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The California Supreme Court held last week that in California unfair practices/false advertising (Business & Professions Code Section 17200) class action cases, only the named plaintiffs (class representatives) must meet the Proposition 64 standing requirements of actual injury (e.g. loss of money or property).  In contrast, a class represented by proper plaintiffs can be certified without showing that all the unnamed class members all meet that actual-injury standing requirement, although arguably no class member should be entitled to recovery without ultimately showing such actual damage. 

The court’s decision also separately weakened the degree of reliance a consumer must show on specific misstatements in a long-running advertising campaign.  According to the court, an unfair-practices consumer plaintiff must plead and prove actual reliance on misleading advertising, but “is not required to necessarily plead and prove individualized reliance on specific misrepresentations or false statements where, as here, those misrepresentations and false statements were part of an extensive and long-term advertising campaign.”  While these generalities from the court provide no guidance to determine when an advertising campaign is sufficiently “extensive and long-term” to relieve plaintiffs from identifying specific misleading ad claims, they arise in tobacco litigation and can arguably be distinguished as marking the far extreme of the spectrum for the combination of extensive and long-term advertising of a hazardous, affirmatively misrepresented product.  (In re Tobacco II Cases, California Supreme Court No. S147345, May 18, 2009)

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