UCL Class Actions Just Got Tougher to Plead

California's Unfair Competition Law, Bus. and Prof. Code section 17200, gets used against employers in wage and hour and other cases. Sometimes, plaintiffs try to use the UCL to extend the statute of limitations, because the UCL's statute of limitations is four years.

The voters of California pared back the UCL in November 2004 with the passage of Proposition 64. Among the initiative's most important components - a requirement that a plaintiff have "standing" - actual injury in fact - in order to assert the claim.

In this non-employment law case, Pfizer v. Superior Court, a plaintiff tried a UCL class action alleging that Pfizer falsely advertised Listerine as a substitute for dental floss. The plaintiff tried to define the class as anyone who bought Listerine during the class period.

The Court of Appeal held that Prop. 64 requires each member of a purported class to have suffered actual injury. Thus, it is not enough that a class member merely purchased Listerine during the class period.

This case will help employment practitioners in cases where the plaintiff cannot say that each putative class member actually suffered injury as a result of a practice. Thus, for example, in an overtime case, the employer can argue a UCL claim should not include class members who did not actually work overtime because those putative class members did not suffer "actual injury" as a result of alleged mis-classification.