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Unfair Competition Law

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Following Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, this decision holds that it is not an unfair or unlawful business practice for a hospital not to affirmatively disclose, prior to treatment, that it will charge an emergency room charge to patients using the emergency room.  Extensive state and federal statutes and regulations require specific sorts of disclosures of… Read More

Compensation for expected but unearned future income to which the plaintiff has no legal entitlement is not recoverable as restitution under the UCL, regardless whether it is characterized as lost market share. Lost profits are damages, not restitution, and are unavailable in a private action under the UCL.  Here, the trial court properly dismissed plaintiff optometrist's UCL claim against a… Read More

The CMA sued under the UCL seeking an injunction banning Aetna's policy of discouraging its in-network doctors from referring patients to out-of-network doctors.  This decision holds that the CMA's diversion of its time and assets to help its doctor members fight Aetna's policy doesn't qualify as a loss of money or property under B&P Code 17203 and that absent a… Read More

The FTC Act does not authorize the FTC to seek monetary restitution in a suit that the FTC brings in the first instance (i.e., without a prior administrative proceeding) in federal court under section 13(b) of the FTC Act. (15 USC 53(b).)  The section expressly permits only injunctive relief in such an action.  Furthermore, allowing restitution under section 13(b) would… Read More

Ins. Code 533.5 provides that no insurer (no matter what the insurance policy says) owes any duty to indemnify or defend a suit by the Attorney General, a district attorney or city or county counsel to recover a fine, penalty or restitution for a violation of B&P Code 17200 or 17500.  This decision holds that the statute does not violate… Read More

A guide to nutritional supplements that professed to be neutral but was allegedly favorable to a competing manufacturer that paid it handsomely for high rankings was commercial speech, largely because the manufacturer's payments gave the guide an economic motivation (apart from merely selling guides) to make the speech.  The guide also made false statements insofar as it denied plaintiff's products… Read More

The Federal Food, Drug and Cosmetic Act does not preempt state law requirements for dietary supplements that do not differ from those promulgated under the FDCA. So a plaintiff can bring a UCL action against a dietary supplement supplier for failing to substantiate its advertising or labeling claim about the supplement's structure or function--except that while the FDCA and FDA… Read More

California's automatic renewal law, B&P Code 17600 et seq. requires a consumer’s affirmative consent to any subscription agreement automatically renewed for a new term when the initial term ends as well as “clear and conspicuous” disclosure of the offer terms, and an “easy-to-use mechanism for cancellation.  However, this decision holds that the law's provision that "all available civil remedies that… Read More

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