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.
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
Available at: https://repository.uchastings.edu/hastings_law_journal/vol52/iss5/4