On July 5, 2007, a petition for review was filed in McAdams v. Monier, Inc., no. S154088. The petition challenges the Court of Appeal's reversal of a trial court order denying certification of UCL and CLRA claims in a non-disclosure case. McAdams v. Monier, Inc., 151 Cal.App.4th 667 (2007). My original blog post on McAdams is here.
The petition has already been fully briefed. The answer to the petition was filed on July 25, 2007, and the reply was filed on August 2, 2007. Also, I've received copies of three amicus letters in support of the petition (none of which appears on the Supreme Court's docket as of this writing):
Amicus Letter of CJAC and California Bankers Association (dated 08/16/07)
Amicus Letter of Intel Corporation (dated 08/10/07)
Amicus Letter of VeriSign, Inc. and DENTSPLY International, Inc. (dated 08/17/07)
All of the letters argue that, at a minimum, the Supreme Court should issue a "grant and hold" order pending resolution of In re Tobacco Cases II and Pfizer. They also argue that California law forecloses any possibility of establishing predominance through a classwide presumption of reliance in either a CLRA or a UCL case. But the doctrine of presumed reliance in a fraud-type claim has been well established since Vasquez v. Superior Court, 4 Cal.3d 800 (1971), and no later case has repudiated the doctrine, particularly in a case (like McAdams) that rests on the defendant's failure to disclose material information known to it about the product it was selling. None of the case authorities cited in the letters supports the notion that presumed reliance no longer exists in California jurisprudence in cases involving such facts (which is what the letters basically say). Mirkin v. Wasserman, 5 Cal.4th 1083 (1993), on which the letters rely, was not an omissions case, but instead involved the "fraud on the market" theory, which would have rested on a presumption of reliance by persons who may never have heard the defendants' affirmative misprepresentations at all. The Court refused to adopt the "fraud on the market" theory, but expressly reaffirmed that "actual reliance can be proved on a class-wide basis when each class member has read or heard the same misrepresentations." Id. at 1095. Similarly, "to prove reliance on an omission[, o]ne need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently." Id. at 1093. Under Vasquez, this proof can be made on a classwide basis if the same material information was withheld from each class member. Nothing in Mirkin is to the contrary.
Unless the Court gives itself an extension of time, it has until approximately September 4, 2007 to grant or deny review. Therefore, we can expect some action during either today's conference or next week's.
UPDATE: The Supreme Court took no action on this case during its conference on Wednesday, August 22, 2007, so we will have to wait until next week. Also, thanks to the reader who emailed me to point out that the link to the VeriSign amicus letter was broken. The link has now been fixed.