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The UCL Practitioner
Monday, November 01, 2004
No on Proposition 64
For two reasons, I urge my readers to vote NO on Proposition 64.
First, Proposition 64 rests on a faulty premise. It assumes that essentially all UCL actions are "frivolous" and that existing law does nothing to prevent "frivolous" filings. The ballot argument in favor of Proposition 64 goes so far as to say that the UCL currently "allows private lawyers to file frivolous lawsuits ...." Nonsense. No law allows anyone to file frivolous lawsuits. Code of Civil Procedure section 128.7 and Business & Professions Code section 6068 specifically prohibit it. Lawyers who file frivolous lawsuits have to answer to the State Bar. They can be sanctioned. Code Civ. Proc. §128.7. Their attorneys' fees requests can be denied (as in Baxter v. Salutary Sportsclubs, Inc., ___ Cal.App.4th ___ (Sept. 28, 2004)). They can be SLAPPED with attorneys' fees awards themselves (as in Blanchard v. DIRECTV, Inc., ___ Cal.App.4th ___ (Oct. 29, 2004)). In particularly egregious cases, the Attorney General's office steps in. The AG's office just obtained a $1.8 million default judgment against one lawyer accused of frivolous UCL filings. In short, as The Trevor Law Group's downfall demonstrates, there are many effective ways to deal with lawyers who file "frivolous" cases under the UCL or otherwise. Proposition 64 is overkill.
Second, Proposition 64 would allow suits to be brought only by one who "has suffered injury in fact and has lost money or property ...." (Emphasis added.) Read the proposed language carefully. It would require "injury in fact" and loss of "money or property." That would mean that to bring a UCL case, a plaintiff would have to establish a level of injury far beyond what would be required in almost any other kind of case. As a result, Proposition 64 would curtail the enforcement of a wide variety of laws, as Attorney General Bill Lockyer, among others, has recognized. Some disagree with this assessment of Proposition 64, but that is because they accept the premise (discussed above) that no meritorious UCL case is ever filed. I believe that the UCL is often put to very good use, and that Proposition 64 would therefore weaken the enforcement of important environmental, privacy, and other laws.
Those engaged in UCL abuses get a lot of press, but they are the exception, not the rule. Most plaintiffs' lawyers approach the UCL with respect, like any other law. Proposition 64's proponents are using relatively rare examples of UCL abuse as an excuse to try to gut the entire law. A simple amendment mandating court approval of all UCL settlements would eliminate virtually all abuses cited by Proposition 64's proponents. The proposition goes far beyond what is reasonably necessary to curtail any abuse that actually exists.
I am not alone in opposing Proposition 64. The editors of all of these papers recommend a "no" vote as well:
The Sacramento Bee: "Bars private 'unfair business' lawsuits if monetary loss could not be established. Vote No."
The San Jose Mercury News: "Proposition 64 would stop the abuse. But it would do so by taking a sledgehammer to a law that ought to be fixed with a scalpel. It's the wrong solution to a real problem."
The Fresno Bee: "The state's wealthiest corporations have contributed a staggering $8.2 million to bankroll Proposition 64. They say they want to shield themselves from shakedown lawsuits, but this initiative does much more than that -- too much more. Voters should reject it -- and tell their lawmakers to come up with a more balanced way to fix the real problems with the laws."
The Pasadena Star News: "Proposition 64 uses a cannon to kill a gnat."
The San Francisco Bay Guardian: "NO, NO, NO."
The Point Reyes Light: "The Unfair Business Competition Law needs fixing, but this proposition doesn’t fix it. No on Proposition 64."
The Visalia Times-Delta: "Vote NO. In attempting to fix a problem with a law, it goes too far and limits people's ability to recover damages in court for legitimate injuries."
The following organizations also oppose Proposition 64:
Congress of California Seniors
Center for Environmental Health
California Advocates for Nursing Home Reform
Foundation for Taxpayer and Consumer Rights
Sierra Club California
California Nurses Association
American Lung Association of California
California League of Conservation Voters
Los Angeles City Council
Join The UCL Practitioner in voting No on Proposition 64.
- posted by Kim Kralowec @ 6:00 PM
It looks like the Private Attorney Generals better get their suits filed before the first of the year????Post a Comment
I assume the new law is effective Jan 1, 2005????
I assume the new law is effective Jan 1, 2005????
# posted by Anonymous : 11:55 PM