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« BREAKING NEWS: Supreme Court to issue Prop. 64 retroactivity opinions on Monday | Main | More thoughts on Branick »

Monday, July 24, 2006


John Hurley

I focused on this same section when I read the Mervyn's opinion this morning.

The particular paragrpah could be deemed to implicitly overrule Pfizer. But on the other hand, Mervyn's and Pfizer deal with two different aspects of the law. Mervyn's dealt with the elimination of private attorney general standing, and Pfizer dealt with adding a causation element. In any event, if Mervyn's impliedly overruled Pfizer, it only did so with respect to that aspect of the decision that added a reliance element to a claim for unlawful business practices. The other aspects of the decision dealing with general class action issues of commonality/typical would appear unaffected.

Although purporting not to decide anything, the Branick case appears to give trial courts wide latitude in allowing amendments to substitute injured plaintiffs for uninjured plaintiffs (and for such amendments to relate back) so long as the amendment doesn't seek to expand the underlying set of factual allegations beyond those in the original complaint.


I think it is a stretch to say it overruled Pfizer. Pfizer styles its own analysis as a procedural rather than substantive issue. I think there is a decent chance that the Supremes will grant review of Pfizer though.

Kevin Snyder

In my view, Mervyn's suggests that the Court would approve Pfizer's conclusion that the class representative and the putative class members must both have suffered an actual injury: "In effect, section 17203, as amended, withdraws the standing of persons who have not been harmed to represent those who have". At the same time, it is hard to argue that the reliance requirement is not a substantive change at odds with the Court's view that "[t]he measure left entirely unchanged the substantive rules governing business and competitive conduct".

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