The UCL Practitioner

Recent federal decision on classwide reliance: Wiener v. Dannon Co.

In Wiener v. Dannon Co., ___ F.R.D. ___, 2009 WL 383650 (C.D. Cal. Jan. 30, 2009), the court (Judge S. James Otero) held that common questions predominated on plaintiffs' UCL and CLRA claims, which were predicated on alleged misrepresentations about the defendants' products (Activia, Activia Light, and DanActive yogurt). The key question was whether reliance (assuming reliance is an element of these claims) could be established through common proof. The court determined that it could:

It is undisputed that reliance is an element of Plaintiff's causes of action based on breach of warranty, see Williams v. Beechnut Nutrition Corp., 229 Cal.Rptr. 605, 608 (Cal.Ct.App.1986), and the CLRA, see True v. Am. Honda Motor Co., Inc., 520 F.Supp.2d 1175, 1182 (C.D.Cal.2007). As both parties recognize, the issue of whether reliance is an element of Plaintiff's cause of action under the UCL, however, is currently pending before the California Supreme Court, as there is a split of authority on the issue. See Cattie v. Wal-Mart Stores, Inc., 504 F.Supp.2d 939, 947 (S.D.Cal.2007) (noting split of authority but finding that, with recent Proposition 64 reforms, the UCL now requires reliance); Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1137-39 (C.D.Cal.2005) (declining to read a reliance requirement into the UCL); In re Tobacco II Cases, 146 P.3d 1250 (2006) (granting petition for review on issue of whether UCL requires reliance); Def.'s Opp'n n. 5; Pl.'s Reply n. 7. “Nevertheless, most courts that have confronted this issue since the passage of Proposition 64,” a recent amendment to the UCL, have concluded that the UCL now requires reliance. True, 520 F.Supp.2d at 1182 (internal citations omitted). Although the Court finds the majority view, which requires reliance, more persuasive, see id. at 1182; Cattie, 504 F.Supp.2d at 947-49, the Court need not determine the issue because even if reliance is required under the UCL, an inference of reliance for all class members applies to this case, making class treatment appropriate.

Courts have found that an inference of reliance may be appropriate for claims for violations of the UCL and the CLRA, see True, 520 F.Supp.2d at 1182, as well as for breach of express warranty, see Osborne, et al., 243 Cal.Rptr. at 823. An inference of reliance arises if material misrepresentations were “made to persons whose acts thereafter were consistent with reliance upon the representation.” Occidental Land, Inc. v. Superior Court, 556 P.2d 750, 754 (1976); Osborne, et al. v. Subaru of America, et al., 243 Cal.Rptr. 815, 823 (Cal.Ct.App.1988) (internal citations omitted). For a class action, an inference of reliance arises as to the entire class only if the material misrepresentations were made to all class members. See Vasquez v. Superior Court, 484 P.2d 964, 973 (1971) (“It is sufficient for our present purposes to hold that if the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.”); Osborne, et al., 243 Cal.Rptr. at 823 (internal citations omitted). In order for a misrepresentation of fact to be material, the misrepresentation must have “induced the plaintiff to alter his position to his detriment. Stated in terms of reliance, materiality means that without the misrepresentation, the plaintiff would not have acted as he did.” True, 520 F.Supp.2d at 1182 (quoting Caro v. Procter & Gamble Co., 22 Cal.Rptr.2d 419, 433 (1993)). The defendants may introduce evidence to rebut the inference of reliance. Vasquez, 484 P.2d at 973.

In this case, Plaintiff's CLRA, UCL, and breach of express warranty claims satisfy the requirements for an inference of reliance: material representations were made to all potential class members who then, with their purchase of one of the Products, acted in a manner “consistent with reliance upon the representation.” See Occidental Land, Inc., 556 P.2d at 754; Osborne, et al., 243 Cal.Rptr. at 823. Regardless of whether every class member was exposed to Dannon's television, print, and internet advertisements, the record clearly establishes that Dannon's alleged misrepresentations regarding the clinically proven health benefits of the Products are prominently displayed on all of the Products' packaging, a fact that Dannon has never contested. (See, e.g., First Am. Compl. ¶¶ 23-25, 38-39; Def. Dannon Company, Inc.'s Answer Patricia Wiener & Steven R. Berube's First Am. Putative Class Action Compl. ¶¶ 23-25, 38-39; Blood Decl., Ex. 6.) Because, by definition, every member of the class must have bought one of the Products and, thus, seen the packaging, Plaintiffs have succeeded in showing that the alleged misrepresentations were made to all class members. See Vasquez, 484 P.2d at 973; Osborne, et al., 243 Cal.Rptr. at 823. Furthermore, the Court finds that the misrepresentations at issue were material. The record clearly establishes that the characteristic that distinguishes the Products from others on the market is their respective alleged health benefit. (See, e.g., Pl's Mot. 2-11; Def.'s Opp'n 2-3; First Am. Compl. ¶¶ 23-45, 38-39; Blood Decl., Exs. 5-7; Freitas Decl. ¶¶ 3-4; Jove Decl. ¶¶ 2-6.) Dannon has not pointed to any meaningful difference in flavor, serving size, or the like that might influence consumers' purchases. Rather, Dannon's advertisements, promotions, and labels for the Products explicitly and continually emphasize only the health benefits of Bifidus Regularis in Activia and L. Casei Immunitas in DanActive. (See, e.g., Pl's Mot. 2-11; Def.'s Opp'n 2-3; First Am. Compl. ¶¶ 23-45, 38-39; Blood Decl., Exs. 5-7; Freitas Decl. ¶¶ 3-4; Jove Decl. ¶¶ 2-6.) The Court is aware that many factors influence all consumers' purchasing decisions, a point which Dannon emphasizes, yet given that the alleged misrepresentations are the distinguishing characteristic of the Products, the Court finds that these representations induced consumer purchases because without the alleged misrepresentations, there is no reason, even with sales, coupons, or other promotions, to suggest that purchasers would have selected the Products over other Dannon products or similar, generally less expensive, products by other brands. See True, 520 F.Supp.2d at 1182 (quoting Caro, 22 Cal.Rptr.2d at 433). Finally, “the purchases made by plaintiffs were acts consistent with their reliance on” Dannon's alleged misrepresentations regarding the health benefits of the Products. See Occidental Land, Inc., 556 P.2d at 754. Thus, the Court finds that the evidence presently before the Court allows for an inference of reliance in this case. Accordingly, reliance may be established on a common basis.

Id. at *8-*9.  The court denied class certification with leave to substitute a new class representative who satisfied the adequacy requirement.  Id. at *13.

California Channel to televise argument in In re Tobacco II Cases

Yesterday, the Supreme Court granted The California Channel's request for extended media coverage in In re Tobacco II Cases, no. S147345.  The California Channel's website does not mention Tobacco yet, but presumably they will provide coverage on their cable station as well as a live webcast.

Many thanks to the blog reader who informed me of this development and forwarded a copy of the order.

UPDATE:  The Supreme Court issued this press release today confirming that The California Channel will offer a live webcast as well as cable TV coverage:

The California Channel, a public affairs cable network, will broadcast live coverage of the oral argument on many cable stations throughout the state. It also will carry a live streaming Webcast at www.calchannel.com. California Channel reaches 5.5 million viewers statewide.

 

Judge Brick's "Guidelines on Preliminary Approval of Class Action Settlements"

This blog post mentioned that Alameda County Superior Court Judge Steven A. Brick has a handout on preliminary approval motions, including compliance with the Court of Appeal's recent decision in Kullar v. Foot Locker Retail, Inc., 168 Cal.App.4th 116 (2008). 

Many thanks to Mr. Obbard for forwarding Judge Brick's "Guidelines on Preliminary Approval of Class Action Settlements" (Feb. 18, 2009).  Mr. Obbard indicates that the guidelines are "based on similar checklists used by Judge Carl West and other Judges in the complex departments in Los Angeles." 

If anyone has copies of other judges' preliminary approval checklists, please forward them ([email protected]) and I will post them here. 

Class Action issue of CAOC Forum

The January/February 2009 issue of Forum, the magazine of Consumer Attorneys of California, is devoted to the topic of class actions.  It includes these articles: 

• "California Class Action Classics" by Elizabeth J. Cabraser (a must-read for anyone who practices in this area)

• "Class Certification: A Streamlined Procedural Motion or Just Another Bite at the Apple for Defendants to Challenge the Merits of the Case?" by Ingrid M. Evans and David L. Cheng

• "A Tool for Mischief: Preemptive Defense Motions Under BCBG Overtime Cases to Reject Class Certification" by Kimberly A. Kralowec and Kevin K. Green

• "Defense Tactic du Jour: Attacking the Adequacy of Class Counsel" by Lori E. Andrus

• Divide and Conquer: The New Paradigm of Class Action Defense?" by H. Scott Leviant

• "Proving Unconscionability: Recent Developments in California Law" by Claire Prestel

• "Consumer Class Actions in the Wake of Daugherty v. American Honda Motor Co." by Eric H. Gibbs and Geoffrey A. Munroe

The issue also includes a new feature which I hope will repeat in each issue, "Class Action Appellate Report" by H. Scott Leviant, author of The Complex Litigator.  The entire issue will soon be available online at CAOC's website to CAOC members only.  Plaintiffs' attorneys, click here to join CAOC. 

Will Stern's Rutter Group UCL seminar next week in San Francisco and Los Angeles

Every year, Will Stern, author of the leading UCL practice guide, presents a live UCL seminar in conjunction with the Rutter Group.  This year, his co-speakers are Justice H. Walter Crosky of the Second Appellate District, Division Three, and Sharon Arkin, former CAOC president and fantastic appellate brief writer. 

The seminar will take place next Tuesday night, March 3, in San Francisco at the Hotel Nikko and next Thursday night, March 5, in Los Angeles at the Marriott Downtown.  Registration begins at 5:30 and the program runs from 6:00-9:15 p.m.  Click here for more information and to register.

Rehearing petition filed in Meyer v. Sprint Spectrum

On February 17, 2009, a petition for rehearing was filed in the Supreme Court CLRA case, Meyer v. Sprint Spectrum, no. S153846.  The opinion is available here:  Meyer v. Sprint Spectrum L.P., ___ Cal.4th ___, 2009 WL 197560 (Jan. 29, 2009).  See these blog posts for more. 

Thanks to a loyal blog reader, here are copies of the petition for rehearing and an amicus letter filed by eight consumer advocacy groups in support of the petition. 

Under Rules of Court 8.268 and 8.536, the Supreme Court would need to either grant or deny rehearing, or extend its time to do so, within thirty days after the opinion was filed on January 29.  Thirty days from January 29 is Saturday, February 28.  As a practical matter, that means the Court can be expected to take action on or before its conference scheduled for the preceding Wednesday, February 25 -- i.e., in two days.  If the Court takes no action before the thirty-day deadline, the petition is deemed denied. 

UPDATE:  Today (Feb. 23), the Court issued an order giving itself an extension of time, through Wednesday, April 29, 2009, to grant or deny rehearing.   

"Adopting Wikis in Law Firms"

Yesterday, Law.com had an interesting article on how attorneys can effectively use wikis to create a collaborative reference work for their firm. 

Recent federal UCL preemption decision: Lockwood v. Conagra Foods, Inc.

The plaintiffs' claim in Lockwood v. Conagra Foods, Inc., ___ F.Supp.2d ___, 2009 WL 250459 (N.D. Cal. Feb. 3, 2009) is that "defendant engages in misleading conduct by advertising its 'Healthy Choice' pasta sauce as 'all natural' when in fact it includes 'high fructose corn syrup.'"  Id. at *1.  Judge Charles R. Bryer determined that neither the Nutrition Labeling and Education Act nor FDA regulations under the Federal Food and Drug Cosmetic Act preempted this claim. Id. at *1-*6. He also refused to strike the class allegations:

Finally, defendant seeks to strike the class allegations on the ground that a class cannot be certified as a matter of law. Specifically, defendant alleges that each class member must prove reliance on the “all natural” representation and therefore individual questions necessarily predominate.

If a misrepresentation is material an inference of class-wide reliance may be inferred. Mass. Mut. Li[f]e Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1292, 119 Cal.Rptr.2d 190 (Cal.App.2002).  The Court cannot determine on the pleadings whether a class-wide inference is appropriate in this case. Accordingly, defendant's motion to strike the class allegations is denied without prejudice to the Court considering the issue on a fully-briefed and supported motion concerning class certification.

Id. at *6.

Ninth Circuit withdraws opinion in Sullivan v. Oracle Corp. and certifes questions to California Supreme Court

Today, the Ninth Circuit issued an order withdrawing its opinion in Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008), and certifying these three questions to the California Supreme Court under Rule of Court 8.548:

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?

The order issued after the defendant filed petitions for rehearing and en banc rehearing. It is unclear from the order whether the panel opinion will be reinstated if the Supreme Court declines to accept the certified questions, but a second order indicates that the petitions have both been "dismissed as moot." My original blog post on the panel opinion is here.

"Wal-Mart wins chance to block class-action suit"

Saturday's San Francisco Chronicle reported on the Ninth Circuit's order granting en banc rehearing in Dukes v. Wal-Mart (discussed in this blog post from Friday). 

Now that en banc rehearing has been granted, what happens next?  Paragraph (3) of the Circuit Advisory Committee Note to Ninth Circuit Rules 35-1 to 35-3 provides the answer:

(3) Grant of Rehearing En Banc. When the court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. The opinion of the three-judge panel shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

(Emphasis added.) 

In this case, en banc rehearing was granted under Circuit Rule 35-3, which provides for a "limited en banc" court consisting of the Chief Judge plus 10 other judges selected at random by the clerk.  The random selection is to take place on "the working day after" en banc rehearing is granted (here, Tuesday, February 17).  The Ninth Circuit has 27 active judges, so, apparently, this means that the limited en banc panel might not include any of the members of the original three-judge panel (Judges Pregerson, Kleinfeld (who dissented), and Hawkins).  It might also include judges who voted to deny the petition for en banc rehearing (which explains why the vote tally is not disclosed).

It should take at least a few weeks for the newly-chosen 11-judge en banc panel to decide whether to order oral argument or further briefing.  Circuit Rule 35-3 also authorizes, "[i]n appropriate cases," full-court rehearing after limited en banc rehearing.  Wal-Mart is likely to seek full-court rehearing, and/or U.S. Supreme Court review, if the class certification order is again affirmed, so this case will probably be with us for a long time to come. 

"Dan Harris — A Flavorful Blawgger"

Happy Valentine's Day!

Mister Thorne of Set in Style (a blog on legal writing) has an interesting interview with Dan Harris, author of China Law Blog.  The interview has some great advice and thoughts on law blogging.

BREAKING NEWS: Ninth Circuit grants en banc rehearing in Dukes v. Wal-Mart, Inc.

Today, the Ninth Circuit granted en banc rehearing in Dukes v. Wal-Mart, Inc., in which the three-judge panel (with one judge dissenting) affirmed an order granting class certification of plaintiffs' gender discrimination claims under Title VII. Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007). The order granting rehearing reads:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Judges McKeown, Rawlinson and Bybee did not participate in the deliberations or vote in this case.

Supreme Court activity this week: Harper v. 24 Hour Fitness and Kullar v. Foot Locker Retail

This week, the Supreme Court took action in two cases involving class certification issues.  In both cases, it allowed the Court of Appeal opinions to stand:

• The Court denied review in Harper v. 24 Hour Fitness, Inc., 167 Cal.App.4th 966 (2008).  In Harper, the Court of Appeal (Second Appellate District, Division Seven, with one justice dissenting) reversed an order decertifying UCL and FAL claims for class treatment. Here is my original blog post on Harper.
  
• The Court denied a depublication request in Kullar v. Foot Locker Retail, Inc., 168 Cal.App.4th 116 (2008).  There, the Court of Appeal reversed an order granting final approval of a class action settlement, holding that the trial court's factual findings were insufficient respecting the proposed settlement's value, and hence its fairness and adequacy. Here is my original blog post on Kullar.

I have been told that Alameda County Superior Court Judge Steven A. Brick has a handout for litigants on complying with Kullar when filing final approval motions.

New class-certification-related opinion: Cristler v. Express Messenger Systems, Inc.

In Cristler v. Express Messenger Systems, Inc., ___ Cal.App.4th ___ (Jan. 23, 2009; pub. ord. Feb. 11, 2009), the Court of Appeal (Fourth Appellate District, Division One) declined to reverse an order denying the plaintiff's motion to amend the class definition post-certification because, as it turned out post-trial, the denial was neither prejudicial nor a miscarriage of justice. Slip op. at 8-12.

"Hydrogen Bomb"

Professor Linda S. Mullenix of the University of Texas School of Law has an article in today's Recorder on the Third Circuit's recent class certification decision, In re Hydrogen Peroxide Antitrust Litigation, ___ F.3d ___, 2008 WL 5411562 (3d Cir. Dec. 30, 2008). In my original blog post on this case, I pointed out that the standards it enunciates do not reflect California (or even Ninth Circuit) law, but the decision is nonetheless quite interesting.

Chief Justice George recused from panel in In re Tobacco II Cases

According to the Supreme Court's oral argument calendar notice, Justice Eileen C. Moore of the Fourth Appellate District, Division Three, will be sitting in place of Chief Justice George in In re Tobacco II Cases, no. S147345.

A quick Westlaw search shows that Justice Moore has authored a few opinions involving UCL claims in recent years.  In R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327 (2006), for example, she touched on both of the issues on review in Tobacco:

Truck Insurance says that R & B lacks standing, under Business and Professions Code section 17204, to maintain the unfair competition cause of action because it has not alleged that it has “lost money or property as a result of unfair ... competition.” With this assertion, we certainly disagree. R & B alleges that it paid premiums for illusory coverage and it had to make payment on a lemon law claim that it would not have had to pay had the Truck Insurance policy said what it was represented to say. This is an allegation of loss caused by the purported misrepresentations concerning the scope of coverage. The standing requirement is met.

Next, Truck emphasizes that R & B cannot seek injunctive relief on behalf of the general public unless it meets the requirements of Code of Civil Procedure section 382, with reference to class actions. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court....’ The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citation.] The ‘community of interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]” (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Truck Insurance states that R & B may only seek class action injunctive relief if it can demonstrate compliance with these requirements. However, Truck Insurance does not assert that R & B cannot do so.

R & B contends that it can meet the class certification requirements and points us to its offer of proof with respect to the anticipated testimony of Fena, Rusich and Sweet. R & B requests that this court remand the matter so that it will have an opportunity to show that it can satisfy the requirements of Code of Civil Procedure section 382. It is only fair to grant this request, since at the time R & B filed its third amended complaint it was not required to comply with Code of Civil Procedure section 382.

Id. at 360-61.  (Here is my original blog post on R&B.)  The argument in Tobacco will take place on Tuesday, March 3, 2009 at 9:00 a.m. in San Francisco.

New Second Circuit opinion on "no-class-action" arbitration clauses: In re American Express Merchants' Litig.

On January 30, 2009, the Second Circuit refused to enforce a "no-class-action" arbitration clause in a contract between American Express and merchants who accept AmEx cards.  In re American Express Merchants' Litig., __ F.3d ___ (2d Cir. Jan. 30, 2009).  The opinion is noteworthy because the court found the provision unenforceable under federal common law, not state law:

Section 2 of the FAA, 9 U.S.C. § 2, ... provides that an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Section 2 is “the primary substantive provision” of the FAA which “create[s] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the” FAA. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). We join other Circuits that have evaluated arbitration clauses containing class action waivers under the federal substantive law of arbitrability.  [Citations.]

....

We therefore hold that the class action waiver in the Card Acceptance Agreement cannot be enforced in this case because to do so would grant Amex de facto immunity from antitrust liability by removing the plaintiffs’ only reasonably feasible means of recovery.  As already set forth, Section 2 of the FAA, 9 U.S.C. § 2, provides that an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Given that we believe that a valid ground exists for the revocation of the class action waiver, it cannot be enforced under the FAA.

Slip op. at 19-20, 33-34.  The "federal substantive law of arbitrability" includes significant federal common law interpreting the FAA, and that is what the Second Circuit principally relied on in its very thoughtful opinion. 

Recent Fifth Circuit American Pipe tolling decision: Taylor v. United Parcel Service

Class action junkies, take note.  The Fifth Circuit handed down a new opinion on American Pipe tolling just before the end of the year.  Taylor v. United Parcel Service, Inc., ___ F.3d ___ (5th Cir. Dec. 30, 2009).  [Via Wage Law.]

New UCL public prosecutor decision: People v. iMergent, Inc.

In People v. iMergent, Inc., ___ Cal.App.4th ___ (Jan. 20, 2009), the Court of Appeal (Second Appellate District, Division Six) upheld a preliminary injunction prohibiting the defendants from violating the UCL and the Seller Assisted Marketing Plan ("SAMP") Act (Civ. Code §§1812.200 et seq.). The injunction "prohibits defendants from selling their products and services without first complying with the disclosure provisions of the SAMP Act" and Bus. & Prof. Code section 17537.1.  Slip op. at 2.  After devoting several pages of analysis to the argument that certain language in the SAMP Act was unconstitutionally vague, the court concluded:

Defendants assert that the SAMP Act's phrase "will earn, is likely to earn, or can earn" is vague.  Their position brings to mind the response of Senator Sam Ervin, Jr., during the Watergate Hearings of 1973.  When asked how he was sure of the meaning of certain words, Ervin replied, "Because I can understand the English language.  It's my mother tongue."  We can do no better.  We believe that "affirmed" has equal clarity.

Id. at 10 (footnote omitted).

MORE BREAKING NEWS: Oral argument set in CLRA case, Fairbanks v. Superior Court

Thanks to the blog reader who pointed out that yet another case of interest has been set for argument during the first week of March.  In Fairbanks v. Superior Court, no. S157001, the Supreme Court will consider whether insurance is a "good" or a "service" within the meaning of the CLRA.  Fairbanks is set for argument on Wednesday, March 4, 2009 at 9:00 a.m.

The Court of Appeal's opinion is Fairbanks v. Superior Court, 154 Cal.App.4th 435 (2007), and some of the briefs are collected at these links. 

BREAKING NEWS: Oral argument scheduled on Prop. 64 issues in In re Tobacco II Cases

Today, the Supreme Court scheduled the oral argument in In re Tobacco II Cases, no. S147345. The argument will take place on Tuesday, March 3, 2009 at 9:00 a.m. in San Francisco. As I'm sure you all know, these are the issues on review:

(1) In order to bring a class action under Unfair Competition Law (Bus. & Prof. Code, section 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?

Some of the briefs are collected at these links.  I'm planning to attend the argument and provide a report here on March 4th. 

UPDATE:  In other, almost as exciting news, the Supreme Court set oral argument in the Marriage Cases as well. That argument will take place on Thursday, March 5, 2009 at 9:00 a.m. in San Francisco, and it will be broadcast live at The California Channel, which means a webcast will also be available.  I don't yet know if the Tobacco argument will also be on The California Channel.

Deadline to apply for State Bar Executive Committees extended to Feb. 17, 2009

I have been reliably informed that the deadline to submit your application (including letters of recommendation) to become a member of the Executive Committee of the State Bar's Antitrust and Unfair Competition Law Section (as well as the other Sections) has been extended from February 2 to February 17, 2009.  See this blog post for more information. 

UCL/CLRA case filed against Coca-Cola based on alleged misrepresentations about VitaminWater

You may have read news reports (such as this one from Law.com) about the false advertising case recently filed in the Northern District of California against Coca-Cola Co. for its VitaminWater product.  Here is a copy of the complaint.  It contains straight UCL, FAL, and CLRA claims on behalf a putative class of California residents who bought VitaminWater since January 15, 2005. 

The UCL's three prongs (unlawful, unfair and fraudulent) are each pleaded as a separate cause of action (good).  The "unlawful" prong claim is predicated on alleged violations of certain Health & Safety Code provisions (as well as the CLRA). 

The FAL claim is also divided into separate causes of action, one for violation of the "misleading prong" and one for violation of the "untrue prong."  I have never heard that terminology before, but it seems to work.  The FAL prohibits advertising that is "untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Bus. & Prof. Code § 17500 (emphasis added).

The UCL Practitioner now available on Amazon for Kindle users

Those of you with Kindle devices may now subscribe to The UCL Practitioner via Amazon and take the blog with you wherever you go.  Appropriately, I will receive royalties on any such subscriptions (the bargain price is $0.99/mo.).  Sometimes, I think I should turn the entire blog into a paid subscription service.   Of course, I would allow judges and their research attorneys free access. And I would certainly charge more than $0.99/mo.!