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« "Class Notice in the Electronic Age" | Main | Another new opinion interpreting Tobacco II: Princess Cruise Lines, Ltd. v. Superior Court (Wang) »

Tuesday, November 10, 2009


Steve Kane

This panel deliberately ignored Sav-on, claiming in Footnote 6 that "it does not appear that plaintiffs raised this argument below," and, instead, followed a line of pre-Sav-on cases from the 19990s which were obviously superceded by Sav-on. The panel also claimed that the plaintiffs failed "to propose below how litigation of damages could be handled in a manageable fashion" and this failure barred certification. Clearly, the adjudication of damages would be handled just as in almost every class action by submission and review of claims. There is nothing exotic about the process which would require the plaintiffs to educate the court on the mechanics. This panel was determined to ignore Sav-on and uphold denial of certification. The same thing happened in Brinker, another 4th District case in which the California Supreme Court granted review. Brinker is just about ready for oral argument and it will be interesting to see if the Supreme Court believes that the 4th District "scorched earth" policy on class actions meets the certification standards of Sav-on and those more recently articulated in Gentry and Tobacco II.

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