Class Action

"Cutting Class"

By Kimberly A. Kralowec

Yesterday's Daily Journal had a Focus column (subscription) on the Prop. 64-related cases now pending before the Supreme Court: 

Big business interests are now attempting to convert a shield, which protects against extortionate lawsuits, into a sword to eliminate valid ones. To do so, they seek to expand Proposition 64 to make it a tool to suppress valid consumer class actions brought under the Unfair Competition Law and False Advertising Law. They contend that Proposition 64 bars these class actions unless all potential class members show reliance on the deceptive act at issue. Consumer lawyers counter that only the named plaintiffs (the class representatives) need to do this.

The lower courts are divided, which has led to a high-stakes showdown soon to be decided by the state Supreme Court.

The article goes on to summarize the many reasons why the Supreme Court should continue to permit a classwide presumption of reliance under Vasquez.  The article discusses the facts of two of the "grant and hold" cases, Pfizer v. Superior Court (Galfano), no. S145775, and McAdams v. Monier, no. S154088, but not the lead case, In re Tobacco II Cases, no. S147345.

This reminded me of an article in the September 2008 issue of Los Angeles Lawyer, which had what can only be described as a gross error (since corrected in the online version).  The article cited the Tobacco preemption decision (In re Tobacco II Cases, 41 Cal.4th 1257 (2007)), but completely overlooked the fact that an entirely separate case of the same name remains pending before the Supreme Court.  (Thanks to Lisa Perrochet for bringing this article, and its error, to my attention.) 

No activity has occurred in In re Tobacco since August, when Justice Kennard was appointed Acting Chief Justice for the case, in place of Chief Justice George, who has been recused.  The briefing was completed in December 2007. 

Full post as published by The UCL Practitioner on November 18, 2008 (boomark / email).