The UCL Practitioner

Supreme Court briefs in Pineda v. Bank of America

The Supreme Court has posted copies of the briefs in Pineda v. Bank of America, no. S170758, which is scheduled for oral argument in Fresno on Tuesday, October 5, 2010 at 1:30 p.m.:

S170758 - PINEDA v. BANK OF AMERICA
(Chin, J., not participating; Richli, J., assigned justice pro tempore)

• Expanded Background Summary
• Appellant's Petition for Review
• Respondent's Answer to Petition for Review
• Appellant's Reply to Answer to Petition for Review
• Appellant's Opening Brief on the Merits
• Respondent's Answer Brief on the Merits
• Appellant's Reply Brief on the Merits

From a UCL perspective, the most interesting issue in Pineda is whether waiting time penalties under Labor Code section 203 may be recovered as restitution in a UCL "unlawful" prong case for violation of that section.  The opening brief on the merits relies on the "vested interest" theory of UCL restitution, arguing that like the "earned wages" "due and payable” in Cortez, the penalty wages are also due and payable by operation of statute, giving the workers a property interest in the funds recoverable under the UCL as restitution. I think that's a persuasive argument, wholly consistent with Cortez and the purpose of UCL restitution generally. 

The brief says that Judge David Velasquez of the Orange County Superior Court has adopted that reasoning in at least one other case.  The order referred to appears to be the same one discussed in this blog post from May 2008.

For more on the "vested interest" theory of UCL restitution, see my article on the subject (link accessible to CAOC members only). 

Supreme Court to hand down two opinions of interest today: Clark v. Superior Court and Lu v. Hawaiian Gardens

According to Friday's notice of forthcoming filings, two opinions of interest will be handed down this morning at 10:00 a.m.:

• Clark v. Superior Court (Nat'l Western Life Ins.), ___ Cal.4th ___ (Aug. 10, 2010) (no. S174229)
  
• Lu v. Hawaiian Gardens Casino, Inc., ___ Cal.4th ___ (Aug. 10, 2010) (no. S171442)

Clark involves whether the enhanced remedies of Civil Code section 3345 (applicable in certain cases brought by senior citizens and disabled persons) are recoverable in a UCL "unlawful" prong case predicated on violation of that statute.  Here's my original post on the case. 

Lu involves whether Labor Code section 351 creates a private right of action.  The case also included a UCL "unlawful" prong cause of action, my original discussion of which is here. 

More thoughts on Clayworth v. Pfizer

Another notable part of Clayworth v. Pfizer, Inc., ___ Cal.4th ___ (Jul. 12, 2010) is its confirmation that plaintiffs who did not purchase a product "directly" from the defendant may nonetheless bring a UCL claim and recover restitution if the plaintiff's loss can be traced to the defendant's pockets.  This was an issue in some cases involving purchases of products from retail intermediaries, until the Court of Appeal rejected the argument in Shersher v. Superior Court, 154 Cal.App.4th 1491 (2007) (discussed in this blog post).

The Supreme Court adopted the rule of Shersher in Clayworth:

While the voters clearly intended to restrict UCL standing, they just as plainly preserved standing for those who had had business dealings with a defendant and had lost money or property as a result of the defendant’s unfair business practices. (Prop. 64, § 1, subds. (b), (d); see § 17204.) Under that standard, Pharmacies have established standing. To distribute their pharmaceuticals, Manufacturers depend on a network of wholesalers and retailers. Pharmacies acted as retailers for Manufacturers’ drugs and thus had indirect business dealings with Manufacturers. (See Shersher v. Superior Court (2007) 154 Cal.App.4th 1491, 1499-1500 [indirect purchases may support UCL standing].) They lost money: the overcharges they paid. (See Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 854 [§ 17204 standard is satisfied when the plaintiff has “expended money due to the defendant’s acts of unfair competition”].) Finally, that loss was the result of an unfair business practice: Pharmacies paid more than they otherwise would have because of a price-fixing conspiracy in violation of state law. The voters’ intent that under Proposition 64 suits be limited to those who suffer injury in fact is satisfied here. (See Chattanooga Foundry v. Atlanta, supra, 203 U.S. at p. 396 [“A person whose property is diminished by a payment of money wrongfully induced is injured in his property.”].)

Slip op. at 38-39 (emphasis added).

Supreme Court hands down significant UCL decision: Clayworth v. Pfizer

The Supreme Court's decision in Clayworth v. Pfizer is now up.  Clayworth v. Pfizer, Inc., ___ Cal.4th ____ (Jul. 12, 2010). 

After discussing the Cartwright Act claim in depth, the Court turned to the UCL, and confirmed that, to have standing to seek an injunction, the plaintiff need not have suffered a loss that would be recoverable as restitution: 

The Court of Appeal held Pharmacies were barred from seeking injunctive relief because, it concluded, they had suffered no monetary loss. To the extent this holding rests on the conclusion Pharmacies lacked standing under section 17204, it is erroneous; as discussed ante, Pharmacies have standing. To the extent the holding rests on the conclusion that even if Pharmacies had standing, they could not seek injunctive relief unless they could also seek restitution, it similarly is erroneous. Section 17203 makes injunctive relief “the primary form of relief available under the UCL,” while restitution is merely “ancillary.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 319.) Nothing in the statute’s language conditions a court’s authority to order injunctive relief on the need in a given case to also order restitution. Accordingly, the right to seek injunctive relief under section 17203 is not dependent on the right to seek restitution; the two are wholly independent remedies. (See ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1268 [§ 17203 “contains . . . no language of condition linking injunctive and restitutionary relief”]; Prata v. Superior Court (2001) 91 Cal.App.4th 1128, 1139 [plaintiff could pursue injunctive relief even though restitution was unavailable].)

Slip op. at 41. This overrules a number of decisions, such as Buckland and Citizens for Humanity, holding that the only type of monetary loss that can confer standing is a restitutionary loss. This is going to be very important for preserving competitor vs. competitor UCL cases.

I'm still reviewing the opinion and hope to have more on it later.  The Court also held that the pass-on defense does not bar either the Cartwright Act or the UCL claims. 

Clayworth v. Pfizer opinion to be handed down Monday

Many thanks to the blog reader who emailed to advise that the Supreme Court's opinion in Clayworth v. Pfizer, Inc., no. S166435, will be handed down on Monday at 10:00 a.m., according to the Notice of Forthcoming Filings posted today. 

When it is issued, the opinion should be available at this link:

• Clayworth v. Pfizer, Inc., ___ Cal.4th ___ (Jul. 12, 2010).

Supreme Court denies review in ninth post-Tobacco II case: Pfizer v. Superior Court (Galfano)

During its conference last week (on June 17, 2010), the Supreme Court denied review and depublication in the ninth post-Tobacco II case, Pfizer, Inc. v. Superior Court (Galfano), no. S181786. 

[Via Bailey Class Action Daily.] 

Recent Supreme Court activity in three UCL cases: Princess Cruise Lines, Cohen and Zhang

On February 4, 2010, the Supreme Court denied review in Princess Cruise Lines v. Superior Court (Wang), no. S178842.   Here is my original post on the case, which interpreted Tobacco II.

On February 10, 2010, the Supreme Court denied review and depublication in Cohen v. DirecTV, no. S177734.  Justice Werdegar voted to grant review.  Here is my original post on the case, and follow-up posts with some of the briefs.

On February 10, 2010, the Supreme Court granted review in Zhang v. Superior Court (Cal. Cap. Ins.), no. S178542.  This case will address whether insurance companies enjoy any special exemption from UCL liability.  The statement of issues on review reads:

(1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, § 17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action?

Here is my original post on the case.  It has been added to my list of pending Supreme Court cases of interest.

Supreme Court dismisses final Tobacco II "grant and hold" case: O'Brien v. Camisasca Automotive Mfg.

On Thursday, November 19, 2009, the Supreme Court finally acted on the last of the Tobacco II "grant and hold" cases, O'Brien v. Camisasca Automotive Mfg., no. S163207.  Instead of transferring the case back to the intermediate appellate panel for further proceedings, as in McAdams and Pfizer (Galfano), the Court simply dismissed review.  The dismissal order reads:

In light of the decision in In re Tobacco II Cases (2009) 46 Cal.4th 298 and Meyer v. Sprint Spectrum LP (2009) 24 Cal.4th 634, review in the above-entitled matter is dismissed. (Cal. Rules of Court, rule 8.528(b)(1).)

(Hyperlink added.)  This means that the earlier Court of Appeal opinion stands and binds the parties, but it remains unpublished.  Here is my original blog post on the Court of Appeal opinion, and the opinion itself (Second Appellate District, Division Three).  

I'm sure the similarity of issues between O'Brien and Kwikset was not lost on the Supreme Court.  Both are "Made in the U.S.A." cases that lower courts dismissed for lack of Prop. 64 standing (although the similarities end there). Perhaps the Court felt that leaving the O'Brien opinion unpublished was the best way to manage the development of the case law in this area.  O'Brien, of course, was decided long before review was granted in Kwikset, and I'm not sure there is any procedural way to convert O'Brien into a Kwikset "grant and hold" case, which it could easily have become if it had been handed down later. 

Interestingly, both O'Brien and Pfizer/Galfano are Second Appellate District, Division Three cases, and two of the panel Justices (Klein and Kitching) are the same.  Justice Croskey will join in re-deciding Pfizer/Galfano in a few weeks, whereas Justice Aldrich was the third panelist in O'Brien.

Review granted in Yabsley v. Cingular Wireless

On Thursday, November 19, 2009, the Supreme Court issued a "grant and hold" order in Yabsley v. Cingular Wireless, no. S716146, "pending consideration and disposition of a related issue in Loeffler v. Target Corp., S173972."  (Hyperlink added.)  Here is the statement of the issue:

Does article XIII, section 32 of the California Constitution or Revenue and Taxation Code section 6932 bar a consumer from filing a lawsuit against a retailer under the Unfair Competition Law (Bus. & Prof. Code sections 17200 et seq.) or the Consumers Legal Remedies Act (Civ. Code, section 1750 et seq.) alleging that the retailer charged sales tax on transactions that were not taxable?

This is the UCL "unlawful" prong case in which I thought the opinion contained several non-outcome-determinative errors.  That was the primary basis for my depublication request for CAOC, but it seems clear that review was granted because of the underlying tax law issue raised in the case, which is the same as the issue in Loeffler.  Either way, the opinion is no longer citable precedent.

For more on the case, including links to some of the briefs, see these blog posts. 

More material from Yabsley v. Cingular Wireless

A reader posted a comment asking whether I could put up additional material from Yabsley v. Cingular Wireless, no. S716146, in which a petition for review was filed on September 29, 2009.  Here's what I have: 

• Depublication Request of The Kick Law Firm (filed 09/09/09) (initial case event)
• Depublication Request of Consumer Attorneys of California (filed 09/14/09)
• Opposition of the California State Board of Equalization to both Depublication Requests (filed 09/18/09)
• Opposition of AT&T Mobility LLC fka Cingular Wireless LLC to CAOC's Depublication Request (filed 09/24/09)

See these two blog posts for more on Yabsley.  If anyone has copies of additional documents, such as the petition for review or the opposition filed by the Association of Southern California Defense Counsel, please forward.

Review granted in UCL remedies case: Clark v. Superior Court (Nat'l Western Life Ins.)

Many thanks to the blog reader who pointed out that on September 9, 2009, the Supreme Court granted review in Clark v. Superior Court (National Western Life Ins. Co.), no. S174229.  This is the issue on review:

Is Civil Code section 3345, which permits an enhanced award of up to three times the amount of a fine, civil penalty, or "any other remedy the purpose or effect of which is to punish or deter" in actions brought by or on behalf of senior citizens or disabled persons seeking to "redress unfair or deceptive acts or practices or unfair methods of competition," applicable in an action brought by senior citizens seeking restitution under the Unfair Competition Law (Bus. & Prof. Code, section 17200 et seq.)?

(Emphasis added.)  The Court of Appeal's opinion is Clark v. Superior Court (Nat'l Western Life Ins. Co.), ___ Cal.App.4th ___ (May 21, 2009), and my original blog post on it is here.   

This case has been added to my list of pending Supreme Court cases raising issues related to the UCL, the CLRA and class action practice.  I've also updated that list to fix all the broken links that resulted when the Supreme Court revamped its website a few months ago. 

Transfer orders issued in Tobacco "grant and hold" cases: Pfizer and McAdams

Today, the Supreme Court issued transfer orders in the two Tobacco "grant and hold" cases, Pfizer, Inc. v. Superior Court (Galfano), no. S145775, and McAdams v. Monier, no. S154088.  McAdams has been transferred back to the Third Appellate District, and Pfizer is now returned to the Second District, Division Three.  Both appellate courts have been directed to vacate their opinions and reconsider in light of Tobacco.   

The parties now have a very short period of time to file supplemental briefs under Rule of Court 8.200(b)(1). 

UPDATE:  There is a third Tobacco "grant and hold" case, O'Brien v. Camisasca Automotive Mfg., no. S163207, in which no transfer order has yet been posted.

List of pending Supreme Court cases updated

My list of pending California Supreme Court cases that raise issues of interest relating to the UCL, the CLRA, and/or class actions has been updated.

BREAKING NEWS: Rehearing denied in Tobacco

This afternoon, the Supreme Court denied rehearing in In re Tobacco II Cases, no. S147345.  According to the docket, Chief Justice George remained recused (notwithstanding a substitution of attorneys filed the day before the rehearing petition) and did not participate in the decision:

08/12/2009

Rehearing denied

The petition for rehearing is denied. George, C.J., was recused and did not participate. Baxter, Chin and Corrigan, JJ., are of the opinion the petition should be granted. Eileen C. Moore, Associate Justice, Court of Appeal, Fourth Appellate District, Division Three, was assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.

Supreme Court discusses UCL "unlawful" prong: Munson v. Del Taco, Inc.

In Munson v. Del Taco, Inc., ___ Cal.4th ___ (Jun. 11, 2009), a case involving disability discrimination under the Unruh Civil Rights Act, the Supreme Court discussed the UCL's "unlawful" prong:

Gunther also noted that under its interpretation of section 51, subdivision (f), violations of the ADA that do not involve intentional discrimination might still find a remedy in California law through an action charging an unlawful business practice (Bus. & Prof. Code, §§ 17200, 17203). (Gunther, supra, 144 Cal.App.4th at p. 234.) Though true, that could not have been a purpose of adding subdivision (f) to section 51 of the Civil Code. Violations of federal as well as state and local law may serve as the predicate for an unlawful practice claim under Business and Professions Code section 17200. (See Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1450, fn. 5; Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838-839.) Assuming all other requirements for such an action were met, therefore, violations of the ADA’s accessibility mandate, whether involving intentional discrimination or not, would be remediable through Business and Professions Code sections 17200 and 17203. It did not take incorporation of the ADA mandate into the Unruh Civil Rights Act to achieve that result.

Slip op. at 18-19 (bold added). I believe this is the first time that the Supreme Court, rather than the Court of Appeal, has confirmed that a UCL "unlawful" prong claim may be predicated on violations of federal and local laws as well as state laws. This language is also useful for its confirmation that the UCL carries no "intent" element (or any other element of scienter). 

A quick post on the Arias and Amalgamated holdings

The opinions are both up. Here are quick excerpts from the introductions:

We hold that an employee who, on behalf of himself and other employees, sues an employer under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) for Labor Code violations must satisfy class action requirements, but that those requirements need not be met when an employee‘s representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.).

Arias, slip op. at 1.

This case presents two issues. First, may a plaintiff labor union that has not suffered actual injury under the unfair competition law, and that is not an "aggrieved employee" under the Labor Code Private Attorney General Act of 2004, nevertheless bring a representative action under those laws (1) as the assignee of employees who have suffered an actual injury and who are aggrieved employees, or (2) as an association whose members have suffered actual injury and are aggrieved employees? The answer is "no." Second, must a representative action under the unfair competition law be brought as a class action? The answer is "yes," for the reasons stated in the companion case of Arias v. Superior Court (June 29, 2009, S155965) ___ Cal.4th ___.

Amalgamated, slip op. at 2 (emphasis in original).

BREAKING NEWS: Supreme Court to hand down Arias and Amalgamated decisions Monday

This morning the Supreme Court announced that on Monday at 10:00 a.m., it will be handing down its decisions in the Arias and Amalgamated cases, which were argued in early April.  These cases address, among other issues, whether formal class certification is required in PAGA and UCL actions (post-Prop. 64) in which relief is sought on behalf of others.  Amalgamated may also address whether associational standing survived Prop. 64. 

See this blog post for the statements of the issues and links to the Court of Appeal opinions.  Reports on the oral arguments are available here and here.  When the decisions are posted, they will be avialable at these links:

• Arias v. Superior Court, ___ Cal.4th ___ (Jun. 29, 2009)
  

• Amalgamated Transit Union v. Superior Court (First Transit, Inc.), ___ Cal.4th ___ (Jun. 29, 2009)

More Supreme Court developments

Today, the Supreme Court granted itself an extension of time (through August 14) to grant or deny the petition for rehearing in Tobacco (docket).

Yesterday, the Supreme Court denied review and depublication in the Troyk case (docket).  Justices Baxter, Chin and Corrigan voted to grant review.  An article (subscription) by Mike McKee in yesterday's Recorder discussed this case in more detail. 

Today's Recorder has an article (subscription) about yesterday's grant of review in Kwisket. 

Petition for rehearing filed in Tobacco

On Tuesday, June 2, 2009, a petition for rehearing was filed in In re Tobacco Cases II, no. S147345.  The answer will be due on Wednesday, June 10, and the Supreme Court's ruling can be expected by June 17 (unless the court grants itself an extension of time). 

Additionally, on Monday, June 1, a substitution of attorneys was filed, substituting Reed Smith in place of Loeb & Loeb as counsel for one of the defendants.  According to the Daily Journal, Loeb & Loeb represents Chief Justice George in connection with his estate planning, which is why he was recused from hearing the case.  Justice Eileen Moore of the Fourth Appellate District, Division Three, sat in his stead.  

A rehearing petition was also filed, and denied, recently in Meyer v. Sprint Spectrum, no. S153846.  In that case, the Supreme Court granted itself an extension of time before denying the petition. 

Supreme Court affirms reversal of UCL/CLRA judgment: Miller v. Bank of America, NT & SA

This morning, the Supreme Court affirmed the Court of Appeal's reversal of a $1 billion verdict in a UCL/CLRA case.  Miller v. Bank of America, NT & SA, ___ Cal.4th ___ (Jun. 1, 2009).  The opinion contains no particular discussion of any UCL or CLRA issue.  Instead, it focuses in on certain provisions of the Financial Code governing fee setoffs by banks, and holds that BofA's practices did not run afoul of those provisions. 

Supreme Court to hand down opinion Monday in Miller v. Bank of America

The Supreme Court announced today that it will be handing down its opinion in Miller v. Bank of America, no. S149178, on Monday at 10:00 a.m. When it is posted, the opinion will be available at this link: Miller v. Bank of America, ___ Cal.4th ___ (Jun. 1, 2009).

The case raises UCL and CLRA claims in the following context:

Does California law, which provides that a bank account into which public benefit funds or Social Security payments have been electronically deposited is exempt from attachment and execution, prohibit a bank from exercising its right to setoff as to charges—such as overdraft fees and insufficient fund fees—arising out of use of that same account?

Here are some prior blog posts on the case.

More amicus letters in support of review in Kwikset Corp. v. Superior Court (Benson)

Here are copies of six more amicus letters in support of the petition for review in Kwikset Corp. v. Superior Court (Benson), no. S171845:

• Amicus Letter of California Teamsters Public Affairs Council (dated 04/28/09)
• Amicus Letter of Consumer Attorneys of California (dated 04/28/09)
• Amicus Letter of the San Francisco District Attorney (dated 05/08/09)
• Amicus Letter of the National Association of Consumer Advocates and the National Consumer Law Center (dated 05/08/09)
• Amicus Letter of the Natural Resources Defense Council (dated 05/11/09)
• Amicus Letter of Agudath Israel of California (undated)

A seventh amicus letter, plus a copy of the petition for review, are available at this post.

It would be very appropriate for the Supreme Court to take up Kwikset, especially now that Tobacco has been decided.  In Tobacco, the Court interpreted Prop. 64's "as a result of" language in the context of a UCL "fraudulent" prong claim.  Kwikset would address Prop. 64's "lost money or property" language in the same context.  The question naturally flows next from what the Supreme Court decided in Tobacco. 

Once "actual reliance" is established under Tobacco (that is, that the defendant's misrepresentation was "a substantial factor" in the named plaintiff's purchasing decision (Tobacco, slip op. at 30)), the lower courts will still need to address whether the money the named plaintiff paid for the falsely-represented product counts as having been "lost" or whether (as Kwikset held) the product must be somehow defective or inferior -- in addition to falsely represented.  It will be quite interesting to see what the Court does.

BREAKING NEWS: Supreme Court to hand down In re Tobacco decision on Monday

Today, the Supreme Court announced that it will be handing down its decision in In re Tobacco II Cases, no. S147345, on Monday morning.  The opinion should be available at this link:

In re Tobacco II Cases, ___ Cal.4th ___ (May 18, 2009)

These are the issues on review in the case:

(1) In order to bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64 (Gen. Elec. (Nov. 2, 2004)), must every member of the proposed class have suffered “injury in fact,” or is it sufficient that the class representative comply with that requirement? (2) In a class action based on a manufacturer’s alleged misrepresentation of a product, must every member of the class have actually relied on the manufacturer’s representations?

My report on the oral argument, which took place in early March, is available at this link.

Petition for review filed in Kwikset Corp. v. Superior Court (Benson)

On April 6, 2009, a petition for review was filed in Kwikset Corp. v. Superior Court (Benson), no. S171845. The answer and reply have also been filed, as well as a depublication request, and I've heard that multiple amicus letters in support of review are coming in. So far, I have copies of two items:

• Petition for Review (filed 04/06/09)
  
• Amicus Letter of Consumer Action et al. (dated 05/06/09)

My original blog post on the Court of Appeal opinion, Kwikset Corp. v. Superior Court (Benson), 171 Cal.App.4th 645 (Feb. 25, 2009) (Fourth Appellate District, Division Three), is at this link.

In related news, a petition for review and depublication request have also been filed in Troyk v. Farmers Group, Inc., no. S172288.  

UPDATE:  Thanks to the blog reader who emailed to advise me of a problem with the links to the two briefs.  The problem has been fixed and you should now be able to access them.

Supreme Court takes up two cases involving UCL issues: Pineda v. Bank of America and Sullivan v. Oracle

Today, the Supreme Court took up two cases involving UCL issues. 

First, the Court granted review in Pineda v. Bank of America, no. S170758, in which the Court of Appeal (First Appellate District, Division Three) held that Labor Code “section 203 penalties may not be recovered as restitution under Business and Professions Code section 17203.” Pineda v. Bank of America, N.A., 170 Cal.App.4th 388, 390 (2009) (discussed in this blog post).  That opinion is no longer citable as precedent. 

Second, the Court accepted the questions certified to it by the Ninth Circuit in Sullivan v. Oracle Corp., no. S170577:

First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

Second, does §17200 apply to the overtime work described in question one?

Third, does §17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?

Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009) (listing certified questions).  See this blog post for more on the Ninth Circuit's withdrawn opinion, Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008).

As soon as I have time, I will add these cases to my list of pending Supreme Court cases involving UCL and/or class certification issues. 

Statement of issues on review in Clayworth v. Pfizer, Inc.

The Supreme Court has posted its statement of issues on review in Clayworth v. Pfizer, Inc., no. S166435. The UCL-related issues are particularly interesting:

(1) When plaintiffs pay overcharges on goods or services as a result of the anticompetitive conduct of defendant sellers but recover the overcharges through increased prices at which the goods or services are sold to end users, may defendants assert a "pass-on" defense and argue that plaintiffs were not injured because they did not suffer financial loss as a result of the anticompetitive conduct? (2) Is restitution available under the Unfair Competition Law (Bus. & Prof. Code, 17200 et seq.) to plaintiffs who recovered from third persons the overcharges paid to defendants? (3) When plaintiffs recover from third persons the overcharges paid to defendants, have they suffered actual injury and lost money or property for purposes of establishing standing under the Unfair Competition Law, as amended by Proposition 64?

I've added Clayworth to my list of pending California Supreme Court cases of interest to UCL and class action practitioners. I also added Brinker to that list.

Supreme Court grants review in UCL/antitrust case: Clayworth v. Pfizer, Inc.

Yesterday, the Supreme Court granted review in Clayworth v. Pfizer, Inc., no. S166435. In Clayworth, the Court of Appeal held that the "pass-on" defense applied to a price-fixing case brought by intermediate purchasers under California's Cartwright Act, and also that if the plaintiffs have passed on the entirety of their losses, they can no longer recover restitution under the UCL. Clayworth v. Pfizer, Inc., ___ Cal.App.4th ___, 83 Cal.Rptr.3d 45 (2008) (review granted). See this blog post for more on Clayworth.

In addition, the Supreme Court denied review in Medrazo v. Honda of North Hollywood, no. S167170. In Medrazo, the Court of Appeal (Second Appellate District, Division Four) reversed an order denying class certification of UCL and CLRA claims predicated on the defendant's violation of certain Vehicle Code provisions. Medrazo v. Honda of North Hollywood, 166 Cal.App.4th 89 (2008). See this blog post for more on Medrazo.

Finally, the Supreme Court will be handing down its decision this morning at 10:00 a.m. in the Vasquez attorneys' fees case. When it does, the opinion will be available at this link. Time permitting, I will post a summary of the holding later today.

Statement of issue on review in County of Santa Clara v. Superior Court (ARCO)

The Supreme Court has posted its statement of the issue on review in County of Santa Clara v. Superior Court (ARCO), no. S163681. It is short and to the point:

This case presents the following issue: May a public entity retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement?

It is interesting that the issue is specifically stated in terms of the public nuisance cause of action. I've been following this case because of its potential to impact public prosecutor UCL actions. We'll just have to wait (for about two years) and see how broadly the opinion ends up being worded.

This case has been added to my list of pending Supreme Court cases.

BREAKING NEWS: Review granted in County of Santa Clara v. Superior Court (Atlantic Richfield Co.)

Yesterday, the Supreme Court granted review in County of Santa Clara v. Superior Court (Atlantic Richfield Co.), no. S163681. This is the case in which the Court of Appeal held that public entities may hire outside attorneys to handle "ordinary civil cases" on a contingency-fee basis. County of Santa Clara v. Superior Court (Atlantic Richfield Co.), 161 Cal.App.4th 1140 (2008). The petition for review and other briefs can be found here.

This morning's Daily Journal reports that "High Court to Review Lead Paint Attorney Issue" (subscription). The Recorder reports that "Contingency-Fee Issue Heads to High Court" (subscription). From the Recorder article:

Attorneys on both sides of the battle expressed relief at the court's decision, saying they welcome a ruling deciding the issue once and for all.

"It is a significant issue nationwide and has not been settled," said Santa Clara County Counsel Ann Ravel, whose office originally filed the suit eight years ago. "So it's definitely ripe for the Supreme Court to weigh in with [its] analysis and views."

....

The case ... is heavily lawyered. Forty-two attorneys are listed on the government agencies' side, while the manufacturers show 29 lawyers from 16 law firms nationwide.

Review was granted by five of the seven Supreme Court justices, with Justices Marvin Baxter and Carol Corrigan recusing themselves. Neither said why, but statements filed with the secretary of state reveal that Baxter owns stock in BP Amoco and Corrigan in E.I. duPont de Nemours.

Supreme Court issues "grant and hold" order in Prop. 64 "injury in fact" case: O'Brien v. Camisasca Automotive Mfg., Inc.

On Wednesday, the Supreme Court issued a "grant and hold" order in O'Brien v. Camisasca Automotive Mfg., no. S163207. The order reads:

Petition for Review GRANTED. Further action in this matter is deferred pending consideration and disposition of related issues in In re Tobacco II Cases, S147345, and Meyer v. Sprint Spectrum, LP, S153846 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520(a) is deferred pending further order of the court.

In O'Brien, the Court of Appeal (Fourth Second Appellate District, Division Three) affirmed summary judgment in the defendant's favor, holding that the plaintiff lacked standing to assert UCL or CLRA claims because he did not suffer injury in fact as a result of the defendant's alleged misconduct. The suit challenged the defendant's purported mislabeling of its products as "Made in the U.S.A." O'Brien v. Camisasca Automotive Manufacturing, Inc., 161 Cal.App.4th 388 (2008). My original blog post on O'Brien is at this link.