The UCL Practitioner

Supplemental letter briefs from In re Tobacco II Cases

Many thanks to the blog reader who forwarded copies of the supplemental letter briefs filed in In re Tobacco II Cases, no. S147345, the case in which the Supreme Court will address whether reliance is an element of a UCL claim after Proposition 64. As I previously reported, in October, the Supreme Court ordered supplemental briefing on the impact, if any, of its preemption opinion handed down in August. See In re Tobacco Cases II (Daniels), 41 Cal.4th 1257 (2007). The parties seem to agree that the preemption opinion should have no impact on the reliance case. Plaintiffs argue that the UCL claims in question are different from those the Court held were preempted, while defendants assert that "no substantive preemption ... issue is properly before the Court." Here are links to the letter briefs:

• Appellants' Supplemental Letter Brief (filed 11/26/07)

• Respondents' Supplemental Letter Brief (filed 11/26/07)

• Appellants' Response to Respondents' Supplemental Letter Brief (filed 12/10/07)

• Respondents' Response to Appellants' Supplemental Letter Brief (filed 12/10/07)

One of the letter briefs points out that a petition for a writ of certiorari is pending with the U.S. Supreme Court. Daniels v. Philip Morris USA, Inc., no. 07-740. The questions presented in the cert. petition are:

1. Whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1334(b), preempts a claim that respondents engaged in unfair competition under California Bus. & Prof. Code 17200, by purposefully targeting persons under 18 years old in the marketing and advertising of cigarettes, thereby inducing and profiting from transactions that are prohibited under California law?

2. Whether (a) commercial advertising that is intentionally designed to encourage minors to obtain cigarettes is entitled to protection under the First Amendment, so long as its audience does not exclusively consist of minors and, if it is, (b) whether the California Supreme Court's conclusion -- that providing a civil remedy against those who actively induce and profit from unlawful cigarette sales is unconstitutional -- can be squared with this Court's exposition of the “narrow tailoring” prong of the Central Hudson test?

Daniels v. Philip Morris USA, Inc., 2007 WL 4231074, *i (Nov. 30, 2007).

Rest of the Tobacco amicus briefs

Thanks to my lovely readers, I am now able to provide copies of the last two amicus briefs filed in In re Tobacco II Cases, no. S147345:

• Amicus Curiae Brief of the Civil Justice Association of California (submitted 03/27/07; filed 04/09/07)
  

• Amici Curiae Brief of Curt Schlessinger, Peter LoRe, and the California Law Institute (submitted 04/23/07; filed 05/04/07)
  

A list of all the briefs that I have copies of is available on my Prop. 64 Appellate Briefs page. The parties' time to file their omnibus responses to the amicus briefs has been extended to June 29, 2007.

Still more Tobacco amicus briefs

Many thanks to the blog readers who sent copies of the following additional amicus briefs in In re Tobacco II Cases, no. S147345:

• Amicus Curiae Brief of the Foundation for Taxpayer and Consumer Rights (submitted 03/26/07; filed 04/09/07)
  

• Amicus Curiae Brief of Consumers Union of United States, Inc. (submitted 04/13/07; filed 04/19/07)
  

• Amici Curiae Brief of Farmers Insurance Exchange and Granite State Insurance Exchange (submitted 04/23/07; filed 05/04/07)
  

• Amici Curiae Brief of Verisign, Inc. and AT&T Mobility LLC (submitted 04/24/07; filed 05/04/07)

A list of all the briefs that I have copies of is available on my Prop. 64 Appellate Briefs page. The only briefs of which I haven't posted copies were filed by the Civil Justice Association of California and by Curtis Schlessinger, Peter LoRe and the California Law Institute.

The Supreme Court has granted all outstanding requests for leave to file amicus briefs. The parties' consolidated responses to all amicus briefs are due on June 4, 2007 (pursuant to extensions of time granted mid-April).

Two more amicus briefs in Tobacco II

Here are two more amicus briefs in In re Tobacco II Cases, no. S147345. Both support the consumers' position:

• Amici Curiae Brief of the National Consumer Law Center and National Association Of Consumer Advocates (submitted 04/23/07) (via Consumer Law & Policy Blog)
  

• Amici Curiae Brief of Public Citizen, Inc., and The Center for Auto Safety (submitted 04/24/07)

More of the briefs are collected at this post. A number of other amicus briefs have been filed; if you have copies, please email them.

Some Tobacco II briefs

Many thanks to the reader who forwarded the following briefs in In re Tobacco II Cases, no. S147345, in which the Supreme Court will construe Proposition 64's "injury in fact" language:

• Opening Brief on the Merits (filed 12/15/06) (new!)
  

• Answer Brief on the Merits (filed 01/30/07) (new!)
  

• Reply Brief on the Merits (filed 02/22/07)
  

• Amicus Curiae Brief of Pacific Legal Foundation (submitted 03/23/07; filed 04/04/07)
  

• Amicus Curiae Brief of Consumer Attorneys of California (submitted 03/26/07)
  

• Amicus Curiae Brief of Pfizer, Inc. (submitted 03/26/07)
  

• Amicus Curiae Brief of Product Liability Advisory Council, Inc. (submitted 03/27/07)
  

I do not yet have copies of the opening brief on the merits (filed 12/15/06) or the answer brief on the merits (filed 01/30/07). If anyone has copies of additional amicus briefs, please send them to me at uclpractitioner@gmail.com. According to the docket, more amicus briefs are due to be filed on April 23, 2007.

UPDATES: Thanks to the editor of Mealey's California Section 17200 Report for sending a copy of the opening brief on the merits (filed 12/15/06). Also, thanks to the blog reader who forwarded a copy of the answer brief on the merits (filed 01/30/07). Two other amicus briefs have been submitted, by the Foundation for Taxpayer and Consumer Rights and the Civil Justice Association of California. I do not yet have copies of those. Also, the Supreme Court has granted six requests for extensions of time for other amici curiae to file their briefs. Those briefs are due on April 12 and 23, 2007. Finally, today the Supreme Court granted the Pacific Legal Foundation's application for permission to file its amicus brief. The Pacific Legal Foundation was the first to file an such an application. I anticipate that the rest of the applications will be granted apace.

Tobacco opening brief on the merits now available online

Thanks to counsel for the petitioners for forwarding a copy of their opening brief on the merits in In re Tobacco II Cases, no. S147345. The opening brief was filed on December 15, 2006. It has been added to my list of Proposition 64 appellate briefs.

Tobacco petition for review and answer now available online

Here are the petition for review and answer in Tobacco:

• Petition for Review (filed October 13, 2006)
  
• Answer to Petition for Review (filed October 30, 2006)

My sincere thanks to the reader who forwarded them. Also, for everyone's convenience here are quick links to the Court of Appeal opinions in the two cases:

• In re Tobacco II Cases, 142 Cal.App.4th 891 (2006) (review granted)
  
• Pfizer, Inc. v. Superior Court (Galfano), 141 Cal.App.4th 290 (2006) (review granted)

Pfizer answer to petition for review and depublication request available online

Many thanks to counsel for the petitioner in Pfizer for forwarding a copy of the answer to the petition for review, which was filed on August 31, 2006. Also, here is a copy of the depublication request filed on August 23, 2006.

Pfizer petition for review available online

Many thanks to counsel for the plaintiff/petitioner in Pfizer for forwarding a copy of their petition for review. This brief, along with the rest of the Pfizer briefs, has been added to my list of Prop. 64 appellate briefs. I have also updated my lists of Prop. 64 appellate opinions and pending appeals. Finally, I added Mervyn's and Branick to my list of leading California Supreme Court UCL decisions.

Pfizer appellate briefs now available online

Many thanks to the blog reader who provided copies of the appellate briefs in Pfizer v. Superior Court, ___ Cal.App.4th ___ (July 11, 2006):

• Pfizer's Petition for Writ of Mandate (filed 12/29/05)
• Real Party In Interest's Opposition (filed 03/09/06)
• Pfizer's Response (filed 03/29/06)
• Amicus Curiae Brief of California Attorney General (filed 04/21/06)
• Amici Curiae Brief of U.S. Chamber of Commerce et al. (filed 04/24/06)
• Amici Curiae Brief of Civil Justice Association of California et al. (filed 04/24/06)
• Amicus Curiae Brief of Product Liability Advisory Council, Inc. (filed 04/24/06)
• Real Party in Interest's Response to Amici Curiae Briefs (filed 05/15/06)

Updated lists of Prop. 64 opinions, pending appeals, and briefs

My lists of Prop. 64 opinions, pending appeals, and briefs have been updated. I've also revised and expanded my welcome page and added a new resource to my list of UCL practice guides.

Copies of three Prop. 64 review petitions

Here are the petitions for review in the following cases:

• Bivens v. Gallery Corp., Cal. Supreme Court case no. S140396 (petition filed 01/13/06)
• Hartford Fire Ins. Co. v. Superior Court, Cal. Supreme Court case no. S140272 (petition filed 01/06/06)
• Schwartz v. Visa Int'l Service Assn., Cal. Supreme Court case no. S138751 (petition filed 11/07/05; review granted 12/14/05) (UPDATE: The link to the Schwartz brief was broken but has been fixed. Just one little typo in the HTML will kill ya.)

Check out the color ad embedded in the middle of the Bivens v. Gallery Corp. brief. Pretty neat. Also, while the Hartford review petition was prepared for my signature, I cannot claim credit for drafting it. It was prepared in its entirety by my able co-counsel, Alex Hardiman.

These briefs have not yet been added to my list of Prop. 64 appellate briefs. I've been so busy with work lately that I have not had time to update any of my lists. In particular, my list of pending appellate cases and published appellate opinions are both out of date at the moment. I have a case going to trial on February 6, so it's unlikely that any of these lists will be updated until after that's over.

UCL miscellany from the blog pile

The August 2005 issue of the Association of Business Trial Lawyers Report (San Diego chapter) ran an article called "Has the Class Certification Inquiry Changed Due to Proposition 64?"

An appellate brief in another pending appeal raising Prop. 64 retroactivity is accessible at this link. (Merritt v. Cingular Wireless, no. B178747, Second Appellate District, Division One.)

Another trial court tentative ruling on Prop. 64 retroactivity is accessible here. (Eustis v. Advanced Laser Clinics of California, Sacramento County Superior Court, case no. 04AS03204, Judge Thomas M. Cecil.)

In last Friday's paper, San Francisco Chronicle columnist David Lazarus mentioned section 17200 by name in his report on "The War Between The Stickers" — a possible UCL violation by a water heater repair company. (I think I got one of those stickers.)

Not to be outdone, The Recorder now has its own blog, Legal Pad, where reporters "drop by ... to blog about the stuff that might otherwise fall through the cracks." Hey, that's my job.

Two more briefs in Mervyn's and Branick

The editor of Mealey's California Section 17200 Report was kind enough to send me the Branick reply brief on the merits. Also, thanks to the reader who forwarded the amicus brief of the California League for Environmental Enforcement Now in Mervyn's. The latter includes an interesting discussion of associational standing, and argues that the "and lost money or property" language should not be interpreted to require something more than the ordinary "injury in fact" standing rules require under Article III. Both of these briefs have been added to my list of Prop. 64 appellate briefs.

Another Mervyn's amicus brief

Many thanks to the reader who sent me yet another amicus brief in Mervyn's:

• Amici Curiae Brief of National Association of Consumer Advoates and Trial Lawyers for Public Justice (accepted for filing 09/29/05)

This brief makes two intriguing arguments: (1) the so-called "stautory repeal rule" should not be applied to voter initiatives; and (2) the so-called "statutory repeal rule" has been impliedly, and should be expressly, repudiated. The brief points out that the Supreme Court has not even mentioned this so-called "rule" since 1978—twenty-seven years ago—and that "in several cases, the Court discussed retroactivity in settings where, if of any remaining vitality, the statutory repeal doctrine would surely have been at least mentioned." NACA Amicus Brief at 7, 11-12 (citing Myers v. Philip Morris Cos., 28 Cal.4th 828 (2002); Hoffman v. Board of Retirement, 42 Cal.3d 590 (1986); and Balen v. Peralta Junior College District, 11 Cal.3d 821 (1974)).

Still more Mervyn's amicus briefs

Thanks to my lovely readers, I have three more Mervyn's amicus briefs to share:

• Amici Curiae Brief of California Chamber of Commerce et al. (submitted 09/15/05)
  
• Amici Curiae Brief of Consumer Attorneys of California, Janice Duran and Julia Ramos (submitted 09/22/05)
  
• Amici Curiae Brief of Pacific Legal Foundation and Central California Citizens Against Lawsuit Abuse (submitted 09/22/05)
  

These have all been added to my list of Prop. 64 appellate briefs.

More Mervyn's amicus briefs

Many thanks to the readers who forwarded copies of these additional amicus briefs in Mervyn's:

• Amicus Curiae Brief of AARP (leave to file granted 08/31/05)
• Amici Curiae Brief of Express Scripts, Inc., National Prescription Administrators, Inc., Aetna Health of California, Inc. and Aetna Life Ins. Co. (submitted 09/22/05)

If you have any others, please send them along.

Amicus briefs in Mervyn's

It seems that last week was the deadline to file amicus curiae briefs in the Mervyn's case. I've received two so far:

• Amici Curiae Brief of Center for Biological Diversity, Environmental Protection Information Center, and Electronic Frontier Foundation (submitted 09/21/05)
• Amicus Curiae Brief of Civil Justice Association of California (submitted 09/23/05)

According to the docket, a total of thirteen amicus briefs have been submitted. If you have a copy of any of them, please send it to me and I'll put it up. Meanwhile, these two have been added to my list of Prop. 64 appellate briefs.

Additional Mervyn's and Branick briefs now online

I obtained these additional briefs from the Supreme Court. Again, these are large files and may take a while to download. Patience is a virtue when downloading large files.

Californians for Disability Rights v. Mervyn's:

• Answer Brief on the Merits
  
• Reply Brief on the Merits

Branick v. Downey Sav. & Loan:

• Answer Brief on the Merits
  
• Amicus Curiae Brief of AARP
  
• Reply to AARP Amicus Curiae Brief

I was unable to obtain a copy of the reply brief on the merits in Branick. That reply brief was submitted for filing on Wednesday, along with a request for leave to file an overlength brief. Presumably, that brief will become available after the Supreme Court acts on the overlength brief request. Meanwhile, the other briefs have been added to my list of Prop. 64 appellate briefs. UPDATE: There were typographical errors in the links to the reply brief on the merits in Mervyn's and the answer brief on the merits in Branick. The errors have been fixed. Thanks to the readers who brought these errors to my attention.

Mervyn's and Branick opening briefs now available online

I've put up copies of the Mervyn's opening brief on the merits (filed 05/31/05) and the Branick opening brief on the merits (filed 06/13/05), which I got from the Supreme Court clerk's office earlier this week. Please be aware that these are large files and might take a while to download. They have been added to my list of Prop. 64 appellate briefs.

17200 blog hiatus

I'm going to be away on vacation for the next week. Please do continue to email me with news about the UCL and/or Proposition 64. In the meantime, here are a few new items:

• The Court of Appeal scheduled oral argument in Petrini Van & Storage, Inc. v. Superior Court, Third Appellate District, case no. C049042, for August 26, 2005 at 9:30 a.m. It will be quite interesting to see what the Third District does with Prop. 64 retroactivity.

• The Court of Appeal also scheduled oral argument in Wilson v. Brawn of California, First Appellate District, Division One, case no. A106368, for July 15, 2005 at 9:00 a.m.

• A petition for review was recently filed in Cohen v. Health Net of California, Inc., ___ Cal.App.4th ___ (Apr. 27, 2005), which the Court of Appeal ordered partially published on May 25. The discussion of Prop. 64 was not published, but the petition for review addresses it. Many thanks to counsel for Mr. Cohen for providing a copy of his brief.

• The most recent issue of Mealey's California Section 17200 Report is now available. I hope that Mealey's will do a profile of me and my blog one of these days (hint, hint).

I think I set a new career record for billable hours this month (and yes, it's only the 24th). I'm hoping that my average weekly blog posts will go back up to normal in July. I'm feeling good and very ready for my vacation as I just got class certification granted in one of my cases today! Posting will resume during the week of July 5th so I'll talk to you then.