I confess I was surprised that the Supreme Court granted full review in Tobacco, but issued a "grant and hold" order in Pfizer. Given what I know about how the issues overlap in the two cases, I would have expected the opposite. Here are a few educated guesses about why the Supreme Court handled the cases this way:
- Something about Tobacco warrants expedited review. (I won't be sure what that might be until I see the briefs, which I expect to get later today.) As I reported the other day, the Supreme Court denied respondents' motion for a seven-day extension of time to file their answer to the review petition, noting that it was considering expedited review. It then ordered respondents to file their answer by Monday, October 30 (just four days later and eleven days sooner than respondents were requesting). A reader pointed out that this order actually curtailed respondents' time to file their answer. Ordinarily, an answer to a petition for review is due 20 days after the petition is filed. Rule of Court 28(e)(4). In Tobacco, that due date would have been November 2 (today). Somebody probably worked all weekend to get the answer done and filed by October 30. If the Supreme Court is reviewing Tobacco on an expedited basis, then obviously that case comes ahead of Pfizer (in which the Supreme Court gave itself 90 more days to decide the petition).
- Tobacco took the entire Prop. 64 analysis a step further than Pfizer, into the realm of class certification. It is therefore more efficient to review Tobacco before Pfizer. In theory, resolving all the issues raised in Tobacco would dispose of all the issues raised in Pfizer, and more, allowing the Supreme Court to transfer Pfizer back to the Court of Appeal once Tobacco is decided. By contrast, if the Supreme Court resolved Pfizer first, it would then have to turn to Tobacco to decide the class certification issues. (This reason may be a stretch, given that Tobacco did not expressly address the "likely to deceive" or reliance issues decided in Pfizer. On the other hand, Tobacco includes a CLRA claim, which Pfizer does not.)
- Tobacco was decided after the Supreme Court handed down Mervyn's, and analyzed (albeit cursorily) the impact of Mervyn's. Pfizer preceded Mervyn's by almost two weeks. Therefore, the Supreme Court's review of the Court of Appeal's analysis in Tobacco will begin at a more advanced level, making the review more meaningful.
- In Pfizer, two justices (Justices Chin and Corrigan) are disqualified and have recused themselves from participating. In Tobacco, only one justice has recused himself (Chief Justice George). (This information appears in the docket entries granting review.) The panel deciding Tobacco will therefore need only one specially-assigned justice, not two.
- A case alleging improper marketing of cigarettes is more societally important than one alleging improper marketing of mouthwash. Tobacco thus presents a better context in which to decide critical questions about how Prop. 64 should be interpreted and its real-world ramifications.