On October 31, 2008, the Supreme Court gave itself an extension of time, through December 4, 2008, to grant or deny review in Clayworth v. Pfizer, Inc., no. S166435.
Clayworth is an interesting case that I did not have time to report on when it was handed down this summer. In Clayworth, the Court of Appeal (First Appellate District, Division Two) held that the "pass-on" defense applied to a price-fixing case brought by intermediate purchasers under California's Cartwright Act. Clayworth v. Pfizer, Inc., ___ Cal.App.4th ___, 83 Cal.Rptr.3d 45 (July 25, 2008; modified Aug. 18, 2008). The case also included a UCL claim. The Court of Appeal held that the plaintiffs, having passed on the the entirety of their losses, could not recover restitution within the meaning of the UCL:
Once plaintiffs resold defendants’ products, and thereby recovered all of their costs, plaintiffs relinquished any ownership interest in the claimed overcharges—and forfeited any possible UCL claim. (See Woodward, “Passing-on” the Right to Restitution (1985) 39 U.Miami L.Rev. 873.)
Slip op. at 39. Cal Biz Lit had a nice post on Clayworth back in August.