What procedures must a Court follow when a plaintiff settles, leaving a "headless" putative class action?

I've faced a species of this issue myself.  But it turns out that the answer to this question involves more potential twists and turns than one might first believe.  Seems there's more than one way to skin this headless cat.  And, in a most interesting twist, the appellate division tackling this question is very same division that decided Parris v. Superior Court, 109 Cal. App. 4th 285 (2003) [pre-certification communications with class members], Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007) [discovery of putative class member identity and contact information], and Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325 (2008) [discovery of putative class member identity and contact information], so one might say that this division has a certain expertise regarding this prickly area.

In Pirjada v. Superior Court (December 12, 2011), the Court of Appeal (Second Appellate District, Division Seven) issued an order to show cause but ultimately denied the petition for a writ of mandate brought by the plaintiff following the denial of a discovery motion.  The plaintiff settled his individual claim through direct negotiations with defendant's CEO.  The trial court granted leave to amend the complaint to name a new class representative but denied the motion to compel precertification discovery to identify a suitable class representative.

What will ultimately happen in this case remains unclear.  But this opinion does identify key decisions that might have changed the result, though that is hard to say with certainty.

The Court began its discussion by restating existing standards.  First, class member rights are protected, even pre-certification.  Second, court approval is not needed to communicate with putative class members, but when a court's assistance is solicited, a court can consider the potential for abuse.  Third, class member contact information is "generally discoverable."  Fourth, lead plaintiffs, who are unqualified to serve as a class representative may, "in a proper case," move for discovery to find a new representative.  However, the Court also noted that precertification discovery is not a matter of absolute right.

Next, citing La Sala v. American Savings & Loan Assn., 5 Cal. 3d 864  (1971) and Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582 (1984) (disapproved in part on another ground in Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634 (2009)), the Court emphasized the trial court's obligation, as also stated in Rule 3.770, to consider carefully any request to dismiss a class action and evaluate whether notice is necessary.

Then, after noting that the standard of review is the abuse of discretion standard, the Court explained why the writ must be denied. Petitioner first argued, as a matter of discovery law, that because defendant failed to respond to document requests, it waived any objection. Absent a finding that the failure was the result of mistake, inadvertence or excusable neglect, Petitioner argued that it was an abuse of discretion to deny the motion to compel. Second, as a matter of the procedural law governing class actions, Petitioner argued that the court abused its discretion in declining to authorize notice to potential class members about the need for a substitute representative. The Court found the first contention to be incorrect and the second premature.

Interestingly, though the Court ultimately rejected the challenge to the discovery order, it was highly critical of defendant's behavior:

Outside the context of representative and class actions it may well be, as Pacific National observes, “a matter of common knowledge and common sense” that once a plaintiff settles his or her case any discovery responses not yet due no longer need to be served. Because the lawsuit against Pacific National was filed as a class action, however, and the individual settlement with Pirjada was made without the participation or consent of his lawyer, the experienced employment law attorneys representing Pacific National should have either objected to the still-outstanding discovery as moot, moved for a protective order or taken steps to ensure that the settlement agreement between their client and Pirjada included a provision withdrawing any remaining discovery requests.

Slip op., at 12.  The Court then observed that the trial court could have crafted a number of alternative orders designed to locate a suitable representative.  Here's where things get interesting.  The trial court first considered and denied a motion to give notice to the class.  That order was not challenged, though the Court telegraphed its opinion of the Order:

Although the court's decision to deny Westrup Klick's motion for notice to the class was based largely on a distinction between consumer and employee class actions, a distinction we implicitly rejected in Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554, the propriety of that ruling is not before us. Westrup Klick did not seek writ review of the court's May 26, 2011 order. Instead, it elected to proceed by way of a motion to compel.

Slip op., at 13.  The Court then concluded that the trial court's decision to deny the motion to compel after giving time to find a new representative was not arbitrary or capricious.

As to the second, premature argument, the Court also seemed to be hinting that the trial court should proceed with caution:

Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing. Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770.

Slip op., at 14-15.  Riiiiiight.  Good thing they didn't give the trial court a look at their cards.

So now you know, at a minimum, that when the representative suddenly hits the eject button, class counsel needs to walk carefully through the dismissal process so as to seek the best possible methods for locating replacement representatives and/or obtaining notice to the putative class.

Common law test for employment governs claim by "licensed agent" challenging independent contractor classification

Test pilots who push the envelope either go on to walk on the moon and serve as legislators or die in fiery crashes.  Either way, they go out in a big way.  Cases that push the envelope don't have such dramatic finishes, but they often clarify the law, and not necessarily in a good way.  In Arnold v. Mutual of Omaha Insurance Company (December 30, 2011), the Court of Appeal (First Appellate District, Division One) reviewed the trial court's decision to grant summary judgment in favor of defendant on the claim that a non-exclusive insurance agent was improperly classified as an independent contractor.  A key aspect of the Court's decision concerned the issue of whether the trial court applied the correct test for employment to claims alleging failure to reimburse expenses and failure to timely pay wages.

On appeal, the plaintiff argued that the trial court erred in applying the common law test for employment that was enunciated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989).  Instead, the plaintiff contended that Labor Code section 2750 supplied a statutory definition of employee that is broader than the common law test and controls the definition of employee applicable to section 2802.  I note here, parenthetically, that this argument seems somewhat similar to an discussion of this issue I presented some years ago on this blog.  At least now I don't have to wonder how a court would react to this analysis.

In any event, the Court cited approvingly to Estrada for its conclusion that the Labor Code does not define "employee" for purposes of section 2802:

One reviewing court has recently held the Labor Code does not expressly define “employee” for purposes of Labor Code section 2802, and therefore, the common law test of employment applies to that section. (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 (Estrada).) That court went on to cite the “principal” and “additional factors” of the common law test as articulated by the Supreme Court in Borello, supra, 48 Cal.3d 341, and summarized above. (Estrada, supra, at p. 10.)

Slip op., at 6-7.  While the Court noted that Estrada may not have explicitly considered the argument about section 2750, the Court  went on to hold that the common law test must apply, or section 2750 would conflict with the statutes immediately following 2750.

Having settled on the common law test for employment as the correct test, the Court then considered whether the evidence supported the trial court's decision to grant summary judgment.  While it is impossible to know what evidence was submitted, the Court's summary of key evidence suggests that the defendant had the better of it:

The salient evidentiary points established Arnold used her own judgment in determining whom she would solicit for applications for Mutual's products, the time, place, and manner in which she would solicit, and the amount of time she spent soliciting for Mutual's products. Her appointment with Mutual was nonexclusive, and she in fact solicited for other insurance companies during her appointment with Mutual. Her assistant general manager at Mutual's Concord office did not evaluate her performance and did not monitor or supervise her work. Training offered by Mutual was voluntary for agents, except as required for compliance with state law. Agents who chose to use the Concord office were required to pay a fee for their workspace and telephone service. Arnold's minimal performance requirement to avoid automatic termination of her appointment was to submit one application for Mutual's products within each 180-day period. Thus, under the principal test for employment under common law principles, Mutual had no significant right to control the manner and means by which Arnold accomplished the results of the services she performed as one of Mutual's soliciting agents.

Slip op., at 9-10.

It's easy to armchair quarterback, but the factual record described by the Court does not seem like the optimal factual record on which to test this issue.  Then again, when I appealed Alvarez, I'm sure many people said the same thing...  Good thing the Supreme Court bailed me out years after the fact in another case.

"Actual cash value" isn't fair market value, says George v. Automobile Club of Southern California

Here's one from the backlog stack, but it isn't too exciting, so you didn't miss much.  In George v. Automobile Club of Southern California (December 12, 2011), the Court of Appeal (Second Appellate District, Division Eight) reviewed the trial court's decision to sustain a demurrer without leave to amend in a putative class action alleging it was impropre for defendant to declare the "actual cash value" of a vehicle in an insurance policy but then refuse to pay that amount in the event of a total loss, instead paying the fair market value of the car at the time of the loss.   The result didn't seem to be in doubt, based on the policy language noted by the trial court and Court of Apeal:

The declarations page, when read together with the rest of the policy, unambiguously provides that in the event of a total loss, the policy will pay the actual cash value of the car up to $25,000, less the deductible. The ordinary meaning of these words is that if the car is stolen and forever lost, the policy will pay the fair market value, or actual cash value, of the car on the date of the claim, less the deductible, but in any event, not more than $25,000.

Slip op., at 16.  This isn't really a class action case in that the issue was solely one of contractual interpretation, but I include it as a cautionary note for anyone else looking into bringing such a claim. 

Another arbitration-friendly decision from the U.S. Supreme Court in CompuCredit Corp. v. Greenwood

Today the United States Supreme Court issued its decision in CompuCredit Corp. v. Greenwood (Jan. 10, 2012).  At issue was whether a sentence in that act, at 15 U. S. C. §1679c(a), which says, "You have a right to sue a credit repair organization that violates the [Act]," preserves the right to sue in court.  Because the Credit Repair Organizations Act is silent as to whether claims may be heard in an arbitration forum, the Court held, 8-1, that the arbitration agreement in question should be enforced according to its terms.  Justice Ginsburg dissented strongly, and the short concurring opinion by Justices Sotomayor and Kagan stated that the case was a much closer call than the majority opinion suggests, noting good points raised in the dissenting opinion of Ginsburg.  In particular there seems to be a strong disagreement about whether Congressional intent must be explicitly stated or may be inferred from a consistent set of statements suggesting a specific intent.  Not much more to say about this, other than to note that its essentially a tautology that the majority gets to decide whether they see a clear Congressional intent or not.  If they say there isn't an intent, then they are right by default.

NLRB issues decision in D.R. Horton protecting employees from arbitration agreements barring class actions

Fairly hot off the presses, we have the National Labor Relations Board's decision in D.R. Horton, Inc.  The decision addresses, among other things, whether a mandatory arbitration agreement that bars class or collective actions violates certain employee rights under the National Labor Relations Act.  Hint: it does.  Very important for certain wage & hour cases.

Full disclosure: I contributed an amicus brief in response to the NLRB's invitation for such briefs, as noted in footnote 1.

Disagreeing with a sister Court of Appeal, Wisdom v. Accentcare, Inc. wisely finds arbitration agreement unconscionable

The fact that equally learned Courts of Appeal reach fundamentally different results from similar circumstances either confirms that minute differences in fact are all that are needed to change the result on tough legal issues (the "aren't we important in the legal field" explanation) or confirms that we're all making this pseudo-science of law up as we go along (the "likely" explanation).  In Wisdom v. Accentcare, Inc. (July 3, 2012), a Court of Appeal (Third Appellate District) examined an arbitration clause included within an application for unemployment.  The trial court concluded that the application was unenforceable, given its substantial procedural and substantive unconscionability.  The Court of Appeal agreed.

Procedural unscionability was obvious to the Court:

In this case, the preemployment arbitration agreement is procedurally unconscionable. “[F]ew employees are in a position to refuse a job because of an arbitration requirement.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 115.)

Slip op., at 2.  The Court found additional evidence of procedural unconscionability in the agreement "because its language implied there was no opportunity to negotiate, because the rules of any arbitration were not spelled out in the agreement or attached thereto, and because plaintiffs did not understand they were waiving their right to a trial, nor was that fact explained to them."

The Court then found substantive unconscionability because of the lack of mutuality:

The lack of mutuality is made apparent by contrast to a different application form, also employed by AccentCare, which provided that “in exchange for my agreement to arbitrate, AccentCare, Inc. also agrees to submit all claims and disputes it may have with me to final and binding arbitration . . . .” “[I]n the context of an arbitration agreement imposed by the employer on the employee, such a one-sided term is unconscionable.” (Armendariz, supra, 24 Cal.4th at p. 118.)

Slip op., at 2-3.

Much of the discussion includes a more detailed discussion of the various deficiencies identified by the trial court.  Of particular note, though, was the Court's mention of an opinion from the Second Appellate District, Division Seven, which reached a different result in similar but not identical circumstances:

We are aware that Division 7 of the Second Appellate District examined a nearly identical arbitration agreement in Roman, supra, 172 Cal.App.4th at page 1470-1471, and held that the procedural unfairness was “limited[.]” Roman reasoned that there was little evidence of surprise since the arbitration provision was “contained on the last page of a seven-page employment application,” and “was set forth in a separate, succinct (four-sentence) paragraph that Roman initialed, affirming she had seen it.” (Id. at p. 1471.)

Here, however, even though plaintiffs undoubtedly saw the arbitration paragraph when they initialed it, their declarations state they did not know what “binding arbitration” meant, no one explained it to them, and they were unaware they were giving up their right to trial. There was no evidence any of the plaintiffs were sophisticated in legal matters. This, combined with the non-negotiable, take-it-or-leave-it circumstances surrounding the application for employment, result in a strong showing of procedural unconscionability.

Slip op., at 10-11.  Then, when discussing substantive unconscionability in the form of one-sidedness, the Court's criticism of Roman is more pointed:

Defendants rely on Roman, supra, which held that an agreement containing nearly identical language was bilateral. (172 Cal.App.4th at p. 1473.) But Roman, supra, did not explain its reasons for concluding that the agreement at issue in that case was bilateral. Instead, the court distinguished Higgins, supra, on the ground that the procedural unconscionability in Higgins had been “far greater[.]” (Id. at pp. 1472-1473.)

To the extent Roman implies that the agreement in Higgins was not substantively unconscionable due to its one-sidedness, it is wrong. Higgins, supra, discussed at some length the fact that the “I agree” language of the contract indicated that only the siblings had agreed to the arbitration clause, and stated only briefly that “[a]dditional elements of substantive unconscionability” were to be found in the provision barring only the siblings from seeking appellant review of some claims and the provision requiring arbitration in accordance with the rules of the American Arbitration Association. (Higgins, supra, 140 Cal.App.4th at p. 1254.)

Slip op., at 14-14.

While I may be biased from my own success before Division Seven, I generally like the analyses in that Division's opinions.  But it is hard to find fault with this Court's critique of Roman. 

In Harris v. Superior Court, the California Supreme Court tries to clarify the administrative exemption as it applies to claims adjusters

(Whether it was successful is another matter entirely.)  After spending the majority of December out sick, I have a good deal of case commentary to cover before I'm current here.  In no particular oder, I begin with the California Supreme Court's opinion in Harris v. Superior Court (December 29, 2011).  Harris stems from four coordinated class action lawsuits contending that claims adjusters employed by Liberty Mutual Insurance Company and Golden Eagle Insurance Corporation were erroneously classified as exempt "administrative" employees.  The trial court certified a class of "all non-management California employees classified as exempt by Liberty Mutual and Golden Eagle who were employed as claims handlers and/or performed claims-handling activities."  Plaintiffs moved for summary adjudication of defendants' affirmative defense that plaintiffs were exempt under IWC wage order No. 4. (Cal. Code Regs., tit. 8, § 11040 (Wage Order 4).) Defendants opposed the motion and moved to decertify the class.  The trial court then decertified a portion of the class, depending upon whether the earlier, less specific version of Wage Order 4, or the later, more detailed version of Wage Order 4, applied to the class members.

On appeal, the Court of Appeal majority concluded that, under the terms of that wage order, plaintiffs could not be considered exempt employees, either before or after the amendment to Wage Order 4.  In a nutshell, the Supreme Court reveresed that ruling to the extent it set a bright line rule, holding, instead:

[I]n resolving whether work qualifies as administrative, courts must consider the particular facts before them and apply the language of the statutes and wage orders at issue. Only if those sources fail to provide adequate guidance, as was the case in Bell II, is it appropriate to reach out to other sources.

Slip op., at 22.

Between that summary of its holidng, and the explanation of the facts and procedural history, is a long and painful journey through the federal regulations incorporated into the current version of Wage Order 4.  In case you were wondering, the regulations incorporated as they existed in 2001 are: 29 C.F.R. Sections 541.201-205, 541.207-208, 541.210, and 541.215.  Next, in parsing the regulations, the Court's analysis turned on assessing when work is "directly related" to management policies or general business operations.  As the Court explained:

Work qualifies as "directly related" if it satisfies two components. First, it must be qualitatively administrative. Second, quantitatively, it must be of substantial importance to the management or operations of the business. Both components must be satisfied before work can be considered "directly related" to management policies or general business operations in order to meet the test of the exemption.

Slip op., at 10.  The Court then explained that the plaintiffs in the trial court below moved for summary adjudication of the affirmative defense of exemption by challenging defendants' ability to show one part of the conjunctive test for "directly related."  The plaintiffs argued that the defendants could not show that the work of the adjusters in that case was administrative in nature, the "qualitative" element.  The Supreme Court focused its analysis on that argument only, explicitly declining to review the record for triable issues on any other element of the exemption defense, including the "quantitative" element of the "directly related" regulatory language.

Turning to the administrative/production worker dichotomy discussed in Bell v. Farmers Ins. Exchange, 87 Cal. App. 4th 805 (2001) (Bell II) and the other Bell decisions, the Court explained that the Bell II decision was predicated on the older Wage Order 4 that lacked the detailed definitions included in the current version.  The Court also noted that the Bell II based its analysis on an undisputed record that the work of the employees at issues was "routine and unimportant."  One key fact from the Bell II analysis noted by the Supreme Court here was the limited settlement authorizations provided to the adjusters in that case.  It is important to note, however, that the Court did not invalidate the administrative/production worker dichotomy.  Rather, it stated that the dichotomy could not stand as a dispostive test in lieu of the Wage Order language.  Instead, the dichotomy is an analytical tool available when the language of the Wage Order and incorporated federal regulations is insufficient to resolve the classification question.

Turning to the current case, the Court criticized the creation of a rigid rule defining any employee carrying out day-to-day business as a production worker.  Instead, the Court cautioned against examining the duties of employees in one business to determine the correct classification of employees in another.  In other words, the administrative exemption is fact-specific test for which the Court offers no guidance in its application.

The Court reversed the Court of Appeal but directed it to re-consider the denial of summary adjudication while applying the correct legal standard.

Disclosure:  Spiro Moss represented one of the named plaintiffs, though other firms handled the appellate activities.

California Supreme Court activity for the week of December 12, 2011 [with Brinker Bonus!]

The California Supreme Court held its (usually) weekly conference on December 14, 2011.  Notable results include:

• Brinker news!  The submission of the matter is vacated and additional briefing is requested.  Wait. You thought that a decision was imminent after oral argument?  So precious!  This is BRINKER we are talking about.  Your children will be writing supplemental briefs for this decision.  The California legislature will have withdrawn and re-enacted an entire Labor Code before a decision is rendered (at which point it will again be vacated for briefing on the impact of changed law retroactively).

The downside of this news is that I will need to create a 2012 edition of my Brinker News graphics.

Lopez v. Nissan N.A. provides an example of Cel-Tech safe harbor under the UCL

In the realm of UCL jurisprudence, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999) is a major decision, cited for numerous propositions, including the broad scope of the UCL. But Cel-Tech is also cited for something known as the "safe harbor" rule.   Under the "safe harbor" rule as enunciated in Cel-Tech, if the Legislature expressly declares conduct to be "lawful," or expressly forbids a claim for certain conduct, then that conduct falls within a "safe harbor" where no UCL claim may be asserted.  Cel-Tech, at 182.

In Lopez v. Nissan North America, Inc. (Dec. 5, 2011), the Court of Appeal (Second Appellate District, Division Four) considered a trial court decision granting summary judgment in a case alleging that Nissan calibrated odometers to over-register miles driven by at least two percent.  Nissan moved for summary judgment, arguing that California law considers an automobile odometer  "correct" if it registers the actual mileage within a tolerance of plus or minus four percent (Bus. & Prof. Code § 12500(c)).  The trial court granted summary judgment for Nissan, concluding that California's "safe harbor" provision – section 12500(c) – does not protect manufacturers from liability for intentional miscalibration, but that plaintiffs failed to raise a triable issue as to whether Nissan had deliberately designed its odometers to overregister mileage.

The Court of Appeal agreed, holding:

We hold that passenger vehicle odometers are "correct" if they register actual mileage within the four percent tolerance and the designer or manufacturer does not deliberately miscalibrate them to underregister or overregister mileage. This standard is substantially the same as that applied by the trial court in granting summary judgment for Nissan.

Slip op., at 2.  The Court found section 12500(c) to be a "safe harbor" provision, provided that intentional miscalibration was not demonstrated.  Explaining itself, the Court said:

Similarly, we conclude that section 12500, subdivision (c) provides a safe harbor against UCL claims complaining about the accuracy of odometers that qualify as “correct” under that provision. (§ 12500, subd. (c); Cel-Tech, supra, 20 Cal.4th at p. 183.) California law specifically permits a slight measure of inaccuracy in odometers because it is uniformly understood that “errorless value or performance of mechanical equipment [including odometers] is unattainable.” (NIST Handbook, Appx. A, § 2.1.) Just as “[n]o law generally requires a manufacturer to use the most expensive or most durable materials in the manufacture of its products” (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1273), neither the UCL nor any other law requires Nissan to employ the most accurate possible odometer design. (See Alvarez, supra, 656 F.3d at p. 935.) With respect to an odometer that qualifies as “correct” even though it may not be 100 percent accurate, the Legislature has implicitly determined that any slight injury to consumers does not outweigh the harm if more stringent requirements for precision were to apply. In deeming qualifying odometers “correct,” section 12500, subdivision (c) “clearly permit[s]” their design (CelTech, supra, 20 Cal.4th at p. 183), and we “may not use the unfair competition law to condemn actions the Legislature permits.” (Id. at p. 184.)

Slip op., at 25.

There are many pages of discussion about the evidence in the case.  Had the plaintiffs established an intentional miscalibration, it would have been a different game.   But they didn't, at least to any court's satisfaction.  Not much to say beyond that.

Another Court of Appeal lines up behind Cohen v. DIRECTV, Inc.

Bad facts make bad law.  Presumably the corollary is that good facts make good settlements, and never become law.  And this is all relevant to the recent decision from the Court of Appeal (Second Appellate District, Division Three).  In Davis-Miller v. Automobile Club of Southern California (pub. Nov. 22, 2011), the Court considered consolidated appeals of the denial of class certification in a case concerning a roadside battery service program that provides jump-starts and sells and installs batteries for stranded motorists.

The trial court concluded that common issues did not predominate.  In particular, the trial court credited evidence showing that most class members needed the batteries they were sold and very few class members were exposed to the alleged false advertising about the roadside assistance program.  Thus, concluded the trial court, commonality could not be satisfied.  Whether you agree with that conclusion depends, in part, upon where you come down on the issue of classwide reliance in UCL cases.  How you apply this case beyond its facts also depends on your point of view.

The Davis-Miller Court embraced the Cohen v. DIRECTV, Inc., 178 Cal. App. 4th 966 (2009) treatment of Tobacco II.  But it did so in the face of sharp criticism.  Steroid Product Hormone Cases concluded that Cohen appeared to have disregarded Tobacco II, saying:

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.)

So how does one resolve this conflict?  Literally applying Tobacco II, its seems inconsistent with the Supreme Court's construction of the UCL to apply any evidence associated with reliance to class claims.  If the named plaintiff has standing, that's the end of the inquiry.  The "likely to deceive" standard of the fraudulent prong of the UCL has not been repealed or changed.  New standing requirements apply only to the named class representative. 

Pragmatically, of course, it's a different story.   Many courts philosophically disagree with the UCL's amalgamation of strict liability and quasi-fraud theories.  Then again, legislation is the perogative of the legislature.  Until the legislature or another ballot initiative changes the UCL's scope substantively, it should be applied consistent with its plain language and the construction supplied by the California Supreme Court.