In In re Tobacco Cases II, ___ Cal.App.4th ___ (Sept. 28, 2015), the Court of Appeal (Fourth Appellate District, Division One) handed down an interesting new opinion in the long-running UCL cases involving "light" cigarettes. I'm sure everyone recalls the Supreme Court's landmark opinion in this case from 2009, In re Tobacco II Cases, 46 Cal.4th 298 (2009) (discussed here).
After remand following the Supreme Court's decision, the trial court conducted a bench trial, and ultimately held that Philip Morris knew that "light" cigarettes were no less dangerous than other cigarettes, and that its advertising was likely to deceive a reasonable consumer. Slip op. at 2, 5-6. However, the trial court exercised its discretion to decline to award restitution, based in part on lack of competent evidence. Id. at 2, 7-9. The trial court also denied injunctive relief. Id. at 2, 9.
The Court of Appeal affirmed the judgment in full, in an interesting opinion that addresses UCL restitution in detail. Id. at 12-30. The discussion of injunctive relief is also quite interesting. Id. at 30-32. Given the outcome and the issues, I would assume that a review petition will be filed.
I will be discussing this opinion during a panel at the 25th Annual Golden State Antitrust and Unfair Competition Law Institute on October 29, 2015 in San Francisco. The description of my panel is below. I am looking forward to this event and hope to see some of you there.
Session #3 -- GSI 25th Anniversary Retrospective and Prospective Views on CA Antitrust and Unfair Competition Law
This panel of leading plaintiffs' lawyers and defense counsel, moderated by a preeminent California federal court judge, will discuss the major changes in California antitrust and UCL law over the last 25 years and what the panelists prognosticate for the future. The panel also will explore the effect of technology on how these cases have been tried and what changes they see for the future.
- Craig Corbitt, Zelle Hofmann Voelbel & Mason LLP-San Francisco, CA
- Dan Wall, Latham & Watkins LLP-San Francisco, CA
- Kimberly A. Kralowec, The Kralowec Law Group-San Francisco, CA
- William Stern, Morrison & Foerster LLP-San Francisco, CA
Moderator: Hon. Susan Illston, United States District Judge for the Northern District of California-San Francisco, CA