The UCL Practitioner

Press coverage of Kwikset

Bob Egelko of the San Francisco Chronicle reports that "Customers can still sue over phony labels":

Californians who buy products with allegedly false labels, like "Made in U.S.A.," can sue the manufacturer without having to prove that the product was overpriced or didn't work, the state Supreme Court ruled Thursday.

The Los Angeles Times reports: "Court rules that consumers can sue manufacturers over misleading claims."  The Recorder's article (subscription) is called "Prop 64 Doesn't Bar Deceptive Label Suit, Supremes Say."   The Daily Journal's article has not yet been posted.

Vanderbilt Law Review "roundtable" on Dukes v. Wal-Mart

Vanderbilt Law Review has published an online "roundtable" of articles relating to the Dukes v. Wal-Mart case:

Elizabeth Chamblee Burch, "Introduction: Dukes v. Wal-Mart Stores, Inc.," 63 Vand. L. Rev. En Banc 77 (2010)

Robert G. Bone, "Sorting Through the Certification Muddle," 63 Vand. L. Rev. En Banc 105 (2010)

Alexandra D. Lahav, "The Curse of Bigness and the Optimal Size of Class Actions," 63 Vand. L. Rev. En Banc 117 (2010)

Gregory Mitchell, "Good Causes and Bad Science," 63 Vand. L. Rev. En Banc 133 (2010)

Richard A. Nagareda, "Common Answers for Class Certification," 63 Vand. L. Rev. En Banc 149 (2010)

The roundtable contemplates responses to the first set of articles, so check the Vanderbilt Law Review website later for more. 

[Via]

BREAKING NEWS: Justice Moreno to retire from the Supreme Court

News is breaking that Justice Carlos Moreno tendered his resignation to Governor Jerry Brown yesterday.  According to a post by Scott Graham at Legal Pad, Justice Moreno will depart from the Court in late February. 

Many thanks to the person who forwarded this news. 

UPDATE:  This article from the Recorder has a bit more detail.  It says that Justice Moreno is considering joining a private law firm or ADR firm following his resignation from the Court, which will be effective February 28, 2011.  This means the last group of cases Justice Moreno will hear are those scheduled for argument during the week of February 7.  The February calendar has not yet been anounced. 

UPDATE #2:  The February calendar was just posted.  Arguments will be held on a single date, Tuesday, February 8.  Three non-criminal cases have been set, including one of particular interest:

Baycol Cases I and II, no. S178320 (review granted 02/18/10)

• Issue: Did the "death knell doctrine" require plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or did the one final judgment rule apply and require a single appeal from the subsequent entry of final judgment on all claims?
• Court of Appeal Opinion: Baycol Cases I and II (unpublished) (Oct. 20, 2009)

The San Francisco Chronicle has this story on Justice Moreno's retirement.

News reports on oral argument in AT&T Mobility LLC v. Concepcion

As you might expect, there has been a lot of press coverage of yesterday's argument in AT&T Mobility LLC v. Concepcion.  You can read the transcript for yourself here.  The California Supreme Court's Discover Bank opinion is a central focus of the discussion, as is a mythic "9,000-foot cow."

Here is an excerpt from the Washington Post's report:

But what had been billed as an epic battle played out during the one-hour oral argument more like a law school seminar on contract law: Phrases such as "contract of adhesion," "obstacle preemption" and "unconscionability" dominated the debate.

The justices' questions suggested a more limited ruling on the facts of the specific case rather than the broad decision on class-action suits that the 26 groups submitting friend-of-the-court briefs had addressed.

The arguments also raised questions about states' rights. State and federal courts in California agreed with a state law that said businesses' attempts to ban arbitration class-action suits unfairly tilt the field against consumers. And some justices indicated that the decision should be up to the states.

"Who are we to say that the state is wrong about that?" Justice Elena Kagan asked.

The New York Times reports that "Supreme Court Weighs Class Action Suits."

Dahlia Lithwick's article at Slate is called "Can You Hear Them Now? The Supreme Court reads the fine print on your cell phone contract."  She predicts a consumer win.

In a similar vein, Law.com reports: "Class Actions on the Ropes? Not Likely."

The New York Law Journal believes that "Justices' Comments Offer Hope for Class Action Litigators" (subscription).

ADR Prof Blog has a guest post on the argument by Professor Jean Sternlight of Boyd School of Law at the University of Nevada, Las Vegas. 

Fall 2010 issue of Competition

The Fall 2010 issue of Competition, the journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, is now out, and it has a number of articles of interest to practitioners in our field:

"Outsourcing Justice:  The California Supreme Court's Decision in County of Santa Clara v. Superior Court (Atlantic Richfield)," by William L. Stern and Nicholas A. Roethlisberger

"The Collaboration Between Public Entities and Private Counsel: Prosecuting Cases that Otherwise Might Not Be Brought," by Bruce L. Simon and William J. Newsom

"The Revitalization of a Valuable Cause of Action for Competitors: Clayworth v. Pfizer's Implications for UCL Standing in Competitor Lawsuits," by Matthew K. Wegner 

"The Restitutionary Claim Requirement for Standing Under the UCL: Does Clayworth v. Pfizer End the Debate?" by Daniel K. Slaughter

"The Rise of the 'Private Surgeon General,'" by William L. Stern and Janelle J. Sahouria

Will Stern is great at coining new terms. He is responsible for the term "non-class class," used to describe pre-Prop. 64 UCL representative actions. In his article in Competition, he coins the phrase "private surgeon general action" to describe certain types of false advertising cases against manufacturers of processed foods, herbal supplements, and other household consumables.  The focus of his article is the defense of such actions.

"Courts split on affirmative defenses"

On September 24, 2010, the Wisconsin Law Journal had a short article discussing recent decisions on whether the "heightened pleading standard" of Twombly and Iqbal applies to a defendant's affirmative defenses as well as to the plaintiff's complaint. 

At least two California federal judges have held that it does. Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, ___ F.Supp.2d ___, 2010 WL 2507769 (N.D. Cal. Jun. 22, 2010) (Patel, J.); CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 WL 3517617 (N.D. Cal. Oct. 26, 2009) (Alsup, J.). 

[Via The Legal Reader.]

"California 17200: Its Nature, Function and Limits"

The Summer 2010 edition of the Federalist Society's State Court Docket Watch is entitled "California 17200: Its Nature, Function and Limits."  It has interesting remarks from Will Stern of MoFo (author of the Rutter Group 17200 practice guide), Scott Leviant of Spiro Moss (author of The Complex Litigator), Jeremy Rosen of Horvitz & Levy, and Professor Shawn Martin of the University of San Diego School of Law (author of California Appellate Report), as well as a question and answer session. 

[Via The Complex Litigator.] 

"Defending the Class Action Trial"

Monday's Daily Journal had an interesting Perspective article, "Defending the Class Action Trial" (link not available), by attorney James Donato of Shearman & Sterling in San Francisco.  It begins:

Class action trials. It is probably safe to say that more lawyers have seen a double rainbow or climbed Mt. Everest than have tried a class action case. Most practice guides offer little or no commentary on the unique trial issues that can arise in class cases.

The article goes on to discuss (from a defense perspective, as the title promises) some of those issues, including "how to explain the class action to the jury," "the absence of a strong plaintiff representative at trial," and "the predominance of live witnesses on the defense side."  For plaintiffs' attorneys, the lesson is to be sure you make a strong showing of aggrieved plaintiff-side witnesses. 

BREAKING NEWS: Third District Court of Appeal Justice Tani Cantil-Sakauye Nominated by Schwarzenegger to Supreme Court

Governor Schwarzenegger has just announced his nomination of Third District Court of Appeal Justice Tani Cantil-Sakauye to succeed Ronald M. George as Chief Justice of the California Supreme Court.  Here is the official press release, and here is Justice Cantil-Sakauye's profile.  The Los Angeles Times has this article on the news and the Sacramento Bee has this report. 

The press release says that she attended U.C. Davis School of Law, which is also my alma mater!

Hat tip to Southern California Appellate News, who had it first, and to JM for passing it along.

UPDATE:  Nate Smith of Southern California Appellate News included Justice Cantil-Sakauye on his short list last week based on three factors: (1) Schwarzenegger had appointed her to the Court of Appeal (which addresses his need to make a nomination very quickly); (2) she has court administration experience, having served on the Judicial Council and on various administrative committees; and (3) she is a Republican.  Nice going, Nate! 

Chief Justice Ronald George announces he will retire in January

News is passing across the wire that Chief Justice George has announced that he will not seek reelection in November and will retire in January.

UPDATE:  Here is the Court's official press release.  It says his last day on the bench will be January 2, 2011. 

"Price-Fixing Defense Gets Thumbs Down"

Yesterday's Daily Journal had a story (no link available) by Laura Ernde on Monday's Supreme Court ruling in Clayworth v. Pfizer, Inc., ___ Cal.4th ___ (Jul. 12, 2010).  An excerpt:

The ruling could prompt more retailers to file price-fixing suits against manufacturers of all kinds of products, said Craig Corbitt, a partner in the San Francisco office of Zelle Hofmann Voelbel & Mason. Corbitt wrote a friend-of-the-court brief on behalf of Pharmacists Planning Services Inc. in support of the plaintiffs.

"This now allows intermediaries such as the pharmacies and other retailers who buy from manufacturers and resell to the public to pursue their own claims," he said. "There should be an enhancement of antitrust enforcement in California."

....

The ruling will help consumers pursue class action lawsuits brought under the Unfair Competition Law (UCL), said Kimberly Kralowec of the Kralowec Law Group in San Francisco, who had written a friend-of-the-court brief on behalf of the Consumer Attorneys of California.

The court held that plaintiffs can seek an injunction under the UCL even if they aren't necessarily entitled to restitution, which was in question since the passage of Proposition 64, a 2004 ballot initiative that limited private lawsuits against companies.

"We argued in our amicus brief that a right to get an injunction shouldn't be tied in that way to the right to recover restitution," Kralowec said.

To give credit where credit is due, Pamela Parker of Robbins Geller Rudman & Dowd really should have been mentioned as the person who wrote CAOC's brief. While my name also appeared on the brief, the majority of the work was hers and she did a great job on it.

Yesterday's Recorder also had an article by Mike McKee, "No Pass-0n Defense in California Antitrust Cases" (subscription). 

"Public-Private Suits May Get Justices' OK"

Here is the Recorder's report on yesterday's oral argument in County of Santa Clara v. Superior Court (Atlantic Richfield Co.). 

State Bar's new antitrust and UCL treatise now available

The new edition of California State Antitrust and Unfair Competition Law (LexisNexis 2009), published by the State Bar's Antitrust and Unfair Competition Law Section, is now available and can be ordered here.  It is a thick, hardbound book, with a distinguished list of contributors, and well worth adding to your library.  It is also available through Lexis. 

If you are not a member of the Section, I would encourage you to join.  Also, mark your calendars for the Section's 20th Annual Golden State Antitrust and Unfair Competition Law Institute, which will take place this year on Thursday, October 21 at the Westin St. Francis in San Francisco.  I am the co-chair for the UCL component of this year's program.  If you have ideas for topics you'd like to see covered, please drop me a line.

Tobacco II attorneys receive CLAY Awards

Congratulations to Sharon Arkin, Tom Haklar, Kevin Calcagnie and Mark Robinson on being named 2010 California Lawyer Attorneys of the Year. They are the team who "pulled out a ground-breaking victory in May at the California Supreme Court" in Tobacco II. 

"Getting What You Paid For"

The February 2010 issue of California Lawyer has this article on Kwikset Corp. v. Superior Court (Benson), which is now pending before the California Supreme Court.  The article is by Mark P. Pifko of Arnold & Porter in Los Angeles.

"Lower Courts Chip at Tobacco Ruling"

Yesterday's Daily Journal had an article (subscription) about Cohen and other post-Tobacco II decisions, including quotations from Will Stern, Trent Norris, and yours truly. 

"Class Arbitration After Gentry"

On Tuesday, December 29, 2009, the Daily Journal had a perspective article called "Class Arbitration After Gentry" (subscription).  The article, by Richard L. Kellner and Karen Liao of Kabateck Brown Kellner in Los Angeles, begins:

More than two years have passed since the California Supreme Court decided Gentry v. Superior Court, 42 Cal.4th 443 (2007), which ostensibly opened the door to arbitrations in employment class action[s]. While proponents of class action arbitration rejoiced when the Gentry opinion was issued, the floodgates of class action arbitrations never opened. In all likelihood, that is because questions remain regarding the procedures, scope and implications of class action arbitrations.

"Calif. Contact Lens Class is Certified"

Yesterday's National Law Journal had an article reporting on a recent class certification decision issued by Orange County Superior Court Judge David C. Velasquez in a UCL case.

UPDATE:  Here is a copy of the class certification order referenced in the article.

"When Courts Disagree"

Tuesday's Daily Journal had a "perspective" article, "When Courts Disagree," by H. Scott Leviant, author of The Complex Litigator.  The full text is available there. An excerpt:

The conclusions of the Kaldenbach and Cohen Courts that Tobacco II, a decision in which the California Supreme Court reversed [a] decertification order, raise two important questions. First, is there any evidence that lower courts are disregarding the legal holdings and policy mandates of the California Supreme Court in significant numbers, particularly in the class action context? Second, if there is such an occurrence, why are lower courts disregarding the legal holdings and policy mandates of the California Supreme Court?

UPDATE (11/16/09):  Attorney Trent Norris of Arnold & Porter has a letter to the editor in today's Daily Journal published under the heading "Comment on Judges' Motives is Cheap Shot" (subscription).  Trent was my co-speaker at the Recorder Roundtable on Tobacco II in July and presented (along with Will Stern) the defense perspective on the decision.   

"Class Notice in the Electronic Age"

The November 2009 isse of California Lawyer has this article by Matt C. Bailey.

"The Clash Over Class Actions"

Today's Daily Journal has an article, "The Clash Over Class Actions" (subscription) about class certification issues raised in various cases pending in the Ninth Circuit and federal district courts within the Ninth Circuit. 

While there are a few interesting cases pending in the Ninth Circuit, such as the Dukes case, I think the article is a bit overblown. 

"This Oracle May be Prophetic"

The October 2009 issue of California Lawyer has an interesting article on Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009), in which the California Supreme Court has accepted certified questions relating to the UCL.  See Sullivan v. Oracle, no. S170577 .   An excerpt from the article (by Pamela A. MacLean):

When both sides filed petitions for rehearing, however, the Ninth Circuit backpedaled. In February it withdrew its opinion in Sullivan II [Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)] and certified three questions to the California Supreme Court. First, does state overtime law apply to out-of-state residents who work for a California company inside the state? Second, if state law does apply, can plaintiffs make a section 17200 claim? And third, if a California employer sets policies that violate the FLSA for its out-of-state workers, does a section 17200 claim apply to the federal violation for those employees no matter where they work? (See Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009).)

Lawyers on both sides of the issue say the most significant question is whether section 17200 applies to employees hired by California companies but who work in other states. If the answer is yes, "There could even suddenly be a private right of action under the [federal] prevailing wage statute," says Michael J. Walsh, an employment law specialist with Walsh & Walsh in Irvine who represents employees. Currently, he adds, only the Department of Labor can sue to recover under the prevailing wage provisions of the Davis-Bacon Act, which sets minimum wages on federal projects.

Michael Walsh, of course, is the author of the top California wage and hour blog, Wage Law.

New summary judgment procedure decision: Nazir v. United Airlines, Inc.

This post is slightly off-topic, but the opinion is remarkable and all litigators should read it. In Nazir v. United Airlines, Inc., ___ Cal.App.4th ___ (Oct. 9, 2009), the Court of Appeal (First Appellate District, Division Two) reversed an order granting "what may well be the most oppressive [summary judgment] motion ever presented to a superior court," involving "a record the likes of which we have never seen." Slip op. at 1, 3.

This morning's Recorder has an article by Mike McKee on the opinion (subscription), which begins:

It isn't a good sign when an appeal court refers to a lower court's "ruling" in quote marks as if it's not worthy of the term.

But that's exactly what San Francisco's First District Court of Appeal did — three times — Friday in reversing a "ruling" by San Mateo County Superior Court Judge Marie Weiner in an overpapered case featuring 5,415 pages of briefs.

It's true the panel critized the judge's "ruling," but its criticism of the defendant's briefing — which noted major procedural and substantive defects — was much harsher.

Complaint in Hiestand v. City of Sacramento

Many thanks to the blog reader who forwarded a copy of the complaint filed on August 11, 2009 in Hiestand v. City of Sacramento.  This UCL class action case was discussed in an article in the Recorder last week (see also this blog post). 

This case illustrates an important principle from Tobacco.  There, the Supreme Court held (among other things) that the "as a result of" standing language "imposes an actual reliance requirement" on the individual named class representative in a UCL "fraudulent" prong case.  In re Tobacco II Cases, 46 Cal.4th 298, 326 (2009).  The Court was careful to clarify, however, that this holding was limited to claims "involving false advertising and misrepresentations to consumers," and that "[t]here are doubtless many types of unfair business practices in which the concept of reliance, as discussed here, has no application."  Id. at 326 n.17. 

Hiestand is one of those cases.  The Hiestand complaint alleges (among other things) a UCL "unlawful" prong claim predicated on violation of Vehicle Code section 22651, which reads, in part:

A peace officer ... of a city, county, or jurisdiction of a state agency in which a vehicle is located, may remove a vehicle located within the territorial limits in which the officer ... may act, under the following circumstances:

....

(n) Whenever a vehicle is parked or left standing where local authorities, by resolution or ordinance, have prohibited parking and have authorized the removal of vehicles. A vehicle shall not be removed unless signs are posted giving notice of the removal.

(Emphasis added.)  Because the defendants allegedly removed Mr. Hiestand's vehicle even though no "signs [were] posted giving notice of the removal," in violation of section 22651, and because Mr. Hiestand incurred and paid towing and storage costs, the standing requirement has been satisfied.  Mr. Hiestand lost money or property "as a result of" the defendants' alleged violation of that law.  He therefore has standing to bring a UCL class action in which neither he nor the unnamed class members will have to prove (at trial) actual "deception, reliance [or] injury."  Tobacco, 46 Cal.4th at 320 (citing Bank of the West v. Superior Court, 2 Cal.4th 1254, 1267 (1992); Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 211 (1987)). 

As this case illustrates, it will be important to consider the class representative's standing separate and apart from what must be proven at trial for purposes of liability for a UCL violation.  Tobacco makes clear that, in "fraudulent" prong cases, the "likely to deceive" liability standard is unchanged.  Id.  Moreover, the standard for recovering restitution ("may have been acquired") is also unchanged and is "patently less stringent than the standing requirement."  Id.  The fact that the class representative must establish individual standing therefore should have no impact on the class certification analysis.  In other words, the class certification analysis should be the same now as it was before Prop. 64.

It will be interesting to see how this plays out in the Hiestand case as well as in other cases.  If you are litigating any of these issues at the trial court level, please keep me posted of developments.  I haven't received copies of any relevant rulings in any state court cases yet. 

"Tort Reform Leader Brings Class Action Over Towed Car"

Today's Recorder has this article about a recently-filed UCL class action.  I haven't seen a copy of the complaint yet.  If anyone has it, please forward ([email protected]).  Thanks!

"Class Status Not Needed for Private AG Suits"

Mike McKee has an article (subscription) in this morning's Recorder on the PAGA holding in Arias and Amalgamated, which is being hailed as "a victory for employees." 

This morning's Daily Journal has an article on same topic, "Class-Action Rules Eased by State Supreme Court in Win for Workers." 

More Supreme Court developments

Today, the Supreme Court granted itself an extension of time (through August 14) to grant or deny the petition for rehearing in Tobacco (docket).

Yesterday, the Supreme Court denied review and depublication in the Troyk case (docket).  Justices Baxter, Chin and Corrigan voted to grant review.  An article (subscription) by Mike McKee in yesterday's Recorder discussed this case in more detail. 

Today's Recorder has an article (subscription) about yesterday's grant of review in Kwisket. 

"Consumers win with court's Prop. 64 decision"

Today's San Francisco Chronicle has an editorial on the Tobacco decision and Prop. 64. 

More coverage of In re Tobacco II Cases

The San Francisco Chroncile reported yesterday that "Class-action lawsuit over tobacco ads proceeds."  The article quotes Mark Robinson (who argued on behalf of the plaintiffs in Tobacco) and Will Stern (who authored Prop. 64). 

There has been more law blog coverage since yesterday, with reports on all of these blogs:  California Wage Law, Blawgletter, Class Action Blawg, Point of Law Forum, The Pop Tort, Storm's California Employment Law, Class Action Defense Blog, Rebecca Tushnet's 43(B)log, TortsProf Blog.

Incidentally, on Monday The UCL Practitioner received over 1,000 hits, which blows away my prior single-day record by a substantial margin.  Thanks, as always, to everyone for reading!

"In Loss for Big Tobacco, Calif. Supreme Court Loosens Standing to Sue Under Proposition 64"

In an article in this morning's Recorder, Mike McKee writes: "Big Tobacco and other major businesses took a hit Monday when the California Supreme Court ruled that class actions over alleged fraud can go forward, even if it's impossible to tell whether every plaintiff was harmed by deceptive ads."

And the Daily Journal reports on the "Big Win for Plaintiff's Bar in Class Action Case" (subscription).  Laura Ernde writes:

Consumer class-action lawsuits are alive and well in California after a 4-3 decision Monday from the state Supreme Court that limited the reach of a 2005 voter initiative targeting frivolous lawsuits.

The ruling was a big win for plaintiff's attorneys, who feared the court would make it nearly impossible for them to use the state's unfair competition law to hold businesses responsible for false advertising claims.

The Los Angeles Times reports today that "Calif. top court revives class action against tobacco industry" (with comments from both Will Stern and Sharon Arkin, who are frequent co-speakers on UCL panels).  A short AP article appeared yesterday afternoon on the websites of the San Francisco Chroncile and the Sacramento Bee, and Bloomberg News ran a story. 

In the blogosphere, Cal Biz Lit has two posts on the opinion, and the Consumer Law & Policy Blog has a short report.