Metropolitan News-Enterprise


Thursday, July 13, 2006


Page 3


Prop. 64 Restricts Class Members in Listerine Suit — C.A.


By a MetNews Staff Writer


Consumers seeking to recover from drug maker Pfizer, Inc. in a class action over its allegedly misleading Listerine advertisements cannot sue unless they show actual injury, this district’s Court of Appeal ruled yesterday.

Div. Three granted Pfizer, Inc.’s petition for writ of mandate seeking to vacate a class certification order by Los Angeles Superior Court Judge Carl W. West.

Steve Galfano last year filed a consumer action against Pfizer alleging, in his individual capacity and on behalf of all others similarly situated, that the company marketed Listerine in a misleading manner by indicating that its use could replace the use of dental floss in reducing plaque and gingivitis.

Galfano subsequently filed a motion to certify as a class “all persons who purchased Listerine, in California, from June 2004 through January 7, 2005.”

In opposition, Pfizer asserted that consumers’ personal motives for buying the mouthwash, such as brand loyalty or price promotion, were not all due to Pfizer’s alleged deception and were issues of fact that needed to be resolved on an individual rather than class-wide basis.

West rejected Pfizer’s arguments and granted Galfano’s motion, noting that California unfair competition law, as amended by Proposition 64, was silent as to whether class members in addition to private parties must show injury in fact to have standing. But in issuing his order, West expressed reservations about the remedies available to the class, and reserved jurisdiction to modify the class definition, decertify the class, or substitute a new class representative.

Writing for the appellate panel, Presiding Justice Joan Dempsey Klein said West erred as a matter of law in certifying the broad class of Listerine purchasers.

Contrary to West’s view that actual injury was an “open issue” in class member standing, Klein wrote, Proposition 64’s amendments to California’s unfair competition law and false advertising law limit private enforcement of those laws to persons who have suffered injury in fact and have lost money or property as a result of the laws’ violation.

The language of Proposition 64 closed “shakedown loophole[s]” in unfair competition and false advertising laws, which originally contained broad enforcement provisions authorizing “any person” to sue on behalf of the general public, Dempsey explained.

In light of Proposition 64, she wrote, the class definition must be set aside as “plainly overbroad.”

“Given the new restrictions on private enforcement under the UCL and the FLA, enforcement of these statutes in legitimate cases is increasingly the responsibility of a vigilant state Attorney General and/or local public prosecutors,” the justice concluded.

Long Beach attorneys R. Duane Westrup and Christine C. Choi, of Westrup Klick, LLP, and Westwood attorney Allan A. Sigel represented Galfano on appeal.

Century City attorney Jeffrey S. Gordon was among Pfizer’s counsel.

The case is Pfizer v. Superior Court (Galfano), 06 S.O.S. 3652.


Copyright 2006, Metropolitan News Company