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Unfair Competition Law

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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

Bus. & Prof. Code 17204 and 17207 confer standing on district attorneys to sue under the UCL for restitution and civil penalties in the name of the people of the State of California.  A district attorney may obtain all allowed forms of relief--injunction, restitution and civil penalties--statewide at least so long some of the violations occurred in the county which… Read More

Plaintiff's evidence, if believed by a fact-finder, would have supported the contention that defendant's ginkgo-infused pills had no mind-sharpening properties, contrary to defendant's advertising claims; so defendant was not entitled to summary judgment. Read More

Plaintiff’s unfair competition claim was pre-empted by FDA regulations governing how the defendant should calculate the protein content of its product, but plaintiff’s similar false advertising claim was not preempted because it accused the defendant of misrepresenting the source of the protein in the product. Read More

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