The UCL Practitioner
Friday, December 12, 2003
"Reasonable Consumer" Standard Applies in CLRA as Well as UCL Cases
Last week the Court of Appeal confirmed that the "reasonable consumer" standard adopted in Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 506-07 (2003) for UCL "fraudulent" prong claims applies equally to CLRA claims based on misrepresentations about the quality or characteristics of goods. The decision, Consumer Advocates v. Echostar Satellite Corp., ___ Cal.App.4th ___ (Dec. 5, 2003) went on to reject federal caselaw holding that, to prove a UCL "fraudulent" prong claim, "a plaintiff must produce consumer survey or similar extrinsic evidence to prevail on a claim that the public is likely to be misled by a representation." Instead, the Court held, "[t]he falsity of . . . advertising claims may be established by testing, scientific literature, or anecdotal evidence." This decision is noteworthy, although it is interesting to observe that the unpublished portion of Lavie described in detail the extensive consumer survey data presented by plaintiff's expert to establish the UCL "fraudulent" prong claim in that case. Nor did the court mention Brockey v. Moore, 107 Cal.App.4th 86 (2003), decided seven months ago, which already held that consumer survey evidence is unneeded to prove a "fraudulent" prong claim. The Consumer Advocates decision is accessible here. The unpublished portion of Lavie can be viewed here.
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