Monday, February 8, 2010

Second District, Division Four, Disagrees With Division Eight’s Opinion in Cohen v. DIRECTV

On February 8, 2010, the Second District, Division Four, issued a modification of its opinion in Steroid Hormone Product Cases (previously discussed here), to include discussion distinguishing its opinion from prior opinions Cohen v. DIRECTV, Inc., 178 Cal.App.4th 966 (2009) and In re Vioxx Class Cases, 180 Cal.App.4th 116 (2009). Significantly, as reflected by the highlighted discussion below, the Court overtly stated disagreement with the conclusion in Cohen that a trial court may consider absent class member reliance when certifying UCL claim under the fraudulent prong:
In discussing the UCL claim, the appellate court [in Cohen] noted that Tobacco II, supra, 46 Cal.4th 298, was irrelevant to class certification because it addressed only the issue of standing, and did not instruct “our state’s trial courts to dispatch with an examination of commonality when addressing a motion for class certification.” (Cohen, supra, 178 Cal.App.4th at p. 981.) The court then concluded that the trial court’s concern that the plaintiff’s UCL and CLRA claims would involve individual factual issues regarding class members’ reliance on the alleged misrepresentations “was a proper criterion for the court’s consideration when examining ‘commonality’ in the context of the subscribers’ motion for class certification, even after Tobacco II.” (Ibid.)
We agree that Tobacco II did not dispense with the commonality requirement for class certification. But to the extent the appellate court’s opinion might be understood to hold that plaintiffs must show class members’ reliance on the alleged misrepresentations under the UCL, we disagree. As Tobacco II made clear, Proposition 64 did not change the substantive law governing UCL claims, other than the standing requirements for the named plaintiffs, and “before Proposition 64, ‘California courts have repeatedly held that relief under the UCL is available without individualized proof of deception, reliance and injury.’ [Citation.]” (Tobacco II, supra, 46 Cal.4th at p. 326.).
Slip Opinion, at 2.

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