The UCL Practitioner
Wednesday, June 09, 2004
17200 and the federal courts
The Holiday Matinee case (discussed in my post immediately below) raises an interesting twist in UCL practice. If that case were re-filed in federal court, asserting the same UCL claim, the plaintiff would have to be an "affected" party with standing in the traditional, Article III sense, even though traditional standing is not required for California state court jurisdiction over UCL claims. District court judges in California routinely remand UCL claims brought in (or removed to) federal court where an unaffected plaintiff lacks Article III standing.

Since remand orders are not appealable, the Ninth Circuit has never ruled on this issue. However, a U.S. Supreme Court justice has touched on it.

Last summer, the Supreme Court dismissed the writ of certiorari in Nike, Inc. v. Kasky as improvidently granted. 123 S.Ct. 2554 (2003). In his concurrence, Justice Stevens (joined by Justice Ginsburg) explained the reasons for the dismissal, one of which was lack of standing: "Without alleging that he has any personal stake in the outcome of this case, respondent is proceeding as a private attorney general seeking to enforce two California statutes on behalf of the general public of the State of California. He has not asserted any federal claim; even if he had attempted to do so, he could not invoke the jurisdiction of a federal court because he failed to allege any injury to himself that is 'distinct and palpable.' Warth v. Seldin, 422 U. S. 490, 501 (1975). Thus, respondent does not have Article III standing. For that reason, were the federal rules of justiciability to apply in state courts, this suit would have been 'dismissed at the outset.' ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989)." Kasky, 123 S.Ct. at 2557. Justice Stevens then observed in a footnote that "[b]ecause the constraints of Article III do not apply in state courts, the California courts are free to adjudicate this case." Id. at 2557 n.2 (citing ASARCO, 490 U.S. at 617).
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