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44-430: California Civil Code § 3369, enacted in 1872, was California's early unfair competition statute. It "addressed only the availability of civil remedies for business violations in cases of penalty, forfeiture, and criminal violation." A 1933 amendment expanded the law to prohibit "any person [from] performing an act of unfair competition." This amendment did not, however, extend UCL protection to consumers. This limitation

88-650: A UCL action. In addition, any consumer could act as a representative and file a class action lawsuit against a business committing unfair competition. Proposition 64 allows only private plaintiffs who have "suffered injury in fact and lost money or property as a result of such unfair competition" may file suit, while "unaffected" plaintiffs now lack standing. Furthermore, the California Supreme Court expanded this amendment to class actions in Arias v. Superior Court by holding that "unaffected" plaintiffs no longer may bring

132-456: A class action lawsuit unless they satisfy the regular requirements laid out in Cal. Civ. Code § 382. The requirement does not apply to all class members, however; only class representatives must meet these requirements. California's UCL is broadly written. Section 17200 includes five definitions of unfair competition: (1) an unlawful business act or practice; (2) an unfair business act or practice; (3)

176-620: A company or firm. Their duty is to ascertain and settle the liabilities of a company or a firm. If there are any surplus, then those are distributed to the contributories. In English law , the term "liquidator" was first used in the Joint Stock Companies Act 1856 . Prior to that time, the equivalent role was fulfilled by "official managers" pursuant to the amendments to the Joint Stock Companies Winding-Up Act 1844 passed in 1848 - 1849. In most jurisdictions,

220-418: A fraudulent business act or practice; (4) unfair, deceptive, untrue, or misleading advertising; or (5) any act prohibited by Sections 17500-17577.5. Section 17203 allows the court to order injunctions and other equitable defenses to prevent the unfair competition. Most false advertising litigation involves definitions four and five listed above because they both specifically prohibit false advertising. To prove

264-636: A liquidator's powers are defined by statute. Certain powers are generally exercisable without the requirement of any approvals; others may require sanction, either by the court, by an extraordinary resolution (in a members' voluntary winding up) or the liquidation committee or a meeting of the company's creditors .In the United Kingdom, see sections 165-168 of the Insolvency Act 1986 The liquidator would normally require sanction to pay and to make compromises or arrangement with creditors. Without sanction ,

308-554: A loan officer's statement over the phone about interest rates was "advertising". Conversely, Bank of the West v. Superior Court implied that advertising might require "widespread promotional activities directed to the public-at-large" and that mere "personal solicitations are not advertising." To determine whether advertising is misleading, California's courts evaluate the advertisement's entire impression, including words, images, format and product packaging. Courts have held that advertising

352-527: A nuisance, various maxims of jurisprudence, and other miscellaneous provisions which relate "to the three preceding divisions." Although revolutionary for its time, the California Civil Code was actually the third successfully enacted codification of the substance of the common law. The first was the Code of Georgia of 1861 (largely based on the work of Thomas Reade Rootes Cobb independent of Field), which

396-454: A product's price or source. Plaintiffs typically simultaneously plead violations of each statute because the remedies are cumulative. For example, the CLRA provides for attorney's fees, punitive damages, and statutory damages. The UCL requires that lawsuits be brought within four years after the cause of action accrued. The UCL postpones accrual of the cause of action until the plaintiff "discovers"

440-500: A separate code, the California Code of Civil Procedure . Liquidator (law) In law , a liquidator is the officer appointed when a company goes into winding-up or liquidation who has responsibility for collecting in all of the assets under such circumstances of the company and settling all claims against the company before putting the company into dissolution . Liquidator is a person officially appointed to 'liquidate'

484-474: A violation of 17500. Section 17500 prohibits any untrue or misleading statements made in connection with the sale of goods or services, which is narrower standard than section 17200. For example, section 17500 only concerns advertising of property or services while section 17200 has no such limitation. Section 17500 only prohibits advertising, but section 17200 also forbids "fraudulent business acts or practices" unconnected with advertising. Another major distinction

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528-434: A violation under the fourth definition of unfair competition, the plaintiff must show that (1) the defendant engaged in unfair, deceptive, untrue or misleading advertising and (2) the plaintiff suffered injury in fact and lost money or property. California courts have interpreted "advertising" to include almost any statement made in connection with the sale of goods or services. For example, Chern v. Bank of America held that

572-423: Is "cause shown" by the applicant for his removal. It is not normally necessary to demonstrate personal misconduct or unfitness for this purpose. However, it will be enough if the liquidator fails to display sufficient vigour in the discharge of his duties, for instance, by not establishing the current assets and recent trading of the company or in not attempting to secure favourable terms for the company in relation to

616-457: Is appointed to wind-up a failing business should act with professional efficiency and not exercise the sort of complacency that might have caused the business to decline in the first place. Where, during the investigation of the affairs of the company, the liquidator uncovers wrongdoing on the part of the management of the company, he may have power to bring proceedings for wrongful trading or, in extreme cases, for fraudulent trading . However,

660-402: Is effectively four-years." Judges can use their equitable powers to dismiss a UCL claim or deny injunctive relief . For example, in competitor-vs.-competitor lawsuits, the defendant may assert unclean hands if it believes the plaintiff has engaged in serious misconduct that relates to the subject of relief being sought. In other words, a "plaintiff must not behave inequitably with respect to

704-419: Is issued pursuant to section 17200, penalties of up to $ 6,000 per day for intentional violations are authorized. Restitution and disgorgement of profits are used primarily to deter future violations. Courts use various factors to determine the amount of the penalty, including "the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which

748-459: Is misleading if "members of the public are likely to be deceived." However, because of Proposition 64, the plaintiff now has to show that they were actually misled by the advertising and suffered an injury as a result. To further complicate matters, the courts are split on whether "omissions of material facts" that mislead or confuse the public violate the UCL. To prove a violation under the fifth definition,

792-406: Is that section 17500 requires that the advertiser knew or should have known that the advertising was false or misleading. Section 17200 is a strict liability statute that has no such requirement. In addition, section 17500 carries criminal penalties, whereas only civil remedies are available for section 17200 violations. Plaintiffs suing under Sections 17200 or 17500 often also assert violations of

836-400: Is the ancestor of today's Official Code of Georgia Annotated . Then Dakota Territory beat California to the punch by becoming the first jurisdiction to enact Field's civil code in 1866. David Dudley Field II's audacity in trying to codify all of the general principles of the common law (including the law of property, domestic relations, contracts, and torts) into general statutory law in

880-524: The California Consumers Legal Remedies Act (CLRA), set forth in Cal. Civ. Code § 1750 et seq . The CLRA protects consumers against 23 specific activities that it defines as unfair and deceptive business practices. Many of those activities are also prohibited by section 17500 and Cal. Civ. Code §1770 . For example, it is unlawful under both statutes to advertise goods with the intent not to sell them as advertised or to misrepresent

924-474: The State of California . The code is made up of statutes which govern the general obligations and rights of persons within the jurisdiction of California. It was based on a civil code originally prepared by David Dudley Field II in 1865 for the state of New York (but which was never enacted in that state). It is one of the 29 California Codes and was among the first four enacted in 1872. The Field civil code

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968-534: The mailbox rule that communication of acceptance is effective when dropped in the mail, which is a feature unique to the common law. The Code was first adopted in 1872 by the California State Legislature and was signed into law by then Governor Newton Booth . The Code enacted in 1872 was essentially the Field civil code of 1865, "with some changes to adapt it to previous California legislation". It

1012-709: The California Codes (including the Civil Code) as "perfect in their analysis, admirable in their arrangement, and furnishing a complete code of laws", while English jurist Sir Frederick Pollock attacked the Civil Code as "about the worst piece of codification ever produced" and called it "the New York abortion" (since it was never enacted in that state). Over the years, the Civil Code has been repeatedly amended by legislation and initiative measures. A very significant change to

1056-555: The Civil Code occurred in June 1992 when nearly all of the Civil Code's provisions relating to marriage , community property , and other family law matters were removed from the Civil Code (at the suggestion of the California Law Revision Commission ) and re-enacted in the form of a new Family Code. The California Family Code went into effect on January 1, 1994. Most statutes that deal with civil procedure are codified in

1100-482: The company for any purpose he thinks fit. In a creditor's voluntary winding-up, he must report to the creditor's meeting on the exercise of his powers. The liquidator is generally obliged to make returns and accounts, owes fiduciary duties to the company and should investigate the causes of the company's failure and the conduct of its managers, in the wider public interest of action being taken against those engaged in commercially culpable conduct. A liquidator who

1144-424: The company in the time immediately preceding the company going into liquidation where he forms the view that they constitute an unfair preference or a transaction at an undervalue . Depending upon the type of the liquidation, the liquidator may be removed by the court, by a general meeting of the members or by a general meeting of the creditors. The court may also remove a liquidator and appoint another if there

1188-447: The flexibility and richness of the common law. Only California, North Dakota, South Dakota, and Montana enacted virtually all of Field's civil code, while Idaho partially enacted the contract sections but omitted the tort sections. Later, Guam borrowed much of the California Civil Code for its own legal system. Justice Stephen Field (who was David Field's brother and was largely responsible for introducing his work to California), praised

1232-501: The form of a civil code was extremely controversial in the American legal community, both in his time and ever since. Most U.S. states (as well as most other common law jurisdictions) declined to pursue such an aggressive codification. The Restatements of the Law were developed in the 20th century as a compromise between those who felt the common law was a disorganized mess and those who valued

1276-607: The higher prices on around one-third of the items compared to other Circuit City stores remaining open. Additionally, liquidators refuse to accept returns, so if a customer does find he or she has been overcharged, there is no apparent recourse. This is used by most advertisers trying to prove the acceptability of their products. Most plaintiffs allege violations of section 17200 and 17500 concurrently, and courts often do not distinguish between these definitions of unfair competition, despite important differences between these two sections. A violation of section 17200 may not always trigger

1320-734: The legislature moved the UCL to the California Business and Professions Code § 17200. In 2004, California voters enacted Proposition 64 , which limited UCL standing to individuals who suffered financial/property loss because of an unfair business practice. The UCL confers standing on both private parties and public prosecutors. Section 17204 authorizes the Attorney General, district attorneys, county counsels and city attorneys to file lawsuits on behalf of injured citizens. Prior to Proposition 64, any consumer, regardless of whether they were adversely affected by unfair business acts, could bring

1364-425: The liquidator cannot normally enter into a champertous agreement to assign the fruits of an action to a third party offering to finance the litigation, if the right to said action accrued solely as a result of the liquidator's statutory duties, instead of being a right to action that had existed before the liquidator came on the scene. The liquidator may also seek to set aside transactions which were entered into by

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1408-454: The liquidator is doubling the price (quadrupling it for a 75%-off price), and then "discounting" it from there. Also common is for the sale prices at a retail chain 's other stores to be lower than the liquidator's prices at the closing stores. Both of these were proven to be the case in November 2008, with the same liquidator (Hilco) committing both offenses: the markups at Linens 'n Things , and

1452-408: The liquidator may carry on legal proceedings and carry on the business of the company so far as may be necessary for a beneficial winding-up. Without sanction, the liquidator may sell company property, claim against insolvent contributories, raise money on the security of company assets, and do all such things as may be necessary for the winding-up and distribution of assets. In compulsory liquidation,

1496-484: The liquidator must assume control of all property to which the company appears to be entitled. The exercise of their powers is subject to the supervision of the court. They may be compelled to call a meeting of creditors or contributories when requested to do so by those holding above the statutory minimum. In a voluntary winding-up, the liquidator may exercise the court's power of settling a list of contributories and of making calls, and he may summon general meetings of

1540-412: The misconduct occurred, the willfulness of the defendant's misconduct, and the defendant's assets, liabilities, and net worth. Civil penalties, up to $ 2,500 for each violation, are allowed when a lawsuit is brought by an authorized government agency. However, the UCL does not permit punitive damages awards. California Civil Code The Civil Code of California is a collection of statutes for

1584-486: The opportunity to sue under the UCL. The Supreme Court of California clarified the statute in American Philatelic Soc. v. Claibourne , stating that "the rules of unfair competition" should protect the public from "fraud and deceit". In 1962, a California appellate court reiterated this rule by stating that the UCL extended "equitable relief to situations beyond the scope of purely business competition." In 1977,

1628-447: The plaintiff must show that section 17500 was violated. This "sweep up" provision ensures that any acts mentioned in section 17500 also violate section 17200 and that the plaintiff receives remedies under both statutes. In many cases, liquidators which are hired to sell merchandise from a closing store will actually raise the prices on items that were already marked-down on clearance . For items already marked-down to 50% off, this means

1672-426: The problem. Section 17500 does not have an express statute of limitations . Thus, California Code of Civil Procedure section 338(h), which specifies a three-year limitation, ordinarily should apply to section 17500. However, as section 17500 is cross referenced in section 17200, and as virtually all false advertising claims are litigated simultaneously with UCL claims, the limitations period for "false advertising claims

1716-468: The rights being asserted in the case." Because the UCL is a strict liability statute, other equitable defenses such as "good faith, mistake of law and lack of wrongful intent are generally inapplicable [to] a UCL action." The UCL allows the court to prevent the use of unfair competition and to restore money or property to victims of unfair competition. Essentially, this provision allows for restitution and injunctive relief where necessary. When an injunction

1760-495: The substance of the Field civil code was "overwhelmingly, if not exclusively, that of the common and statutory law of New York in the 1860s". In that aspect, it was "by no means revolutionary but rather conservative". For example, as enacted in California, the Civil Code contains a definition of consideration , a principle in the common law of contracts which has no direct equivalent in civil law systems. Similarly, it codifies

1804-486: The three preceding divisions." Division One contains laws which govern personal rights while Division Two contains laws which govern property rights. Division Three codifies the substantive contract law of the State of California as well as various regulations relating to agency, mortgages, unsecured loans, extensions of credit, and other areas of California law. Division Four defines remedies available in lawsuits, what constitutes

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1848-540: Was "thoroughly civilian in its approach and arrangement". Like the French Civil Code of 1804 and the Louisiana Civil Code of 1825, it featured the "standard tripartite Gaius system". The code also followed the civilian tradition of systematically classifying subject matter into "categories of decreasing generality, constantly proceeding from the general to the specific". However, as completed in 1865,

1892-596: Was in response to the U.S. Supreme Court's 1931 decision in FTC v. Raladam . In Raladam , the Court held that a FTC Act Section 5 violation must show actual injury to competition. This ruling prevented individual consumers from suing under the FTC Act. Following this rationale, California applied the UCL to unfair business practices that affected business competitors, not consumers. In 1935, consumers, not just business competitors, were given

1936-572: Was soon discovered that many more provisions of the new Civil Code conflicted with existing California statutes and case law. In 1873, Stephen J. Field , Jackson Temple , and John W. Dwinelle were appointed to a Board of Code Examiners to investigate such issues. In 1874, the legislature adopted the board's proposed amendments to the Code. The Civil Code is divided – like its civil law analogues – into four divisions: "the first relating to persons"; "the second to property"; "the third to obligations"; "the fourth contains general provisions relating to

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