Last week's Recorder (6/21/06 issue) had an interesting article (subscription required) on a case raising a question of first impression involving the opt-out process in California class actions. The case is pending in San Francisco Superior Court before the complex litigation judge, Richard A. Kramer. A brief excerpt:
A class action and an unfair competition suit, which have been coordinated before a San Francisco judge for more than a year, both accuse Wyeth of squelching competition to its drug Premarin, which treats hot flashes and other symptoms of menopause.The article goes on to note that Judge Kramer's tentative ruling was that "a class member such as Sullivan should still be able to opt out at this point in the litigation — if her lawyers can demonstrate good cause, and if they can show that letting her proceed separately now would not prejudice 'the class action process.'" Further briefing has been ordered and a continued hearing set for August 1, 2006. In re Premarin Cases, JCCP No. 4389.Plaintiff Carol Sullivan brought her own action against Wyeth in San Diego, after the San Francisco suit was already filed but before it was certified as a class action. Now, pouncing on the fact that she never sent a letter to specifically exclude herself from the San Francisco class action, the drugmaker is trying to persuade the court here to throw out Sullivan's lawsuit.
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Since California case law hasn't addressed whether the pursuit of a separate lawsuit should be considered an adequate substitute for following the court's opt-out instructions for class actions, both sides' arguments so far have been peppered with federal citations. ....
UPDATE: The Legal Reader has a more lengthy excerpt from the Recorder article in a post titled "Premarin Suit May Lead to New Opt-Out Rule."
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