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Friday, January 22, 2010


Kevin Underhill

A good analysis, as always, and congratulations on your front-page coverage the other day! Well-deserved.

Just to give the defense point of view, though, I am puzzled as to how this line of cases is consistent with the Prop 64 requirement that the class rep must comply with CCP 382. I think we would agree that reliance and injury are "elements of a UCL claim" at least as to the class rep. If we do agree on that, then how can they be "irrelevant to class certification" since CCP 382 also applies? The court has to consider whether the rep's claims are typical of the claims of those he or she represents, so if the rep's claims include these elements, aren't they relevant to certification? The Steroid Products case doesn't address this issue.

Whatever the ultimate answer turns out to be on this issue, thanks for continuing to crank out this great blog. Glad to see you getting some coverage in the print media too.

Kevin Underhill

Comment to my comment -- I know this recent coverage was not your first by any means. I meant, "I'm always glad to see it."

Kimberly A. Kralowec

Thanks, Kevin!

Reliance and injury are irrelevant to class certification because neither the class representative nor the class members must prove them to establish the defendant's liability at trial. They are not elements of a UCL claim. Therefore, to grant certification of a UCL claim, there is no reason to consider whether common questions predominate on any hypothetical reliance or injury elements. That is why the courts' analyses in Weinstat and Steroids (and, for that matter, Tobacco II itself) ended where they did.

The class representative must prove reliance and injury to have standing, but that does not have anything to do with what the class members have to prove. Proving whether the individual class representative personally relied or suffered injury does not raise any broadly non-common questions, because only that one person has to prove those elements. That can easily be done through a declaration or deposition testimony from the class representative.

For class certification purposes, the question is what will have to be proven at trial by the class to establish the defendant's liability. Neither reliance nor injury need be proven.

As for typicality, the class representative's UCL claim is identical to the class members' UCL claims. The claim does not include reliance or injury as elements.

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