The Court of Appeal (Fourth Appellate District, Division One) has handed down a tenth post-Tobacco II opinion, Sevidal v. Target Corp., ___ Cal.App.4th ___ (Oct. 29, 2010). The opinion affirms an order denying class certification of UCL claims for lack of ascertainability and because (inventing a new element of certification) the class was "overbroad." It thus falls on the defense side of the ledger.
It also bears pointing out that class certification jurisprudence does not recognize an "overbroad class definition" as an independent basis to deny certification (even though the Sevidal court discusses this in a separate section of the opinion). Whether a class definition is "overbroad" might be relevant to the ascertainability or predominance analyses, but it is not a separate element of certification.
As authority for denying class certification because the class definition was "overbroad," the Sevidal court cited Pfizer, Inc. v. Superior Court, 182 Cal.App.4th 622 (2010), and no other authority. Pfizer did deny certification solely on the basis that the class was "overbroad," but its only authority for doing so was Kwaak v. Pfizer, Inc., 881 N.E.2d 812, 818 (Mass. App. 2008) (cited in Pfizer, 182 Cal.App.4th at 633 n.6). A careful review of that case shows that the certification order was reversed because common questions did not predominate—not because the class definition was "overbroad":
In this case, there is insufficient information in the record to identify any such similarity of exposure, deception, and causation. The class certified is everyone who purchased Listerine products during the advertising campaign, regardless whether a purchaser was exposed to the campaign. ... [N]ot every product was mislabeled. Some Listerine products, for example, contained no label or tag connected to the advertising campaign. Moreover, the advertising campaign also changed substantially over time, moving, for example, from advertisements that may have improperly conveyed a floss-replacement message (the most obviously objectionable aspect of the campaign) to advertisements that expressly did not. Therefore, many of those exposed to the advertising campaign may not have been exposed to unfair or deceptive acts as defined by [the relevant statute]. In analyzing these false advertising claims, the court will be forced to draw fine lines between actionable deception and permissible puffery. Also unclear is whether those exposed to the deceptive aspects of the advertising campaign purchased Listerine for reasons unrelated to the advertising, such as to freshen their breath or as an adjunct to flossing. [Citation.] Whether a causal connection exists between a deceptive act and a loss is not just difficult to identify but appears to vary widely depending on the customer.
Id. at 818 (footnotes omitted). The word "overbroad" appears in that opinion only once, in a footnote. Id. at 819 n.8.
As I've explained before, the problem with denying class certification in post-Prop. 64 UCL actions because of lack of reliance by unnamed class members is that, as the Supreme Court confirmed in Tobacco II, the unnamed class members need not establish reliance (or, for that matter, deception or injury). Neither they nor the named class representatives need to prove those elements at trial. It makes no sense to deny class certification because of lack of predominance on elements that will never have to be established at trial, either on a classwide basis or, indeed, at all.
Let us not allow Prop. 64 creep to redefine the elements of certification in California.