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« Two more articles on In re Tobacco II | Main | Ninth Circuit strikes down another no-class-action arbitration clause: Laster v. AT&T Mobility LLC »

Thursday, October 29, 2009



Uh, they forgot about the Vasquez analysis too: reliance may be inferred or presumed. Is it now better to plead common law fraud than a UCL deception cause of action if Vasquez does not apply to the UCL?

Arnold Levon

And note that In Re: Tobacco II explicitly quotes the trial court's erroneous decision on commonality: "The trial court found that the 'simple language' of Proposition 64 required that 'for standing purposes, a showing of causation is required as to each class member's injury in fact...[T]he injury in fact that each class member must show for standing purposes in this case would presumably consist of the cost of their cigarette purchases. But significant questions then arise undermining the purported commonality among the class members, such as whether each class member was exposed to Defendants' alleged false statements and whether each member purchased cigarettes 'as a result' of the false statements. Clearly...individual issues predominate, making class treatment unmanageable and inefficient."

It was, in part, this trial court decision on commonality that was reversed--so, quite obviously, the commonality issue was front and center in In Re: Tobacco II (indeed, it was what made In Re: Tobacco II relevant to begin with; i.e., do reliance/causation issues destroy commonality and therefore class certification?). In other words, the standing issue was relevant primarily because of commonality questions.

Very, very poorly reasoned opinion. I cannot imagine it not being depublished.

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