog may be inaccessible for a few weeks. You can see that as of today, most of my sidebar content has already disappeared. Thank you for your patience and for reading all these years.

Please contact me at uclpractitioner@gmail.com with any questions and/or to be added to the blog's email list. See you on the other side.

Don't Miss the 2025 Consumer and UCL Institute, Jan. 31, 2025 in Los Angeles

2025-01-28T10:18:31-08:00

It's become a pattern for me to break out of my blogging retirement every year in January to promote the annual UCL Institute organized by the Antitrust and Unfair Competition Law Section of the California Lawyers Association (formerly of the State Bar of California). This year's Institute has an expanded focus on broader areas of consumer protection law, and it will also "feature the inaugural presentation of the Consumer and Unfair Competition Law Award, a new annual award recognizing outstanding achievement in the practice of consumer and unfair competition law."

The Institute will take place this Friday, January 31, 2025, starting at 9:00 a.m. at the City Club in Los Angeles. Thinking about Los Angeles, my heart goes out to everyone impacted by the devastating fires. The organizers of this year's Institute shared these thoughts:

We in the Section recognize that it is a difficult time in Los Angeles and so many folks have been affected by the catastrophic fires. We share our deepest concerns with those who have been impacted and offer our condolences for the lives lost and to the communities experiencing this devastation. We plan to move forward with the conference in solidarity with the LA community but are actively monitoring the situation.

In connection with the conference, we are partnering with local organizations to provide support to those in need. We will have resources and donation opportunities available at the conference itself, and a portion of the registration fee will go to support organizations providing help to those affected.

In a similar vein, the Los Angeles Tourism and Convention Board recently issued a statement encouraging groups with events scheduled to take place in Los Angeles to go ahead, noting that such groups “can best support recovery efforts by keeping their meetings & events in LA .... It has never been more important to support our City of Angels."

Click here to register for the Institute. Here's an overview of the schedule:

9:30 a.m. – 10:30 a.m. | Judges’ Panel

2024 UCL Institute this coming Thursday, January 18 in Los Angeles

2024-01-16T09:55:06-08:00

Happy 2024! It's been a while since I've done any blogging here but of course I want to encourage everyone to attend the upcoming UCL Institute, organized and sponsored by the Antitrust and Unfair Competition Law Section of the California Lawyers Association. The Institute will take place this Thursday, January 18, 2024 from 9:00 a.m. to 3:30 p.m.at the City Club Los Angeles. Click here for more information and to register. The cost is a mere $40 for Section members and $50 for non-members (lower for government, non-profit and in-house employees).

Here's the schedule. It looks really great this year:

Coffee & Registration | 9:00-9:30 a.m.

Panel 1: UCL and FTC Enforcement Priorities | 9:30-10:30 a.m.

This panel of federal, state, and local government enforcers will discuss recent enforcement activity in the unfair competition and consumer protection arena and provide insight into 2024 enforcement priorities.

Break | 10:30-10:45 a.m.

Panel 2: Privacy and the UCL | 10:45-11:45 a.m.

While privacy is now an important practice area in its own right, the unfair competition and consumer protection laws remain essential vehicles for the enforcement of individual privacy rights. Our panelists from the government and the private plaintiffs and defense bar will discuss the latest litigation trends at the intersection of privacy and unfair competition law.

Networking Lunch & Fireside Chat | 11:45 a.m.-1:15 p.m.

Sam Levine, Director of the FTC’s Bureau of Consumer Protection will share the latest from Washington on consumer protection in conversation with moderator Ted Mermin, Executive Director of Berkeley Law’s Center for Consumer Law and Economic Justice.

**Panel 3: Epic Reverberations | 1:15-1:45 p.m.**

Hear practitioners on both sides of the “v” discuss the dueling amici perspectives on appeal and how this important case will affect UCL litigation going forward.

Panel 4: Developments in Discovery | 1:45-2:15 p.m.

Daniel Garrie, a practitioner (Zeichner Ellman & Krause), neutral (JAMS), and legal engineering entrepreneur (Law & Forensics), will discuss the abuses in class discovery that have become all too common in UCL matters.

Break | 2:15-2:30 p.m.

Panel 5: Mediating UCL Cases | 2:30-3:30 p.m.

These former state and federal judges will share their experience mediating unfair competition and consumer protection cases and advise on best practices to successfully resolve thorny consumer class actions and other high stakes unfair competition matters.

UCL Institute to take place this Thursday, Jan. 12, 2023 in Los Angeles

2023-01-10T10:00:53-08:00

The first annual UCL Institute sponsored by the Antitrust and Unfair Competition Law Section of the California Lawyers Association (formerly the State Bar of California) will happen this Thursday, January 12, 2023 at 1:00 p.m. at the Omni Hotel in downtown Los Angeles. It looks like it's going to be a really great program and I'd encourage everyone to sign up and attend.

The Institute "will feature leading UCL practitioners from across the private and public sector. This multi-session conference will feature programs on government enforcement activity, recent developments in unfair competition law, and practical advice for litigating a UCL case. Following these panels, all attendees are invited to stay for an outdoor reception featuring an open bar and hors d’oeuvres."

Click here for more information and to register.

Live blog of "UCL Remedies" panel at the 2022 Golden State Institute

2022-11-10T15:03:39-08:00

Today I'm attending the 2022 Golden State Antitrust and Unfair Competition Law Institute at the Julia Morgan Ballroom in San Francisco. The 3:00 p.m. panel is entitled: "UCL Remedies: You Can't Always Get What You Want." The speakers are Andre Mura of Gibbs Law Group LLP; Zoe Savitsky of the Oakland City Attorney's Office; Steven E. Swaney of Veneable LLP; and Betsy C. Manifold of Wolf Haldenstein as moderator. This promises to be an excellent talk.

It's been a very long time since I've done a live blog, but my plan is to cite new decisions of interest mentioned by the panel that I haven't previously covered on the blog. Here we go:

New California Supreme Court opinion on civil penalties recoverable in a UCL public prosecutor action and the equitable nature of that remedy: Nationwide Biweekly Administration, Inc. v. Superior Court, 9 Cal.5th 279 (2020).
New California Supreme Court opinion on geographic scope of UCL remedies in a public prosecutor action; local prosecutors may recover statewide civil penalties as well as statewide injunctive relief: Abbott Laboratories v. Superior Court, 9 Cal.5th 642 (2020).
Johnson & Johnson public prosecutor action involving cervical mesh extensively addressed issue of how civil penalties are calculated.
Court of Appeal rejects argument that harms resulting from lost market share is recoverable as UCL restitution in a competitor action: Lee v. Luxottica Retail N. Am., Inc., 65 Cal.App.5th 793, 797 (2021).
New Ninth Circuit opinions on "adequate legal remedy" defense to UCL claims:
1. Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) (Sonner I) (action involved misrepresentations regarding a dietary supplement; UCL and CLRA claims brought; Ninth Circuit affirmed dismissal of UCL claim because CLRA provided adequate legal remedy--importantly, as a matter of federal common law under Eire)
2. Sonner v. Premier Nutrition Corp., 49 F.4th 1300 (9th Cir. 2022) (Sonner II) (same plaintiff re-filed her case in state court (Alameda County); defendant's motion to enjoin state-court proceeding was denied due to uncertainty over jurisdictional issue)
3. Guzman v. Polaris Indus., 49 F.4th 1308 (9th Cir. 2022) (decided Sept. 29, 2022) (affirmed dismissal of UCL claim with directions to dismiss without prejudice to re-filing in state court)
4. The above case summaries are by panelist Steven Swaney. My takeaway is these decisions may provide a way to avoid federal jurisdiction, allowing your UCL class action to proceed in state court. Panelist Andre Mura just pointed out that this may be a pyrrhic victory for defendants. I agree. Panelist Swaney is now pointing out that defendants should think long and hard before moving to dismiss UCL claims under Sonner.
Several new opinions on "public injunctive relief" in private UCL litigation. The issue is coming up a lot, according to panelist Mura, because it's relevant to whether the UCL claim is arbitrable under McGill (see this blog post).
1. Hodges v. Comcast Cable Communications, LLC, 21 F.4th 535, 542 (9th Cir. 2021) (held that the injunction sought was "public" rather than private)
2. Stover v. Experian Holdings, Inc., 978 F.3d 1082 (9th Cir. 2020) (addressing Article III standing)
3. Rogers v. Lyft, Inc., 452 F.Supp.3d 904, 919 (N.D. Cal. 2020) (addressing Prop. 64 standing)
4. DiCarlo v. MoneyLion, Inc., 988 F.3d 1148 (9th Cir. 2021) (construing McGill)

As you can imagine, the panel had much more to say about the new decisions, and they also provided an interesting and useful summary of each form of UCL remedy. Many thanks to the panelists for a great discussion. That's all for today's live blog.

Upcoming MCLE program: UCL Institute, Thursday, September 29, 2022 in Los Angeles (postponed)

2022-08-25T04:00:00-07:00

UPDATE 9/12/22: This event has been postponed to January 2023. The new date will be announced later in the year. UPDATE 1/10/22: The new date for this program is January 12, 2023.

I would encourage everyone to sign up and attend the first annual UCL Institute sponsored by the Antitrust and Unfair Competition Law Section of the California Lawyers Association (formerly the State Bar of California). The event will take place starting at 2:00 p.m. at the Omni Hotel in downtown Los Angeles.

Click here for more information and to register.

Supreme Court holds UCL and CLRA claims survive SLAPP challenge: Serova v. Sony Music Entertainment

2022-08-23T04:00:00-07:00

Last Thursday, August 18, 2022, the Supreme Court held that commercial sellers may not misrepresent the authorship of artistic works. Accordingly, the Court determined, the trial court had improperly granted the defendant's anti-SLAPP motion in an action involving disputed representations that Michael Jackson was the vocalist on three tracks included in a posthumously-issued album. Serova v. Sony Music Entertainment, ___ Cal.5th ___ (Aug. 18, 2022).

The unanimous opinion concludes:

Serova has sufficiently demonstrated, for purposes of the anti-SLAPP proceedings before us, that her CLRA and UCL claims related to [the album]'s packaging and promotional video have sufficient merit. Perhaps in another context the First Amendment would limit the reach of our consumer protection laws, but Sony’s album-back promise and video are commercial advertising making claims about a product, and we will not place them beyond the reach of state regulation.

Slip op. at 43. Both the San Francisco Chronicle and the Los Angeles Times covered the opinion. This blog's prior coverage of the case is here and here.

Pound Civil Justice Institute Appellate Advocacy Award, with High Distinction, for my work on Frlekin v. Apple Inc.

2022-08-16T10:47:10-07:00

I'm honored to announce that I received the 2022 Pound Civil Justice Institute Appellate Advocacy Award, with High Distinction, for my work on Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020). The award "recognizes excellence in appellate advocacy in America." The 2022 award citation says that my work in Frlekin has had and will have "a significant impact on access to justice in future civil cases." The award ceremony took place last month in Seattle in conjunction with the AAJ's annual convention. So many thanks to the members of the Pound Institute committee who selected me for the award, as well as to Kevin Green, who nominated me.

In Frlekin (discussed in this blog post), I represented a certified class of retail sales employees who worked in Apple's California stores. The employees were required to undergo onsite security searches of their bags, Apple-branded technology devices, and other personal belongings when leaving the store for lunch or at the end of the day. The California Supreme Court held that time spent waiting for and undergoing these searches was "controlled" by the employer and therefore met the definition of compensable "hours worked" within the meaning of the California Industrial Welfare Commission's Wage Orders. This central legal question was referred by the Ninth Circuit to the California Supreme Court for decision. I wrote all the appellate briefs and presented the oral argument in both the Ninth Circuit and the California Supreme Court. Summary judgment on liability was subsequently entered in favor of the certified class.

Ninth Circuit victory: Allison v. Tinder, Inc.

2021-08-18T04:00:00-07:00

I'm posting today to share some excellent news. Yesterday, the Ninth Circuit reversed final approval of a proposed class action settlement in an Unruh Act age discrimination case, holding that the district court "materially underrated the strength of the plaintiff's claims, substantially overstated the settlement's worth, and failed to take the required hard look at indicia of collusion, including a request for attorneys' fees that dwarfed the anticipated monetary payout to the class." Allison v. Tinder, Inc., ___ F.3d ___ (9th Cir. Aug. 17, 2021) (slip op. at 5-6). I represented the objectors in this case, along with my co-counsel, Al Rava of the Rava Law Firm and Danielle Leonard and Michael Rubin of Altshuler Berzon. Congratulations and thanks to all involved in achieving this excellent result.

I am particularly pleased with this outcome because the challenged settlement was formed in a federal district court case filed soon after my victory in the California Court of Appeal in Candelore v. Tinder, Inc., 19 Cal.App.5th 1138 (2018). On behalf of two proposed class members, my co-counsel and I took immediate steps to object to what we considered to be an inadequate settlement, one that in our opinion did not reflect the strength of the claims given the binding holdings in Candelore. The settlement had been negotiated without our knowledge or involvement.

The Ninth Circuit agreed that the settlement should not have been approved. Allison, slip op. at 5. The Ninth Circuit had this to say about Candelore:

In Candelore, as here, the class action plaintiff alleged that Tinder violated the Unruh Act by charging customers over 29 more than it charged younger customers for the same service. Id. at 339. While Tinder initially moved successfully to dismiss the complaint for failure to state a claim, id. at 340, on appeal, Candelore secured a ruling that his allegations did state a claim for age discrimination under the Unruh Act—and that, if his allegations were true, Tinder’s age-based distinction would not be justified by public policy as a matter of law. See id. at 350. In the course of its decision, the Candelore court “recognize[d] ... that past cases,” like Javorsky v. Western Athletic Clubs, Inc., 195 Cal. Rptr. 3d 706 (2015), “have embraced the notion that age may serve as a reasonable proxy for income in upholding age-based discounts against Unruh Act claims.” 228 Cal. Rptr. 3d at 344. But those cases, the court reasoned, are “inconsistent with the ‘individual nature’ of the right secured by the [Unruh] Act, which protects individuals from unequal treatment based on generalizations about ‘a group’ to which they belong.” Id. at 347.

Id. at 9-10. In approving the challenged settlement, the district court stated that it believed Javorsky was "'more in line with the weight of authority'" than Candelore--ignoring the fact that Candelore was, and is, binding "law of the case" in the state court action, as well as the fact that the Court of Appeal in Candelore was considering the very same age-based price differential challenged in the later-filed federal action. Id. at 11, 14-15. In the Ninth Circuit's words:

[T]he district court so underrated the strength of the plaintiff’s case, so overstated the settlement value, and so overlooked the suggestions of collusion present as to collectively constitute an abuse of discretion. [¶] First, the district court discounted the strength and value of the class members’ claims because the court “f[ound] the holding of Javorsky to be more compelling and more in line with the weight of authority than the holding in Candelore.” In so doing, the district court ignored the fact that the settlement class members are also putative members of the class in Candelore—and the settlement agreement therefore releases claims where Candelore is the law of the case, regardless of whether the district court finds the opinion persuasive.

Id. at 14-15. In other words, while the district court may not have agreed with the analysis in Candelore, that analysis is nonetheless binding, which means the Unruh Act claims are significantly more valuable than reflected by the challenged settlement. See id. This was just one of numerous problems that the Ninth Circuit identified with the challenged settlement. See id. at 15-17.

Bloomberg News reports that "Tinder's $24 Million Deal to End Age Discrimination Suit Undone."

Interesting panels during this year's virtual Golden State Institute, October 27-29, 2020

2020-10-12T04:00:00-07:00

Some interesting panels are offered during this year's Golden State Institute, which is the big annual educational event organized by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. This year's Institute will take place entirely online, on October 27-29, 2020. The cost to attend the entire Institute is only $50! Usually the fees run several hundred dollars, so this is a bargain. (A reduced price of $25 is offered for government lawyers, academics and non-practicing attorneys, and students can attend for free.)

A couple of the panels sound particularly interesting. The opening panel, "Recent Developments in Antitrust and Unfair Competition Law" (scheduled for 12:00 p.m. on October 27), is always very thorough and covers recent UCL decisions as well as antitrust cases. I'm also looking forward to the conversation with California Supreme Court Justice Joshua P. Groban, which will take place at 1:10 p.m. on October 27. Every year for some time, a different Supreme Court justice has agreed to come and talk to the Section, and this year's discussion with Justice Groban should be really great. I remember the year Justice Corrigan spoke and I learned we have something in common: we are both cat people!

You can earn up to 5 hours of MCLE credits, including an hour of bias credit if you join the "Antitrust and Social Justice" panel on October 28 at 1:00 p.m. That's $10 per credit, folks. Click here for more information and to register.

Ninth Circuit issues second opinion in Apple security search case: Frlekin v. Apple, Inc.

2020-09-03T04:00:00-07:00

As I mentioned in February, I won my second California Supreme Court case this year, when the high court ruled that time spent by my clients (Apple retail store employees) undergoing mandatory security searches is compensable "hours worked" under California law (specifically, under Wage Order 7). Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020).

In July, the Daily Journal described this victory as "one of the most significant wage and hour outcomes of 2020." "Top Labor & Employment Lawyers 2020," Daily Journal (Jul. 15, 2020). I was honored to be named to the Daily Journal's annual list of the Top Labor & Employment Lawyers in California on the strength of the Frlekin decision. I was certainly not the only attorney whose efforts contributed to this result. Lee Shalov, Kate Rogers and Brett Gallaway deserve mention here as well.

After the Supreme Court denied Apple's rehearing petition, the case went back to the Ninth Circuit, which instructed the parties to file supplemental briefs. Yesterday, the Ninth Circuit reversed the judgment in Apple's favor with directions to deny Apple's summary judgment motion and to grant plaintiffs' summary judgment motion. Frlekin v. Apple, Inc., ___ F.3d ___ (9th Cir. Sept. 2, 2020). Next, proceedings are expected to resume in the district court.

Both the Recorder and Bloomberg Law have articles on the Ninth Circuit's latest opinion. From Bloomberg Law:

The workers are pleased with the decision, which vindicates their right to be paid for the time Apple controlled them, said their attorney, Kimberly Kralowec. Next, the case will get sent back to the district court to determine how much the workers are owed, she said. Kralowec Law, P.C. and McLaughlin & Stern LLP represent the employees.

Court of Appeal addresses improper communications with putative class members: Barriga v. 99 Cents Only Stores LLC

2020-06-30T04:00:00-07:00

In Barriga v. 99 Cents Only Stores LLC, ___ Cal.App.5th ___ (Jun. 26, 2020), the Court of Appeal (Fourth Appellate District, Division Two), in a 2-1 decision, reversed an order denying class certification of certain wage and hour claims, holding that the trial court failed to apply the correct legal standard in ruling on plaintiff's motion to strike the defendant's "happy camper" declarations. Because "an ongoing business relationship between the class opponent and putative class members—especially a current employer-employee relationship—is rife for abuse and coercion," the trial court should have "carefully scrutinized" the declarations "for actual or threatened abuse." Slip op. at 4.

The opinion contains a lengthy discussion of the problems with inappropriate pre-certification communications with proposed class members and the court's power to prevent or rectify them. Id. at 28-47.

UCL's extraterritorial reach in public prosecutor actions: Abbott Labs. v. Superior Court

2020-06-26T04:00:00-07:00

Yesterday, the California Supreme Court handed down its opinion in Abbott Laboratories v. Superior Court, ___ Cal.5th ___ (Jun. 25, 2020), holding that "[t]he UCL does not preclude a district attorney, in a properly pleaded case, from including allegations of violations occurring outside as well as within the borders of his or her county." Slip op. at 1.

On the question of monetary relief in particular, the Court summarized its holding as follows:

In sum, the text of the UCL grants broad civil enforcement authority to district attorneys, and this broad grant of authority is consistent with the statute’s purpose and history. We see no indication that in an enforcement action brought by a district attorney, the Legislature intended to limit civil penalties or restitution to the geographic boundaries of the district attorney’s county.

Id. at 16. My coverage of the oral argument in this case is available here.

Supreme Court takes up UCL/anti-SLAPP case: Serova v. Sony Music Entertainment

2020-04-24T04:00:00-07:00

During this week's conference, the Supreme Court granted review in Serova v. Sony Music Entertainment, No. S260736. The statement of the issue on review has not yet been added to the main docket page, but the case involves UCL and CLRA claims based on allegedly false statements about whether Michael Jackson actually performed all the songs on an album marketed as a "Michael Jackson" album. The Court will address whether these claims can survive an anti-SLAPP attack. See this prior blog post for more on the rather lengthy procedural history of the case, which includes a prior review petition and a "grant and transfer" order.

The Court took this action after giving itself an extension of time, to May 18, to grant or deny review. With assistance from attorney David Arbogast, I filed CAOC's letter in support of review on the first day of the Bay Area's shelter-in-place orders. The petition for review, answer, and reply are also of interest. Congratulations to plaintiffs' counsel, Jeremy Bollinger and Dennis Moss, on this result, and many thanks for sharing copies of these briefs.

Supreme Court's early May oral arguments to be conducted remotely (and more screen shots from the April session)

2020-04-16T08:30:00-07:00

As anticipated, the Supreme Court's early May oral argument calendar, announced on Wednesday, will be conducted remotely. (None of the cases scheduled for argument appear to involve UCL or class action issues.)

For those interested in remote oral argument procedures, The Recorder had two relevant articles earlier this week: "How the California Supreme Court Transitioned to Remote Oral Argument in Less Than a Month" and "Arguing Cross-Country: Litigators Talk Shop About Preparing for Phone, Video Appearances." Both articles have been brought out from behind the paywall.

The latter article includes a roundup of thoughts from litigators on preparing for remote oral arguments. (For more on that subject, see these blog posts.) Attorney Jay Lefkowitz prepared for his argument in Abbott Laboratories, the first case argued under the Supreme Court's new remote argument rules, by participating in two mock argument sessions, one by phone and one by video conference. He observed that "[s]ometimes you can’t quite tell when you’re about to be interrupted by a question. The transitions in the argument are a little more challenging than if you’re in the room with someone." This would be worth practicing beforehand.

On April 8, only one case was heard. That session felt more focused to me than the proceedings on April 7, but that's probably because it was just a single case and fewer images appeared on the public video feed. Here, we see the Supreme Court tableau, along with Justices Chin, Kruger and Groban participating remotely, and the two arguing attorneys (click images to enlarge):

I liked Samuel Harbourt's setup with an actual lectern. Here, Justice Corrigan posed a question while the Chief Justice listened:

At the conclusion of the argument, the Chief Justice profusely thanked and led a round of applause for the Court's IT staff, whose efforts to prepare for the remote proceedings must have been Herculean. She also thanked the Clerk, the Judicial Council, and the "mock attorneys" who helped the Court practice the remote setup before it went live. According to The Recorder's article, the remote practice sessions took place on Friday, April 3.

The thanks and applause were well deserved all around.