Class certification denied to El Torito managers in misclassification suit

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In other news, early reports now indicate that the Pope is Catholic.  Another day, another order denying certification in a misclassification suit is upheld.  More specifically, in Arenas, et al. v. El Torito Restaurants, Inc. (ord. pub. April 6, 2010), the Court of Appeal (Second Appellate District, Division Five) affirmed a trial court order denying certification to three subclasses of managerial employees at El Torrito restaurants.  At this point, misclassification suits have the feeling of an arms race where the defendant companies hold a significant technological lead.  Six years after all the excitement occasioned by Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004), the upshot appears to be that, once a trial court picks a side, a Court of Appeal is unlikely to get involved.

In this particular decision, the Court relied heavily on a mix of California Supreme Court decisions and, somewhat disturbingly, a number of federal decisions.  For example, citing Marlo v. United Parcel Service, 251 F.R.D. 476 (C.D. Cal 2008), the Court said: 

The Marlo court identified the exact problem that this Court faces. Individual declarations submitted by the parties have anecdotal value but cannot be considered representative or common evidence. Specifically, the Marlo court stated the following:[¶] ‘Plaintiffs evidence is essentially individual testimony and an exemption policy. Under the circumstances in this case, where Plaintiff alleges that 1200 [class members] have been misclassified as exempt employees, Plaintiff had to provide common evidence to support extrapolation from individual experiences to a class-wide judgment that is not merely speculative. Plaintiff has not come forward with common proof sufficient to allow a fact-finder to make a class-wide judgment as to the class members. . . . Because Plaintiff lacks common experience, the Court has no confidence that the jury will be able to do anything but speculate as to a class-wide determination.’

Slip op., at 7.  The Court emphasized that it was not permitted to substitute its view of the evidence for the trial court's view:  "As the Supreme Court made clear in Sav-On Drug Stores, Inc., this court cannot now substitute its own judgment."  Slip op., at 12.

Plaintiffs appear to have argued that it is unfair to accept a uniform classification by defendant but require individualized proof of misclassification, an argument that has not been well received at the appellate level as of late.  The argument fared no better here: 

Plaintiffs argue defendants cannot on one hand assert they have determined, based on job activities, that all managers are exempt but on the other hand argue a court must examine each individual’s tasks to determine whether that person is exempt. This argument was answered in Campbell v. PricewaterhouseCoopers, LLP (E.D.Cal. 2008) 253 F.R.D. 586, 603-604, as follows: “Some courts . . . have determined that it is unfair for an employer to ‘on the one hand, argue that all [class members] are exempt from overtime wages and, on the other hand, argue that the Court must inquire into the job duties of each [class member] in order to determine whether that individual is “exempt.”’ [Citation.] But, under Walsh [v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1461,] there is no estoppel effect given to an employer’s decision to classify a particular class of employees as exempt—whether right or wrong, or even issued in bad faith; instead, the only legally relevant issue to alleged misclassification is whether the exemption in fact applies. 

Slip op., at 13.  Continuing with the extensive quotations from Campbell, the Court of Appeal wrote: 

“It may be intuitively unfair to permit an employer, who has historically classified a particular group of employees as exempt based on a uniform rule, to argue in the context of litigation that the exemption inquiry will require an individualized analysis. But the assumption behind such an intuitively appealing argument is that an employer should somehow be bound by its prior position—which is foreclosed by Walsh. ‘[I]n resolving questions of California law, this court is bound by the pronouncement of the California Supreme Court . . . and the opinions of the California Courts of Appeal are merely data for determining how the highest California court would rule . . . [but] the opinion of the Court of Appeals on questions of California law cannot simply be ignored.’ [Citation.]” 

Slip op., at 14.  After Ramirez in particular, misclassification suits were in no small supply.  But the arms race was equalizing by the time Sav-On was decided, and it looks like the defense bar has pulled ahead in this area.  To make misclassification suits a legitimate mechanism for correcting classification errors on a class-wide basis, plaintiffs will need to find news ways to show trial courts that systemic misclassification errors are really correctable on a class-wide basis.

Northern District Court certifies class in misclassification suit against Deloitte & Touche LLP

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United States District Court Judge Susan Illston (Northern District of California) certified a class of salaried employees alleging that they were misclassified as exempt by Deloitte & Touche LLP.  Brady v. Deloitte & Touche LLP, 2010 WL 1200045 (N.D. Cal. Mar. 23, 2010).  The class consists of salaried employees in the audit line of service but who were not licensed accountants.  The Court identified common issues of law and fact as follows:

Common questions of law include whether the professional exemption under California law requires a license for accountants, whether accounting is a “learned profession” under California Wage Order 4-2001, and whether the duties of proposed class members would qualify for administrative exception under California law. Common factual questions include whether defendant's standardized policies and procedures prevented the class members from customarily and regularly exercising discretion and independent judgment with respect to matters of significance, whether defendant categorically classified all class members as exempt, whether defendant required class members to work overtime, along with a host of other questions relating to overtime, meal breaks, timekeeping and pay.

Slip op., at 4.  Generally, the Court maintained a sharp delineation between certification questions and merits issues.

In Alberghetti v. Corbis Corp., District Court denies certification, but not for the usual reasons

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In Alberghetti v. Corbis Corp., 263 F.R.D. 571 (C.D. Cal Jan. 13, 2010), Judge Stephen V. Wilson denied plaintiffs' motion for class certification.  A denial of class certification is not an unusual event.  But, in this case, certification was denied even though the Court found that the plaintiffs satisfied the "commonality," "typicality," and "numerosity" requisites of Rule 23.

In Alberghetti, artists and entertainers filed suit against a photo-licensing company, alleging that it misappropriated plaintiffs' statutory and common law rights of publicity by using plaintiffs' names, images, and likenesses without plaintiffs' consent.  Citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir.1996), the Court first concluded that a majority of the class members could not be identified and would have no knowledge that their likenesses had been misappropriated or that their rights would be determined by the action.  The Court concluded that the plaintiffs had not adequately addressed that due process concern.

Second, the Court found fatal conflicts between the plaintiffs themselves and between plaintiffs and their counsel.  "Plaintiffs disagree as to whether injunctive relief is appropriate: one named Plaintiff wants to enjoin all of Defendant's uses of her image; the other named Plaintiff seems to recognize that media-related uses may be beneficial."  Alberghetti, at 577.  The Court also noted a very unusual rift between the plalintiffs and their attorneys: "In the present case, the individual Plaintiffs and their lawyer are all in conflict over whether to seek injunctive relief and how to define the scope of injunctive relief."  Id., at 578.  The plaintiffs and their counsel even disagreed as to who should be included in the class.

Not the usual reasons one sees for a denial of class certification.  It is an interesting opinion for that reason alone.

California Supreme Court activity for the week of March 8, 2010

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The California Supreme Court held its (usually) weekly conference today.  Notable results include:

  • A Petition for Review was denied in Davis v. Ford Motor Credit Co. (November 19, 2009) (adopting FTC-based formulation for "unfair" under the UCL and declining to import two-way attorney fee provision into UCL via predicate statute).  See, UCL Practitioner here and here for background 
  • A Petition for Review and Request for Depublication were denied in Keller v. Tuesday Morning, Inc., Inc. (November 4, 2009; pub. ord. December 4, 2009) (appeal of order denying class certification)

Other coverage of Coito v. Superior Court

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Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion.  Other articles that may be of interest include: 

More commentary will likely follow; this decision seems to have hit a nerve.

 

in brief: Post-Tobacco II remand case, Pfizer v. Superior Court, is now published

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The shockwaves of Tobacco II continue.  Today, the Court of Appeal (Second Appellate District, Division Three) published its Opinion in Pfizer v. Superior Court (March 2, 2010) after the matter was remanded by the California Supreme Court following the Tobacco II decision.  The Court focused heavily on the length of time and extent of the advertising campaign for Listerine that was at issue in the case.  Less than half a year and sporadic distribution wasn't enough to convince the Court to apply Tobacco II.  So now we have Morgan, et al. v. AT&T Wireless Services, Inc. (September 23, 2009), that found an advertising campaign of around a year to be long enough for a reliance inference, but just under half a year is insufficient.  I suppose those 8-month ad campaigns will be judged on a fact-intensive analysis that looks at whether the ads were continuous and pervasive or sporadic and poorly circulated.

In brief: Ninth Circuit issues new opinion in Rutti v. Lojack Corporation, Inc.

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After granting a panel petition for rehearing, the Ninth Circuit withdrew the Opinion in Rutti v. Lojack Corporation, Inc., 578 F.3d 1084 (9th Cir. 2009), and issued a new opinion, Rutti v. Lojack Corporation, Inc. (9th Cir. March 2, 2010).  The change is significant on the issue of commute time under California law: "[W]e vacate the district court’s grant of summary judgment on Rutti’s claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions, and remand the matter to the district court for further proceedings consistent with this opinion."  Slip op., at 3237.  I may provide a longer post about this change later.  The earlier post on Rutti can be found here.

 

McAdams v. Monier, Inc. opinion after remand is published; most of original opinion remains intact

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In a prior published opinion, McAdams v. Monier, Inc. (May 30, 2007, C051841), as mod. June 25, 2007, reversed a trial court order denying certification of the proposed CLRA and UCL classes.  The gravamen of the complaint was an alleged failure to disclose that the color composition of defendant's roof tiles would erode away, leaving bare concrete, well before the end of the tiles‟ represented 50-year lifetime.  Then, the Supreme Court granted review and deferred the matter (grant and hold) in light of In re Tobacco II Cases (2009) 46 Cal.4th 298 (Tobacco II), pending on the Supreme Court's docket at the time.  After Tobacco II was decided, the Supreme Court remanded with directions to vacate the decision and reconsider in light of Tobacco II.

Today, the Court of Appeal (Third Appellate District) issued its amended Opinion on Remand in McAdams v. Monier, Inc. (February 24, 2010).  But indicating that much of its Opinion would remain unchanged, the Court said, "In doing so, we reiterate our position involving the CLRA, as Tobacco II concerned only the UCL."  Slip op., at 2.  Going on, the Court summarized the new Opinion as follows:

We agree with case law that an “inference of common reliance” may be applied to a CLRA class that alleges a material misrepresentation consisting of a failure to disclose a particular fact. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1293 (Massachusetts Mutual).)

As for the UCL, we remand for the trial court to determine if the representative plaintiff meets the Proposition 64 standing requirements, as interpreted in Tobacco II. Otherwise, we find the UCL action suitable for class certification.

Consequently, we reverse the trial court's order denying certification of the proposed CLRA and UCL classes. We do so, however, with one proviso as to defining these classes, which we will explain in this opinion: The members of these classes, prior to purchasing or obtaining their Monier roof tile product, had to have been exposed to a statement along the lines that the roof tile would last 50 years, or would have a permanent color, or would be maintenance-free. (See Tobacco II, supra, 46 Cal.4th at p. 324.)

Slip op., at 2-3.

The opinion is extensive in its analysis of both the CLRA and the UCL.  The CLRA discussion is interesting for many reasons, including approving citation of the standing analysis in Chamberlan v. Ford Motor Co. (N.D.Cal. 2005) 369 F.Supp.2d 1138 (slip op., at 17) and clarification (and, to a degree, limitation) of the extent of the misrepresentation/omission discussion in Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30 (slip op., at 13-16).

The UCL discussion is also interesting on many levels.  For instance, the Court provides a simple reminder about what happened in Tobacco II: "In Tobacco II, the high court reversed an order that had denied class certification in a UCL lawsuit."  Slip op., at 21.  In other words, it reversed every element of the trial court order and Court of Appeal Opinion necessary to support that order.  Ultimately, the Court applied much of its certification analysis discusses in its CLRA discussion to the UCL claim, concluding that certification was appropriate.  The Court then directed the trial court "to determine whether the representative plaintiff can establish UCL standing as defined in Tobacco II and, if not, whether amendment should be permitted to add a new class representative."  Slip op., at 28.

More thoughts on Jaimez v. DAIOHS USA, Inc.

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There is quite a bit to absorb in  Jaimez v. DAIOHS USA, Inc., et al. (February 8, 2010), and I wanted to provide some further commentary.  For example, no California Court of Appeal has interpreted or provided any guidance to trial courts regarding the wage statement "injury" requirement.  Jaimez holds that: (1) "a very modest showing" will satisfy the injury requirement; (2) the filing of a lawsuit and "the difficulty and expense ... encountered in attempting to reconstruct time and pay records" may satisfy the wage statement injury requirement; (3) the "injury" requirement is distinct from "damages"; and, (4) trial courts may certify wage statement classes even without evidence of an injury arising from inaccurate wage statements. Opinion at 22-23.

Jaimez also re-affirms and clarifies key standards applicable to class certification motions, including the fact that the proper predominance analysis is comparative. Jaimez appears to be the first published California Court of Appeal decision since the issuance of Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) to hold that the "relevant comparison lies between the costs and benefits of adjudicating plaintiffs' claims in a class action and the costs and benefits of proceeding by numerous separate actions- not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever." Opinion at 13 (quoting Sav-On, 34 Cal. 4th at 339  n.10). This holding is a good reminder of the "relevant comparison" predominance analysis when examining whether to certify a class.

Jaimez clarifies the role of the trial court when considering issues surrounding certification of meal break classes, holding that trial courts may certify a meal break class regardless of any legal uncertainty regarding an employer's obligation to provide meal breaks. Opinion at 18-19.

Jaimez also establishes important precedent regarding meal break timing requirements.  Employers and employees continue to dispute when employees are entitled to meal breaks.  No California Court of Appeal has offered guidance on this frequently disputed issue. Jaimez holds that trial courts may certify meal break classes based on the theory that an employer failed to provide meal breaks within the first five hours of a shift.

Labor Code § 226 directs employers to provide their employees with "an accurate itemized statement in writing" showing "total hours worked" and "all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate."  When a violation occurs, "[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with [section 226(a)] is entitled to" specified damages. Id.  While this statutory language appears to differentiate between injury and damage, employees in California continue to face substantial resistance to the type of analysis supplied by Jaimez.

No California Court of Appeal has directly construed the wage statement "injury" requirement. Rather, only federal authorities have discussed this issue.  California employers, employees and courts continue to dispute the meaning of the wage statement injury requirement.  Jaimez now provides the first comments from a California Court of Appeal interpreting the wage statement injury requirement, assisting trial courts and litigants in the process.  On this point, Jaimez holds: "While there must be some injury in order to recover damages, a very modest showing will suffice." Opinion at 22.  Going further, Jaimez explains that '''this lawsuit, and the difficulty and expense [Jaimez has] encountered in attempting to reconstruct time and pay records,' may well be 'further evidence of the injury' he has suffered." Opinion at 22.  Adopting the federal approach to identifying injury, Jaimez explains that injury can include "the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked."  Opinion at 22.  This clearly articulated standard was missing from California jurisprudence.

Finally, with respect just to the wage statement aspects of the opinion, Jaimez holds that the absence of evidence at the certification stage of an injury arising from inaccurate wage statements does not preclude class certification because the plaintiff's theory (an erroneous wage statement form) is suitable for class treatment. Opinion at 22-23.

Despite many decisions regarding aspects of class certification, the actual application of certification standards to the facts of a particular case remains an area of substantial confusion for litigants and many trial courts.  Jaimez, citing Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524 (2008), tacitly recognized this ongoing area of difficulty for trial courts when it said, "The trial court misapplied the criteria, focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating 'whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.'"  Opinion, at 13.

Following this general observation about the application of incorrect criteria to the certification question, the Jaimez Opinion follows with one of the more thorough discussions of how to apply correct certification criteria to the specific facts of a case, on a claim-by-claim basis, spanning some 10 pages of the Opinion.  For example, the Opinion provides concrete examples regarding the correct method for evaluating evidence submitted in support or opposition to the motion for class certification:

[H]ad the trial court focused on the correct criteria, it would have necessarily found the First Choice declarations, while identifying individual effects of policies and practices that may well call for individual damages determinations, nevertheless confirm the predominance of common legal and factual issues that make this case more amenable to class treatment.  For example:

  • Eight of the First Choice Declarations admit that RSR’s regularly “forego” meal breaks and one states that he never takes a meal break; and
  • The First Choice declarations also fail to state that the RSR’s were compensated with an additional hour of pay, as required by California law, when the RSR’s failed to follow their “normal” practice and/or did not receive a 30-minute uninterrupted meal period.

The First Choice declarations actually demonstrate there are numerous predominant common factual issues.  The fact that individual RSR’s may have different damages does not require denial of the class certification motion.  Furthermore, declarations from a small percentage of objectors do not bar class certification.  In sum, the trial court applied improper criteria in evaluating the merits of the First Choice declarants’ statements rather than considering whether they rebutted plaintiff’s substantial evidence that predominant factual issues (if not legal, too) make this case more amenable to class treatment than to myriad individual adjudications (Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 743 (Bell); Richmond, supra, 29 Cal.3d at p. 475.)

Opinion at 15-16.  Opinions with this degree of practical detail about the correct method for evaluating evidence submitted in support of and in opposition to class certification are uncommon.  The rarity of such discussions about the practical mechanics of certification makes this Opinion that much more valuable for practitioners and trial courts alike.  Clarity of legal standards tends to reduce the duration and cost of litigation.

Just as important as the practical demonstration of how to assess evidence supplied by the parties on a contested certification motion is the Opinion's restatement of the correct legal test for evaluating predominance.  Since Sav-On, trial courts have continued to deny certification on the erroneous ground that a complex class action would, by necessity, require management of some individualized inquiries.  Jaimez provides a needed reminder that “'[T]he established legal standard for commonality . . . is comparative.'”  Opinion at 13, citing Sav-On.  Jaimez continues, "Specifically, '[t]he relevant comparison lies between the costs and benefits of adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous separate actions—not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever.  [Citations.]'"  Ibid.  Though simple to state, this principle has received inconsistent application in practice.  Where a legal standard is applied inconsistently, repeated affirmations of the principle will help guide trial courts towards greater homogeneity of their analyses.   

The Supreme Court is currently considering appeals of the decisions in Brinker Restaurant Corp. v. Superior Court [previously reported at 165 Cal. App. 4th 25 (2008)] and Brinkley v. Public Storage, Inc. [previously reported at 167 Cal. App. 4th 1278 (2008)], both of which address, among other things, issues surrounding meal period requirements.  Jaimez bluntly observes that the law in this area is unsettled.  Despite this uncertainty, since Petitions for Review were granted in Brinker and Brinkley, trial courts throughout the state have routinely declined to decide matters based on existing law, proposing to stay wage & hour class actions while awaiting Supreme Court decisions that may not be issued until late 2010 or later.

Prior to publication, no California case addressed the issue of how to apply the standards for class certification to meal and rest break claims while the Brinker and Brinkley cases are pending before the California Supreme Court.  Moreover, the conflict between the court of appeal's decision in Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 944 (2005) and a number of federal district court decisions also remains unresolved.  The Court, in Jaimez, found a way to avoid paralysis while awaiting Supreme Court decisions in Brinker and Brinkley. Jaimez held that a court "need not try to predict the outcome of the Supreme Court's review [of, in this case, Brinker and Brinkley], as we are not, at this stage, charged with adjudicating the legal or factual merits of Jaimez's causes of action."  Opinion at 19.

Jaimez makes it clear that trial courts need not stay class actions pending the outcome of the Supreme Court's proceedings in Brinker and Brinkley simply because they involve meal and rest break claims. California trial courts that are frequently being asked to deny or delay class certification of meal and rest break claims will find the Court's demonstrative application of class certification principles to meal and rest break claims helpful.

There is also a strong argument that, under California law, employees must have a 30-minute, uninterrupted meal break within the first five hours of a shift.  Labor Code § 512 say, "An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes .... "  Wage orders provide: "No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes .... "  And the California Supreme Court said, "Pursuant to IWC wage orders, employees are entitled to an unpaid 30-minute, duty-free meal period after working for five hours .... "  Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1104 (2007).

Despite these and other suggestive authority, trial courts continue to encounter employers and employees that dispute when employees are entitled to meal breaks. No California Court of Appeal has offered explicit guidance on this issue before this opinion. Jaimez found that trial courts may certify meal break classes based on the theory that an employer failed to provide meal breaks within the first five hours of a shift. See Opinion at 19 (observing that individual issues do not predominate because the First Choice's declarations "fail to establish that any of the meal breaks were: (1) uninterrupted, (2) for 30 continuous minutes, or (3) provided within the first five, hours of a shift").

There is a lot to chew on in Jaimez (much of it not all that palatable to employers).  I can't imagine that, with an opinion this comprehensive, we've heard the last about Jaimez.  There is more to read about in Jaimez (like what to do when the plaintiff is inadequate), but I am done writing about it.

Breaking News: Tacit rebuke of Cohen becomes explicit in modified opinion issued in Steroid Hormone Product Cases

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In Steroid Hormone Product Cases (January 21, 2010), the Court of Appeal (Second Appellate District, Division Four) reversed an order denying class certification and made some statements that seemed to be an implied rebuke of Cohen's treatment of In re Tobacco II Cases (2009) 46 Cal.4th 298 (Tobacco II).  (See this post for discussion of original decision.)  Today, the Court issued a modified opinion that explicitly rejects Cohen.  The full passage regarding Cohen is set forth below:

After we issued our opinion, GNC petitioned for rehearing, arguing that two recent cases from the Second Appellate District -- Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966 (Cohen) and In re Vioxx Class Cases (2009) 180 Cal.App.4th 116 (Vioxx) -- support the trial court's denial of class certification in this case. Both cases are distinguishable.
In Cohen, the plaintiff alleged that DIRECTV violated the UCL and the CLRA by inducing subscribers to purchase high definition television services through misrepresentations in DIRECTV‟s advertising that DIRECTV's broadcast of those channels would meet certain technical specifications. (Cohen, supra, 178 Cal.App.4th at pp. 969-970.) In opposing class certification, DIRECTV submitted evidence that many subscribers had never seen, or did not remember seeing, advertisements with the alleged misrepresentations about the technical specifications, and purchased the services at issue due to other factors. (Id. at p. 970.) The trial court found that common issues of fact did not predominate because the allegedly fraudulent representations were not uniformly made to or considered by the class members. (Id. at p. 973.)
The appellate court affirmed. In discussing the UCL claim, the appellate court 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.) But in any event, the Cohen court's discussion regarding the appropriateness of considering class members' reliance when examining commonality is irrelevant here, where the UCL claim is based upon the unlawful prong of the UCL and thus presents no issue regarding reliance.
Modification Order, at 1-3.