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• Oral argument report: In re Tobacco II Cases 

Yesterday morning, the Supreme Court heard oral argument in In re Tobacco II Cases, no. S147345. Attorney Mark P. Robinson of Robinson Calcagnie & Robinson argued for the plaintiffs. Attorney Daniel P. Collins of Munger, Tolles & Olson argued for the defendants. Court of Appeal Justice Eileen C. Moore sat in place of Chief Justice Ronald M. George, who was recused.

Mr. Robinson began his argument by saying that with the UCL, the Legislature and the Supreme Court, for the past 35 years, have sought to protect consumers from deceitful marketing practices by use of the "likely to deceive" standard. Case law, including Chern and Justice Tobriner in Fletcher, has not required individualized proof of reliance. That is because, as the court in Fletcher pointed out, it is often impossible to prove in a class setting. The lightened burden of proof is part of the damages trade-off noted by the Court in Bank of the West. The purpose of the lightened burden is to effectuate the intent of the Legislature. Proposition 64 changed who can sue, it changed standing.

Justice Kennard was the first justice to speak and she wanted to get right to "the threshold inquiry." She asked whether the class was decertified because of the trial court's belief that the heightened standing requirement pertained to every class member. Mr. Robinson said that Judge Prager read Proposition 64 to require individualized proof of reliance for every member of the class. Justice Kennard: So your short answer is yes. Robinson: Yes. . . .

The final question was from Justice Kenard: Must the misrepresentations be a substantial factor in causing the plaintiff’s conduct? Mr. Robinson replied that the misrepresentation had to be material and likely to deceive the general public. He cited Harper v. 24 Hour Fitness, then concluded it’s up to the trial court to decide how the class is defined.

And that was the end of the argument.

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