No matter how much $500 per hour verbiage I read, I still can't see how Prop. 64 is retroactive under the law. Especially the argument about it "not affecting substantive rights" is thoroughly question begging.* That means, in logical terms that you assume the truth of the conclusion to prove the question.
If you agree that the non-harmed Plaintiff did not have a substantive right under the UCL, then clearly, no rights were affected. But to believe that, you have to accept that contention. I disagree, and I don't think it's much of a matter of opinion.
Before Prop. 64 I personally possessed the right to enforce laws under the UCL. Now I do not. End of question.
If you live in a defense-bar echo chamber (which I try to avoid being in) then, sure, those people never had real "rights" anyway, so of course nothing is affected. I could speculate that this stems largely from these BigLaw power lawyers farming this research out to junior associates who have Article III standing fresh on the brain and can't grasp the fact that it doesn't apply in California.
But you have to beg the question of there being no right to make this argument work. That's not to say that plenty of results oriented judges out there won't disagree, but this is more a matter of logic than of fact. It's a shitty argument and they should be embarrassed making it.
I'll continue to review the other arguments. E-mail me if you think you can win me over.
(Editorial Note: Once again, I am not making any comment on the propriety of the UCL or Prop. 64)
P.S. Snaps and props to The UCL Practitioner for being more than on top of this from day one. What an excellent resource!
* Smile. This may be the only time this year you read this term in its correct definition and not as sloppy shorthand for "poses the question" or "leads one to ask."
