Responding to Business Defenses

This defense misrepresents both the advertising and the product/service delivered. Under the CLRA, liability attaches not just to explicit false statements, but to misleading representations and material omissions that create a false impression in the consumer's mind.

Specifically, your advertising stated [describe specific claims], which a reasonable consumer would interpret as [expected benefit]. However, the actual product/service [describe actual experience]. This discrepancy constitutes a violation of Civil Code § 1770(a)(5) (misrepresenting characteristics of goods/services) and § 1770(a)(9) (advertising goods with intent not to sell as advertised).

The relevant standard is how a reasonable consumer would interpret your representations, not technical accuracy in a literal sense. See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 ("The purpose of [the CLRA] is the protection of consumers from harm").

Under California consumer protection law, damages are calculated as the difference between what was paid and the actual value received—not the value you now claim the product is worth. I paid $[amount] based on your representations. Had I known the truth, I would not have purchased at all or would have paid significantly less.

The "benefit of the bargain" measure applies here: I bargained for a product with certain characteristics you represented. The product I received lacks those characteristics. Under Civil Code § 1780(a)(1), I am entitled to actual damages, which includes the price premium I paid based on your false representations.

Furthermore, under the UCL, even absent traditional damages, the court can order restitution of money "which may have been acquired by means of any act or practice" constituting unfair competition (Bus. & Prof. Code § 17203). Your argument conflates the absence of complete worthlessness with the absence of any harm.

Buried disclaimers cannot cure prominent misrepresentations. California law is clear that when advertising makes prominent false claims, fine print disclaimers are insufficient to cure the deception. See FTC v. Cyberspace.com (9th Cir. 2006) 453 F.3d 1196.

Your [advertising/website/sales pitch] prominently stated [false claim]. A reasonable consumer would rely on these prominent representations without reading every line of dense legal text. The disclaimer you cite was [buried in paragraph X of terms/in tiny print at bottom of page/only accessible by clicking multiple links].

Moreover, a disclaimer cannot retroactively undo a false statement of fact. If you state "This product does X" prominently and then disclaim it in fine print, the overall message remains deceptive. Under the CLRA, the test is whether the practice has a "tendency to deceive" a reasonable consumer—and contradictory fine print does not eliminate that tendency.

This argument improperly shifts the burden of accuracy from the seller to the consumer. Under California consumer protection law, businesses have an affirmative duty to be truthful; consumers are not required to be skeptical or to independently verify claims.

The "reasonable consumer" test does not require consumers to conduct independent research or assume that advertising might be false. As the California Supreme Court held, "California courts ... have recognized that these laws are to be liberally construed and applied to promote their underlying purposes, which are to protect consumers against fraud."

A consumer who relies on explicit representations by a seller is acting reasonably. Your claim that consumers should have independently verified your statements essentially admits that those statements were false or misleading—you cannot simultaneously stand by your statements and argue consumers should not have believed them.

The CLRA and UCL do not require privity of contract. These statutes protect consumers from unfair business practices regardless of the distribution chain.

Under CLRA § 1770, the prohibited acts apply to any transaction "intended to result or that results in the sale or lease of goods or services to any consumer." Your misleading advertising and product representations directly induced my purchase, even if I purchased through an authorized retailer or distributor.

Similarly, UCL standing requires only that a plaintiff "(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact ... and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice." Kwikset, 51 Cal.4th at 322. Your advertising caused my injury regardless of which entity processed my payment.

Your claim was not non-actionable puffery—it was a specific, verifiable statement of fact. Puffery is limited to vague, generalized claims of superiority (e.g., "best in the world," "highest quality") that no reasonable consumer would rely upon as a statement of fact.

In contrast, your statement that "[specific claim]" is a specific, measurable, and verifiable representation. A reasonable consumer would interpret this as a factual claim, not mere sales talk. Claims about specific product capabilities, features, or benefits are actionable when false.

California courts have consistently held that specific claims are not puffery. In Cook, Perkiss & Liehe v. Northern Cal. Collection Service (1911), the court distinguished between general "dealer's talk" and specific factual representations. Your statement falls into the latter category.

A belated refund offer does not retroactively cure a CLRA or UCL violation. Under CLRA § 1782(b), a defendant can only avoid damages by correcting the noticed wrongful act within 30 days of receiving a CLRA demand letter—and this requires an "appropriate correction, repair, replacement, or other remedy."

Your offer [was made more than 30 days after my demand / was only a partial refund / required waiver of claims / came with unreasonable conditions]. This does not satisfy § 1782(b)'s requirements.

Moreover, even if you provided a full refund, this does not address consequential damages, statutory damages, or the pattern of conduct affecting other consumers. Under CLRA § 1780, I am entitled to actual damages plus any additional relief the court deems proper. A refund merely returns what I paid—it does not compensate for lost time, lost opportunity, or the violation of my consumer rights.

The California CLRA and UCL are generally not preempted by federal law. California's consumer protection laws are presumed valid absent express congressional intent to preempt state regulation or an actual conflict with federal requirements.

California maintains broad authority to protect consumers from deceptive practices. The Supreme Court has noted the "presumption against preemption" in areas traditionally regulated by states, including consumer protection. See Wyeth v. Levine (2009) 555 U.S. 555.

Unless your product is specifically regulated by a federal scheme that (1) expressly preempts state consumer protection laws, or (2) makes compliance with both state and federal law impossible, California law applies. [Insert specific analysis for your product type, e.g., food labeling under FDA, automotive under NHTSA, etc.]

While arbitration clauses are generally enforceable, they may be challenged on several grounds under California law:

1. Lack of Mutual Assent: I did not knowingly agree to arbitration. The clause was [buried in lengthy terms / presented after purchase / not reasonably conspicuous]. Under California law, a party must have reasonable notice of arbitration terms.

2. Procedural Unconscionability: The arbitration clause was presented on a take-it-or-leave-it basis with no meaningful opportunity to negotiate, in fine print, and/or at a time when I had no real choice.

3. Substantive Unconscionability: The clause is one-sided, requiring me to arbitrate while preserving your right to pursue court remedies, and/or imposes prohibitive costs on consumers.

Under Armendariz and its progeny, both procedural and substantive unconscionability can render an arbitration clause unenforceable.

While AT&T Mobility v. Concepcion allows enforcement of class action waivers in many contexts, several exceptions and arguments remain:

For CLRA Claims: The CLRA expressly provides that "[a]ny waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void" (Civ. Code § 1751). This statutory non-waiver provision may provide protection against class action waivers in CLRA cases.

Effective Vindication Doctrine: If the costs of individual arbitration would exceed potential recovery, making it impossible to effectively vindicate CLRA rights, the waiver may be unenforceable.

Public Injunctive Relief: Under McGill v. Citibank, waivers of the right to seek public injunctive relief (available under both CLRA and UCL) are unenforceable in California.