October 5, 2010

UCL Practitioner analyzes California Supreme Court’s approach to restitution

For you Unfair Competition Law mavens out there, the always thought-provoking Kim Kralowec at the UCL Practitioner has a post today discussing the California Supreme Court’s approach to the nature of restitution under the UCL. She highlights Clark v. Superior Court (2010) 50 Cal.4th 605, 614-615, in which the Court recently held restitution under the UCL is designed to restore to the plaintiff that which was taken from the plaintiff, is not punitive in nature, and hence is not subject to the trebling provision of Civil Code section 3345.

Kralowec contrasts that with language in the Court’s opinion in In re Tobacco II Cases (2009) 46 Cal. 4th 298, 312, in which the Court noted, when discussing fraudulent conduct under the UCL, that the statute focuses on the defendant’s conduct rather than the plaintiff’s damages. No doubt the plaintiffs’ and defense bars will square off on this issue, but we note that, in contrast with Clark, the quoted discussion in Tobacco II was not addressing the nature of the remedies available under the UCL, but rather was dealing with the question of what conduct constitutes a UCL violation.

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