The UCL Practitioner

“The Unfair Competition Law After Proposition 64: The Supreme Court Speaks”

The Fall/Winter 2006 issue of Competition, the journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, recently arrived in the mail. It has an interesting article by Kevin K. Green of Lerach Coughlin entitled “The Unfair Competition Law After Proposition 64: The Supreme Court Speaks,” 15 Competition 37 (2006). The article “dissects the Supreme Court’s analysis in Mervyn’s and Branick, with an eye to how these decisions are likely to affect unfair competition and false advertising litigation going forward.” Id. at 38. The article analyzes the opinions in light of insights gathered while the author attended the oral arguments, and also addresses the Court of Appeal’s opinion in Pfizer.

One of the issues the article addresses is why the Supreme Court did not rely on the "statutory repeal rule." Every single Court of Appeal panel that held that Prop. 64 applies to pending cases relied on that so-called "rule." Yet, those of you who attended the Supreme Court oral argument (or read my report of it) may recall that the justices did not ask a single question during counsel's presentations on that "rule." The article offers these thoughts:

Although many lower courts felt duty-bound to apply the repeal notion as they perceived it, the Supreme Court, taking a global view, seemed to view the matter from a different vantage point. The justices may have been concerned foremost with maintaining consistency in the rules and presumptions governing statutory interpretation. The most recent high court pronouncements in this area have emphasized the presumption of prospectivity. A reinvigorated repeal rule might have created a confusing cross-current in modern Supreme Court precedent on the retroactive effect of statutes.

For all these reasons, the procedural/substantive approach (although itself an imperfect dichotomy) seems to have been a less controversial anchor for the Mervyn's outcome. The justices found common analytical ground in what is, for purposes of future UCL litigation, a more sweeping rationale for the decision. Summing up statutory amendments as either "procedural" or "substantive" generates waves through UCL doctrine after Proposition 64, in contrast to the ripples that might have flowed from a conclusion that the new standing rules are a statutory repeal.

Id. at 41 (footnote omitted).

The article also poses and answers some interesting questions relating to Branick's holding that leave to amend may be granted:

For example, what proceedings are required in a case that has already gone to judgment in favor of an unaffected plaitniff who had standing to enforce the UCL on behalf of the "general public" before Proposition 64? The Supreme Court accepted on a grant and hold basis at least two cases fitting this description. Must the judgment be vacated, and if so, may it be reinstated following further proceedings in superior court under Proposition 64? The logic of Mervyn's suggests an answer. If the new plaintiff seeks to enforce the same liability against the defendant, based on the same asserted misconduct, then nothing should impede entry of a new judgment after the plaintiff substitution. A retrial of the same facts would be pointless and wasteful. Although apparently scant, there is authority allowing a judgment for the plaintiff to be reinstated following proceedings found necessary only after the judgment was entered. A plaintiff substitution due to Proposition 64 is in this category.

Id. at 44 (footnotes omitted).

Next, the article tackles Pfizer, convincingly arguing that Proposition 64 does not require proof that all class members suffered an injury in fact; did not eviscerate the "likely to deceive" formulation of the UCL's "fraudulent" prong; and did not add a reliance element to a UCL claim. Id. at 45-49. The article then invokes the statutory-interpretation principle that "'[a] statute will be construed in light of common-law decisions, unless its language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning the particular subject matter ...' Put another way, '[t]here is a presumption that a statute does not, by implication, repeal the common law. Repeal by implication is recognized only when there is no rational basis for harmonizing two potentially conflicting laws.'" Id. at 50 (quoting California Assn. of Health Facilities v. Department of Health Services, 16 Cal.4th 284, 297 (1997)). The article then argues:

Nothing in Proposition 64 "clearly and unequivocally" signals any intent to relegate to history nearly thirty years of UCL precedent on liability standards. Likewise, there is a more than "rational basis" for reconciling this precedent with Proposition 64. Of course, the person bringing the suit must meet the new standing requirements set forth in Business and Professions Code sections 17203, 17204 and 7535. This provides the accountability the voters sought in private UCL litigation. They declared that unaffected plaintiffs no longer have a key to the courthouse. But nothing indicates that the electorate meant to take the far more dramatic step of overhauling the established standards for proving a UCL cause of action. Again, section 17200 was not amended. Fully consistent with the letter of Proposition 64 and its stated goals, the defendant's liability to the represented group is proved under the familiar prongs and accompanying judicial articulations reaffirmed by the voters.

Id. at 50.

The article concludes by quietly calling the Supreme Court to action:

Because there is a wealth of Supreme Court case law fleshing out the UCL, Proposition 64's impact on proving a UCL claim directly impacts the viability of the court's own precedents. As before Proposition 64, the Supreme Court can be expected to have a central role in shaping UCL doctrine, especially if its precedents are called into question by lower courts as in Pfizer.

Id. at 51. I agree there is little reason why the Supreme Court should not step up to the plate now, grant review in Pfizer and/or In re Tobacco, and examine the continuing validity of its precedents sooner rather than later. The article as a whole is very good and worth reading in its entirety.

Supreme Court considering expedited review of In re Tobacco II Cases

Last Thursday, October 26, 2006, the Supreme Court issued the following order in In re Tobacco II Cases, no. S147345:

The request for an extension of time to file the answer to the petition for review, filed on October 25, 2006, is hereby denied. Because the Court is considering the possibility of acting upon the petition for review on an expedited basis, any answer to the petition for review must be filed in the San Francisco office of the Supreme Court by 12:00 p.m. on Monday, October 30, 2006. Filing may be effected by transmitting a copy of the answer by facsimile to the Clerk's Office in the Court's San Francisco office.

(Emphasis added.) In In re Tobacco II Cases, ___ Cal.App.4th ___ (Sept. 5, 2006), the Court of Appeal (Fourth Appellate District, Division One) affirmed an order decertifying UCL and CLRA claims for class treatment after Prop. 64. The answer to the petition for review was filed today, as ordered. I do not have a copy of either the petition for review or the answer, and would be grateful to anyone who is able to forward either or both of those documents.

"Making the Most of Appellate Oral Argument"

The latest installment of Howard Bashman's monthly appellate practice column for Law.com is available at this link. This month's column begins, "An experienced appellate advocate once remarked that there are three versions of every appellate court oral argument: the oral argument that the advocate planned to deliver; the oral argument that the advocate actually delivered; and the oral argument that the advocate wished he had delivered."

Unpublished class certification opinion now published: Aguiar v. Cintas Corp. No. 2

Yesterday, the Court of Appeal (Second Appellate District, Division Seven) published its previously-unpublished class certification opinion, Aguiar v. Cintas Corporation No. 2, ___ Cal.App.4th ___ (Sept. 27, 2006). Last week, on October 18, I put up this post explaining why I thought the opinion merited publication, but unfortunately the opinion came to my attention too late to do anything about it. Luckily, others acted more quickly and had already filed publication requests. According to the docket, publication requests were filed on October 13 and 17. The docket also indicates that the Court of Appeal denied the defendant/respondent's petition for rehearing. For more on the opinion, which could become one of the leading cases on subclassing, see my original post.

UPDATE: This morning's Los Angeles Times reports that "Cintas workers can sue as a class." Interestingly, this blog post got picked up by Google Finance, which sometimes happens when I report on a decision with the name of a publicly-traded company in it.

Illinois Supreme Court joins New Jersey and California in invalidating "no class action" arbitration clause: Kinkel v. Cingular Wireless

The Illinois Supreme Court recently invalidated a "no class action" arbitration clause, holding that the clause was unconscionable (but severable from the rest of the arbitration language). Kinkel v. Cingular Wireless, Inc., ___ N.E.2d ___ (Ill. Oct. 5, 2006). In so holding, the court joined the New Jersey and California Supreme Courts, both of which have reached similar conclusions. The opinion also cites several California Court of Appeal opinions. Consumer Law & Policy Blog has a more detailed summary of the opinion at this link.

New Seventh Circuit CAFA decision: Santamarina v. Sears, Roebuck & Co.

In Santamaria v. Sears, Roebuck & Co., ___ F.3d ___ (7th Cir. Oct. 19, 2006), the Seventh Circuit (Judge Posner) affirmed an order remanding a pre-CAFA action to California state court, where it was originally filed. The case was MDL'd to the Northern District of Illinois after a federal judge in California denied plaintiffs' motion to remand. On reconsideration, the federal judge in Illinois remanded the case back to California state court, and the defendant appealed to the Seventh Circuit. The Seventh Circuit held that the federal judge in Illinois had the power to reconsider the California judge's ruling, then held that filing an amended complaint adding two new class representatives as plaintiffs did not "kick off a new action" for CAFA purposes. In reaching the latter conclusion, the Court interpreted California law governing whether a later-filed action "relates back" to the original filing date (a rule that comes up mainly in the context of statute of limitations analyses). [Hat tip: How Appealing.]

UPDATE: For more on the Santamaria decision, see this post at Consumer Law and Policy Blog.

Petition for review filed in In re Tobacco II Cases

On October 13, 2006, a petition for review was filed challenging the Court of Appeal's opinion in In re Tobacco II Cases, ___ Cal.App.4th ___ (Sept. 5, 2006). In that opinion, the Court of Appeal affirmed an order decertifying UCL and CLRA claims for class treatment after Prop. 64. Here is a link to the Supreme Court's docket. My original post on In re Tobacco II is here.

"They pay but deny any guilt"

Columnist David Lazarus of the San Francisco Chronicle addressed class action settlements in his column last week. In particular, he addresses defendants' refusal to admit to any wrongdoing in the context of class action settlements. I was surprised to read a non-lawyer's take on no-admission-of-liability settlement provisions. He's probably not aware that such provisions are common in all settlement agreements, not just class action settlements. Some of our lawyer brethren did a good job explaning why this is so:

Bill Audet, a San Francisco attorney who specializes in representing consumers in class-action lawsuits, said settlements are like elaborate kabuki performances -- carefully choreographed to convey meaning through action or nuance.

"Any time money gets paid, someone is being held accountable," he said.

Audet said companies are free to "spin their PR machines" after a settlement, but most people understand that a multimillion-dollar payout generally means there was some truth to the charges in the case.

"Most class members would say they'd like to see some accountability," he said, "but the dollar talks."

New Third Circuit CAFA opinion also holds that "less" is "more": Morgan v. Gay

On Monday, the Third Circuit joined the Ninth, Tenth and Eleventh Circuits in holding that "less" is "more" when it comes to CAFA's appellate filing deadline. Morgan v. Gay, ___ F.3d ___ (3d Cir. Oct. 16, 2006). [Hat tip: How Appealing]

UPDATE: Consumer Law & Policy Blog has an interesting and more detailed discussion of the Morgan decision.

UPDATE: The Legal Intelligencer reports that "Less Means More: 3rd Circuit Fixes Congressional Typo."

Unpublished class certification opinion: Aguiar v. Cintas Corp. No. 2

The Second Appellate District, Division Seven, issued an unpublished class certification opinion a couple of weeks ago. Aguiar v. Cintas Corporation No. 2, case no. B182477 (Sept. 27, 2006). The opinion should have been published for a couple of reasons. First, it is one of the only post-Sav-on opinions in which an appellate court reversed an order denying class certification after applying the deferential standard of review governing findings of fact, as set forth in Sav-on. Second, its discussion of subclasses goes farther than any other published opinion. Many published opinions state that subclassing is possible and even encouraged, such as Richmond v. Dart Industries, Inc., 29 Cal.3d 462 (1981); Vasquez v. Superior Court, 4 Cal.3d 800 (1971); and Hicks v. Kaufman & Broad Home Corp., 89 Cal.App.4th 908 (2001). Aguiar cites all of these opinions (slip op. at 13), then goes on to provide concrete examples of the kinds of subclasses that can be certified, and to explain how subclasses would operate at the trial court level. For example, the opinion says that once several subclasses have been certified, leave to amend the complaint may be sought to ensure that a proper representative of each subclass is joined as a named plaintiff. Slip op. at 17. No published opinions go into this kind of detail on subclasses. For these reasons, the opinion merits publication under Rule of Court 976(c).

Petition for writ of mandate filed in class member communication case: Conley v. Phillips-Van Heusen, Inc.

Many thanks to the reader who wrote to advise that a petition for writ of mandate was recently filed with the Court of Appeal (Second Appellate District) in a case involving pre-certification communications with putative class members. Conley v. Phillips-Van Heusen, Inc., no. B194038 (petition for writ of mandate filed 09/29/06). The writ petition contains an interesting discussion of these issues from a defense perspective. For more on the recent caselaw addressing pre-certification communications with putative class members, see these blog posts.

New class certification decision: Alvarez v. May Department Stores

In Alvarez v. May Department Stores Co., ___ Cal.App.4th ___ (Oct. 11, 2006), the Court of Appeal (Second Appellate District, Division Four) addressed the interplay between the doctrine of collateral estoppel and class certification orders. The Court determined that a prior order denying class certification, which was final and had been affirmed on appeal, was binding in a later action, brought by a different plaintiff, but seeking certification of an identical class and identical claims.

Because collateral estoppel requires "balanc[ing] the rights of the party to be estopped against the need for applying collateral estoppel in the particular case" (slip op. at 8), the conceptual issue the Court grappled with was the nature of the rights of unnamed putative class members:

The initial question we must answer is the following: What is the precise nature of appellants’ right at issue here? Our decision will not eliminate appellants’ substantive right to bring their lawsuit. Instead, it could potentially deny them the ability to serve as a representative of other litigants. The distinction may be crucial when we balance appellants’ due process rights against the competing interests promoted by the doctrine of collateral estoppel. If the right to proceed as a class plaintiff is a property right, we must keep in mind the general principle “in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” (Hansberry v. Lee (1940) 311 U.S. 32, 40 (Hansberry).)

Slip op. at 8. The Court concluded that the right to act as a class representative is not a substantive, property right. Slip op. at 9-12. The Court cited, among other decisions, Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal.4th 223 (2006), in which the Supreme Court held, in the context of a non-class, representative UCL action, that “the interest in suing on another’s behalf is not a property right beyond statutory control.” Slip op. at 9. It then held:

Appellants give no reason why a class plaintiff has any greater right to serve as a representative than a shareholder in a derivative action or a representative of the public in an unfair competition suit. That appellants cannot is not surprising. There is no such right. We conclude that there is a distinction between using a prior ruling to bar a litigant from receiving a hearing on the merits and applying a prior decision to prevent a litigant from proceeding as a class representative.

Slip op. at 9-10. The Court then turned to the facts of the case before it. It held that the prior order denying class certification, which was affirmed on appeal in an unpublished decision called Duran, barred the subsequent effort to seek class certification:

The Duran complaint and the TAC allege respondent engaged in the same general misconduct concerning the same policies and procedures. Both complaints allege the misconduct took place during approximately the same time period. The parties sought certification of the same class of employees. In fact, in the trial court, appellants conceded that the class in the Duran action included, by definition, appellants. The Duran plaintiffs and appellants sought class certification using the same attorneys and there is no allegation that the representation provided to the plaintiffs in Duran was inadequate. Although the causes of action are not identical, the principle of collateral estoppel does not depend on the legal theory used but the primary right asserted. (Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 992; Johnson v. American Airlines, Inc. (1984) 157 Cal.App.3d 427, 432.) The primary right asserted in each case was the right to litigate claims in a class action lawsuit. ....

In analyzing the facts, we conclude the Duran plaintiffs were the “virtual representatives” of appellants. The only difference we can discern between the parties is the name of the representative plaintiff. The interested parties, their claims, and their counsel are the same. We also examine whether the first party had the same interest as the precluded party and the motive to present the same claim. (Clemmer [v. Hartford Ins. Co. (1978)] 22 Cal.3d [865,] 877.) The Duran plaintiffs had a strong motive to assert the same interest as appellants, as each group’s goal was identical--each wanted its class certified. As noted, the Duran plaintiffs had a full opportunity to present their case. The circumstances are such that appellants should reasonably have expected to be bound by the Duran decision. As appellants would have enjoyed the fruits of a favorable outcome, fairness dictates that they should be bound by the effect of the decision against them. Ultimately, applying the doctrine of collateral estoppel does not lead to an unfair result, as appellants remain free to litigate the merits of their personal claims.

Slip op. at 12-14.

The outcome in this case seems largely driven by the fact that some of the same attorneys filed both actions. The opinion repeatedly references this fact, and goes out of its way to hold that "similarity of counsel" (whatever that means) "is one factor that may be considered on the issue of whether a non-party's interest was truly represented in the first lawsuit." Slip op. at 13. It would be difficult for attorneys to argue that they themselves did not adequately represent the putative class in the original lawsuit, which is what this decision seems to require for class certification ever to be re-raised in a later case. The only other relevant factor the decision identifies is the possibility that new evidence has been developed. Id. ("Appellants do not argue that there is any evidence or argument that the Duran plaintiffs failed to present.").

The Court's reliance on the identity of counsel as, in effect, the deciding factor in whether collateral estoppel will apply may have unintended effects. One possible effect is to encourage copycat actions filed by other attorneys who did not do the work to develop the evidence of substantive wrongdoing in the first place. Copycat actions are common, as experienced class action litigators know. In those actions, it seems, the parties will be allowed to re-litigate whether class certification is appropriate, while the lawyers who personally satisfied their pre-lawsuit invesigation duties will have one, and only one, shot at class certification. That is not entirely fair given that defendants have many opportunities before trial to try to decertify the class. The opinion also interferes with the putative class members' right to retain counsel of his or her choice. To avoid the collateral estoppel problem as articulated in this opinion, the putative class member will have no choice but to retain different attorneys. It is also very ironic that a trial court's holding that common questions did not predominate among the putative class members can be converted through collateral estoppel into a ruling that all of the putative class members are similarly situated.

The opinion then addresses whether the legal issues were the same in both Duran and the later-filed case, or whether any changes in law made application of collateral estoppel inequitable. Plaintiffs argued that Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319 (2004), which was decided after Duran, changed the standards governing class certification. The Court of Appeal did not think so:

They are incorrect. The Sav-On court resolved the question of “whether the trial court abused its discretion in certifying as a class action this suit for recovery of unpaid overtime compensation.” (Id. at p. 324.) The court evaluated the evidence presented in the trial court and did not change the standards for class certification, citing Lockheed Martin Corp.[ v. Superior Court (2003)] 29 Cal.4th 1096, 1106, which had recently reviewed those standards. (Sav-On at p. 326.) The Lockheed Martin Corp. case was the law relating to class certification standards when the Duran court affirmed the trial court’s order denying certification.

Actually, while Sav-on did not change the standards that the trial courts apply when ruling on class certificaiton, it did clarify the standard of review that the Court of Appeal is to apply to the trial court's factual findings. That probably would not have affected the outcome in Duran, however, because Sav-on clarified that the standard of review was more deferential than previously thought.

The opinion concludes with the observation that:

[I]f appellants are correct, every motion denying class certification could be relitigated until the desired result was reached. The losing class plaintiff could merely insert the name of a different individual to be the potential class representative. When appellants’ counsel was asked in oral argument when the string of unsuccessful lawsuits would end, his answer in essence was--when the pursuit is no longer economically feasible. .... It is manifestly unfair to subject respondent to a revolving door of endless litigation.

Slip op. at 16-17. The problem is that this opinion, with its emphasis on the identity of the counsel who filed the actions, will not close the revolving door. It does nothing to prevent copycat actions filed by new attorneys who can argue that the prior lawyers failed to adequately represent the putative class. The opinion is quite clear that under such circumstances, the doctrine of collateral estoppel would not apply. The opinion also encourages the filing of successive individual lawsuits (which, after all, may be entirely meritorious). And what really closes the door on the filing of "endless" lawsuits is the statute of limitations, not collateral estoppel.

The lesson for the attorneys who filed the original action is to make sure that adequate discovery is conducted before moving for class certification, to seek reconsideration when appropriate, to move to amend the complaint to substitute class representatives when necessary, and to file appropriate motions for certification of any available subclasses—all within the original action.

Three years and counting

Time flies when you're having fun. I created The UCL Practitioner three years ago this week.

Mervyn's set for further oral argument on remand to Court of Appeal

The First Appellate District, Division Four has scheduled Californians for Disability Rights v. Mervyn's for a further oral argument on November 7, 2006 at 9:30 a.m., allowing ten minutes per side. The argument apparently relates to CDR's request to substitute parties on appeal. For more discussion of that issue, see this blog post.

New UCL/CLRA decision: Aron v. U-Haul Company

In Aron v. U-Haul Company, ___ Cal.App.4th ___ (Oct. 3, 2006), the plaintiff filed a putative class action alleging that U-Haul violated the UCL and CLRA by: (a) charging a $20 "refueling fee" even though it does not actually refuel its rental trucks, but simply re-rents them with whatever gas the previous customer left in the tank; (b) charging $2 per gallon for "fuel estimated to have been used, but not replaced, by the customer," but relying solely on the trucks' inexact gas gauges to quantify the customer's fuel usage; and (c) failing to reimburse customers who return the rental trucks with more gas than they started out with.

The trial court granted U-Haul's motion for judgment on the pleadings. The Court of Appeal (Second Appellate District, Division Seven) reversed. Its opinion contains the following holdings of note:

1. The Court treated the "injury in fact" requirement as a standing requirement under Mervyn's, rather than as a substantive change: "Because the allegations set forth a basis for a claim of actual economic injury as a result of an unfair and illegal business practice, Aron has standing." Slip op. at 4-5. That is where both Pfizer and Tobacco went astray.

2. The Court interpreted the Cel-Tech "safe harbor" and found that "the power to create and define an exception to the UCL is committed to the Legislature. .... Courts thus may not create 'implied safe harbors.'" Slip op. at 6 (citing Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924, 940 n.5 (2004)). The Court then held that "imposition of a charge for a service [the defendant] does not provide" can constitute an "unfair" practice under the UCL and also violates the CLRA, specifically Civil Code section 1770(a)(4). Slip op. at 8. The Court did not distinguish between the pre- and post-Cel-Tech formulations of unfair.

3. The Court applied the ordinary "likely to deceive" formulation of the UCL's "fraudulent" prong, as well as the "reasonable consumer" standard:

   To state a cause of action under consumer protection statutes designed to protect the public from fraudulent or deceptive representations, the plaintiff must demonstrate that “‘members of the public are likely to be deceived.’ [Citations.]” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211.) .... We find that Aron has alleged facts sufficient to show that U-Haul’s representations would be misleading to a reasonable consumer because there is no connection between the imposition of a fee or cost and whether the customer has in fact refueled the vehicle. “A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable.” (Day v. A T & T Corp. (1998) 63 Cal.App.4th 325, 332-333.)

   Slip op. at 9-10. Again, the Court stayed true to Mervyn's by narrowly interpreting the new standing language so as not to alter the substantive law.

4. The Court interpreted the "geographic origin" subdivision of the CLRA, which prohibits "[u]sing deceptive representations or designations of geographic origin in connection with goods or services." Civ. Code §1770(a)(4). The Court held that the words "representations" and "designations" both modify the term "geographic origin," so to state a claim for violation of this subdivision, "a plaintiff must allege facts that show the deception relates to geographic origin." Slip op. at 10-11.

5. The Court held that the alleged misconduct does not amount to an "unconscionable business practice" under the the CLRA. Civ. Code §1770(a)(19). While the conduct may be unfair and unreasonable, it is not "harsh" or "oppressive" and does "not shock the conscience as a matter of law." Slip op. at 11-13.
   

"How Many Issues Should You Raise on Appeal?"

Howard Bashman's Law.com column this month is called, "How Many Issues Should You Raise on Appeal?" Some jurisdictions require a more formal statement of the "issues on appeal" than California does, and the article is primarily focused on those jurisdictions. Still, it is important for any appellate practitioner to carefully select the arguments to pursue most vigorously on appeal, which often means deemphasizing or even omitting your weaker arguments.

New UCL/CLRA preemption decision: Hood v. Santa Barbara Bank & Trust

Last week, the Court of Appeal (Second Appellate District, Division Six) handed down another preemption decision. Hood v. Santa Barbara Bank & Trust, ___ Cal.App.4th ___ (Sept. 28, 2006) holds that the National Bank Act and implementing OCC regulations did not preempt the plaintiffs' UCL, CLRA and other state-law claims. One justice filed a dissenting opinion.

New class action arbitration decision: Cohen v. DirecTV

In Cohen v. DirecTV, Inc., ___ Cal.App.4th ___ (Sept. 18, 2006), the Court of Appeal (Second Appellate District, Division Eight) affirmed the trial court's order denying the defendant's motion to compel arbitration of the plaintiff's CLRA and UCL class claims, holding that the no-class-action arbitration provision was unconscionable under Discover Bank v. Superior Court, 36 Cal.4th 148 (2005). [Hat tip: Consumer Law & Policy Blog]