The Court of Appeal (First Appellate District, Division Five) recently scheduled Dunham v. Memberworks, Inc., no. A107261, for oral argument on November 17, 2005 at 11:00 a.m. The Prop. 64 retroactivity issue was raised in a motion to dismiss in that case (the opposition to which is available here). The Court of Appeal denied the motion to dismiss without opinion, perhaps for reasons explained in United Investors v. Waddell & Reed, Inc., 125 Cal.App.4th 1300 (2005), which presumably means that the Prop. 64 issue has been deferred and will be decided concurrently with the merits. Given Division Five's recent decision in Wise v. Pacific Gas & Electric Co., ___ Cal.App.4th ___ (Sept. 12, 2005) (Prop. 64 portion of opinion unpublished), the outcome here probably won't be a surprise.