Why the Increasing Role of Public Policy in California's Unfair Competition Law Is a Slippery Step in the Wrong Direction

Authors

Joshua D. Taylor

Abstract

California's Business and Professions Code section 17200, a.k.a. "California's Unfair Competition Law," is being misapplied and abused. Specifically, members of the plaintiffs bar are beginning to regularly join a 17200 claim to any suit that is tangentially related to unfair competition. Additionally, the statute is being used by private citizens as a vehicle to assert their own policy agendas. There are several shortcoming in section 17200 that allow these abuses to occur: 1) The statute has no standing requirement-anyone may assert a suit on behalf of the general public. The plaintiff does not even have to suffer any actual injury to bring a suit. 2) The statutory language is too broad. The statute prohibits "unlawful, unfair, and fraudulent conduct." This second prong, "unfair" has been so broadly interpreted by courts that in a recent case, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., the California Supreme Court implicitly asserted that a 17200 claim could be based merely upon a policy violation. The court, however, did not specify which policy violations would suffice. The result is that private plaintiffs can bring (and in fact have brought) a 17200 claim based upon their own notions of "correct" public policy. If the California Legislature does not act to remedy the problems with section 17200, the state could witness a trend of private plaintiffs assuming a prosecutorial role-using 17200 as a means to enforce their own public policy agendas.

Recommended Citation

Joshua D. Taylor, Why the Increasing Role of Public Policy in California's Unfair Competition Law Is a Slippery Step in the Wrong Direction, 52 Hastings L.J. 1131 (2001).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol52/iss5/4