Wage Law

Though the cases have nothing to do with wage and hour matters, In re Tobacco Cases II and Pfizer, Inc. v. Superior Court could affect a large number of wage and hour cases brought as class actions and representative cases under the Unfair Competition Law. Though we might enjoy talking about them from time to time here, The UCL Practitioner is a better place to keep abreast of the rapidly unfolding developments in these cases, and it was there that we read an excerpt from the Daily Journal that caught our attention:

The main question the court will decide in the newest case, lawyers for both sides said, is whether plaintiffs must show that each individual member of the class has been harmed, a nearly impossible burden.

That could be more than just a "nearly impossible" burden in many cases. It could absolutely impossible, and even where possible, it could require an inquiry into every single class member's claims, eviscerating the whole point of the class action procedure.

The questions presented by the petition for review in the Tobacco Cases were these:

(1) In order to bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64 (Gen. Elec. (Nov. 2, 2004)), must every member of the proposed class have suffered "injury in fact," or is it sufficient that the class representative comply with that requirement?

(2) In a class action based on a manufacturer's alleged misrepresentation of a product, must every member of the class have actually relied on the manufacturer's representations?"

If the answer to either of these questions is "yes," assuming that it could still be possible to litigate class actions in all but a few remarkable cases, one of the unforeseen consequences of such a rule might be the end of the distinction between pre-certification and post-certification discovery. The Daily Journal is right. Under existing precedent that limits the scope of pre-certification discovery in putative class actions, a plaintiff cannot possibly prove that every member of the proposed class suffered an "injury in fact," except in the most extraordinary of cases. If every UCL claim and class action must meet the threshold of proving an injury by each and every class member, the parties must be permitted to inquire about any and every member of the putative class.

Existing authority (e.g., Bell v. Farmers Insurance Exchange (2004) 115 Cal.App.4th 715 -- fact that 9% of employees in 295 employee sample had no overtime claims did not warrent decertification of class action) holds that one can certify a class even if a certain number of class members will be unable to prove eligibility to recover. The Tobacco Cases will certainly test that rule.