finding that the remedy under Section 9 17200 includes restitution of money lost by plaintiff or gained by defendant as a result of unfair 10 competition
How later courts described this case
- finding that the remedy under Section 9 17200 includes restitution of money lost by plaintiff or gained by defendant as a result of unfair 10 competition
- explaining that “these discounts ... were frequently kept secret so that the buyer’s competitors would not demand the same treatment”
- “the language, context, purposes and history of [the statute] all point to the conclusion its protection extends to competition in the secondary line”
- “[W]e conclude that a cause of action may be pled by alleging competitive injury among buyers” as well as among sellers
Written by the judges who cited it.
The opinion
I concur in the opinion of the court prepared by Justice Werdegar. It addresses all the questions presented in this cause, and answers them correctly. Of course, issues remain for resolution in the future. On its face, or only slightly underneath, Business and Professions Code section 17045 requires unfair competition, injury to a competitor, and a tendency to destroy competition. It implicitly defines "unfair competition" as secret discrimination by a seller between or among its buyers. It similarly defines "injury to a competitor" as harm to a competitor of either the seller or a favored buyer. By contrast, it does not define a "tendency to destroy competition." Whether the phrase should be understood so as to further "[c]onsumer welfare," which is "a principal, if not the sole, goal of antitrust laws" ( Cianci v. Superior Court (1985) 40 Cal.3d 903 , 918 [ 221 Cal.Rptr. 575 , 710 P.2d 375 ]), and to prevent "output restriction," which is "one of their principal targets" ( State of California ex rel. Van de Kamp v. Texaco, Inc . (1988) 46 Cal.3d 1147 , 1183 [ 252 Cal.Rptr. 221 , 762 P.2d 385 ] (conc. and dis. opn. of Mosk, J.)) — as it apparently should be — is a question for another day. *Page 1272