Antitrust and Consumer Protection
Competition: Spring 2016, Vol 25, No. 1
Content
- 2015: a Year of Big Plaintiff Wins In Antitrust and Privacy Cases
- Big Stakes Antitrust Trials: O'Bannonvnational Collegiate Athletic Association
- California Antitrust and Unfair Competition Law Update: Procedural Law
- California Antitrust and Unfair Competition Law Update: Substantive Law
- Chair's Column
- Considerations, Not Limitations: An Argument Against Defining the Anticompetitive Harm Under F. T.C. Vactavis As the "Elimination of the Risk of Potential Competition"
- Editor's Note
- Ftc Data Security Enforcement: Analyzing the Past, Present, and Future
- Golden State Institute 25Th Anniversary Retrospective and Prospective Views On California Antitrust and Unfair Competition Law
- Keynote Address: a Conversation With the Honorable Tani Cantil-sakauye, Chief Justice of California
- Managing Antitrust and Complex Business Trials-a View From the Bench
- Masthead
- Royal Printing and the Ftaia
- Settlement Negotiation Tactics, Considerations and Settlement Agreement Provisions In Antitrust and Ucl Cases: a Roundtable
- The Decision of the Supreme People's Court In Qihoo Vtencent and the Rule of Law In China: Seeking Truth From Facts
- The Nexium Trial Pioneers Actavis' Activation: a Roundtable of Nexiums Counsel Reflect On Their Six-week Trial
- The Ucl-now a Money Back Guarantee?
THE UCL-NOW A MONEY BACK GUARANTEE?
By Michele Floyd1
I. INTRODUCTION
The Ninth Circuit issued its opinion in Pulaski & Middleman, LLC v. Google, Inc.2 on September 21, 2015. After adopting an expansive definition ofrestitution under the California Unfair Competition Law ("UCL"), Pulaski reversed the district court’s denial of certification on the ground that calculating restitution under the UCL posed no individualized questions. Underlying its reversal of the district court’s decision were three findings: (1) California law creates a "conclusive presumption" that a consumer is entitled to restitution once liability is established under the UCL thus making individualized proof of entitlement to restitution unnecessary; (2) the value received post-purchase is irrelevant to a restitution calculation because the proper measure is the diference between the amount the class member paid and the amount the class member would have paid had he or she known the truth; and, in any event, (3) individualized damage calculations cannot defeat certiication in the Ninth Circuit, even after Comcast Corp. v. Behrend.3
One week later, the California Court of Appeal affirmed the final judgment in In re Tobacco Cases II4 and affirmed the trial court’s refusal to award any restitution under the UCL. There, the court conirmed that UCL restitution must account for post-purchase value received, applying the definition formulated in In re Vioxx Class Cases.5 Tobacco II further entrenched the developing weight of authority holding that a full refund is not available under the UCL except in the rare circumstance where the product at issue has no intrinsic value.