Unfair Competition & Class Action Issues Pending In California Supreme Court

USE NOTE: The information in this bulletin, including the framing of the issue presented, is taken from the California Supreme Court’s official website. Citations to the court of appeal's opinion are for informational purposes only. The grant of review automatically vacates the opinion, which cannot be cited as precedent.

Enforceability of arbitration provision barring class actions. The court will decide the enforceability of an arbitration provision prohibiting employee class actions for violations of state wage and hour laws in Gentry v. Superior Court, S141502, formerly at 135 Cal.App.4th 944, review granted 4/26/06.

Proposition 64 "retroactivity." Does Proposition 64, limiting standing to bring a § 17200 action to “any person who has suffered injury in fact and has lost money or property as a result of such unfair competition,” apply to actions pending when the proposition became effective on November 3, 2004? Californians for Disability Rights v. Mervyn’s, S131798, formerly at 126 Cal.App.4th 386, review granted 4/27/05. SHORT ANSWER: YES, per opinion issued late-July, 2006. SLIP OPINION AT: http://www.courtinfo.ca.gov/opinions/documents/S131798.PDF

Proposition 64: amendment of complaint. If Proposition 64's standing limitations apply to § 17200 actions pending on November 3, 2004, may a plaintiff amend his or her complaint to substitute or add a party that satisfies the new standing requirements; does such an amended complaint relate back to the initial complaint for statute of limitations purposes? Branick v. Downey Savings & Loan Assn., S132433, formerly at 126 Cal.App.4th 828, review granted 4/27/05. ISSUED 7/24/06. CLICK HERE FOR LINK to slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S132433.PDF

Class action - "one-way intervention." May a trial court ever depart from the preferred practice of deciding whether to certify a class action before adjudicating any class claims on the merits, or is the rule against such “one-way intervention” in class actions a firm prohibition applicable in all circumstances? Fireside Bank v. Superior Court, S139171, formerly at 133 Cal.App.4th 742, review granted 2/1/06.


“Unlawful.” May a claim for violation of the Invasion of Privacy Act or the § 17200/Unfair Competition Law be premised on the recording of a telephone call without consent of all parties to the conversation, where the call is between California and a state requiring consent of only one party, and the call is recorded in the other state? Kearney v. Salomon Smith Barney, S124739, formerly at 117 Cal.App.4th 446, review granted 6/23/04. OPINION ISSUED, click to link to slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF

Class action, pre-certification privacy. In a putative class action, would the privacy rights of potential class members be violated by a pre-certification letter to be sent to those potential class members who had complained to defendant about the alleged defect on which the action is based, when the letter states that failure to respond to the letter will be treated as consent to disclose the identity of the potential class member to plaintiffs’ counsel for the purpose of this action? Pioneer Electronics (USA), Inc. v. Superior Court, S133794, formerly at 128 Cal.App.4th 246, review granted 7/27/05.