Tobacco II Opinion generates widespread media coverage and commentary

Monday's Tobacco II Cases Opinion has generated extensive media coverage and commentary.  Here's a sample of the reactions:

  • Courthouse News Service said, in a brief commentary, "Plaintiffs in a class-action lawsuit against the tobacco industry are not required to show that every member has relied on the tobacco industry's claims about cigarettes, the California Supreme Court ruled."
  • In a press release issued through PRWeb's, commentary included: "This new ruling will clarify a number of legal issues, and will reject the idea that in a class action, each and every class member will have to show "reliance" on a fraudulent act to win a class action. This will mean that the hundreds of thousands of California residents who have been harmed by tobacco companies may seek relief in court."
  • LegalNewsline primarily focused its coverage on the Tobacco II Cases, "The California Supreme Court, in a 4-3 vote Monday, has reinstated a class action lawsuit against tobacco companies accused of misleading advertising."
  • Jon Hood, at, discussed the significant implications for consumer class actions, "Justice Carlos Moreno, writing for the majority, said that the law was only intended to stop 'shakedown' lawsuits against businesses, and was passed in response to the practice of small business paying lawyers off to make threatened suits go away. Moreno said that the Court of Appeals' view 'would effectively eliminate the class action lawsuit as a vehicle for vindication of (consumer) rights.' Moreno also pointed out that Prop 64's sponsors explicitly provided in ballot arguments that they did not intend to weaken consumer protection laws."
  • also focused on the facts of the case itself, but delved further into the rationale of the majority opinion, "Proposition 64, Moreno elaborated, amended the UCL by requiring a showing that the plaintiff has suffered injury 'as a result of' an unfair, unlawful, or fraudulent act or practice. The initiative does not, he said, make 'any reference to altering class action procedures to impose upon all absent class members the standing requirement imposed upon the class representative.'"
  • The UCL Practitioner collected blog and news commentary in posts here and here.  I find it particularly amusing that Will Stern, an architect of Proposition 64, seems surprised that the ballot measure promise that the amendment was not intended to weaken consumer protections should come back as a basis for the Supreme Court's Tobacco II Cases Opinion.

Despite all this coverage, one comment that I find particulary significant has received little in the way of analysis:

Moreover, Proposition 64 left intact provisions of the UCL that support the conclusion that the initiative was not intended to have any effect on absent class members. Specifically, Proposition 64 did not amend the remedies provision of section 17203. This is significant because under section 17203, the primary form of relief available under the UCL to protect consumers from unfair business practices is an injunction, along with ancillary relief in the form of such restitution “as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.” (§ 17203.)

(Slip op., at p. 21)  Over the last several years, I have contended in many class certification motions that UCL classes could be certified under the less stringent Fed. R. Civ. P. 23(b)(2) class (recognized by California Courts) because the essence of a UCL claim is injunctive relief, including any Order of restitution.  I contend that this is particularly valid where a minimum amount of restitution can be identified.  Under the policy that unjust enrichment cannot be tolerated under the UCL, an equitable order directing disgorgement in that circumstance is primarily injunctive in nature.  Circumstances have conspired to deprive me of a trial court ruling on the issue.  Perhaps I shall have a further opportunity to pursue this theory in the near future.