Metropolitan News-Enterprise


Friday, August 19, 2011


Page 3


C.A. Reinstates Bid to Certify Class in Suit Over Mouthwash Claims


By a MetNews Staff Writer


A consumer accusing the maker of Listerine mouthwash of false advertising was wrongly denied the opportunity to seek certification of a class action, this district’s Court of Appeal ruled yesterday.

Div. Three held that Los Angeles Superior Court Judge Carl J. West, whose earlier class certification order was reversed as overbroad, erred in terminating the certification proceedings on remand. The judge should instead have considered certifying a narrower class, Presiding Justice Joan Dempsey Klein concluded.

In a suit that is now more than six years old, Steve Galfano alleged that Pfizer Inc. violated the unfair competition and false advertising laws by representing that Listerine was just as effective as dental floss in reducing plaque and preventing gingivitis.

West initially certified a class made up of all Listerine purchasers in California from June 2004 through Jan. 7, 2005. The Court of Appeal ruled in 2006 that the class was overbroad, but the California Supreme Court sent the case back so that the panel could reconsider it in light of In re Tobacco II Cases (2009) 46 Cal.4th 298.

Tobacco II held that Proposition 64’s limitation of standing to sue for UCL violations to those actually injured by the violation does not apply to unnamed class members. But Div. Three ruled in Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622 that Tobacco II does not compel a different result in Galfano’s case than the one the court reached four years earlier.

The Supreme Court ruling allows a trial court to certify a class whose members were exposed to false or deceptive advertising “without individualized proof of deception, reliance, and injury,” Klein acknowledged. “Be that as it may,” the presiding justice explained, “one who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to restitution.”

When the case returned to the Superior Court, Galfano moved to redefine the class as one consisting of California residents who, between the same dates as set forth in the earlier ruling, purchased specified flavors and sizes of Listerine with labels bearing specific representations.

West declined to allow further certification proceedings, saying they would be “inconsistent with the directive of the Court of Appeal.”

But Klein, in her unpublished opinion yesterday, said the two prior decisions established the plaintiff’s right to seek certification of a narrower class.

She distinguished prior cases holding that there is no right to renew a certification motion once the time to appeal its denial has expired. That rule “has no application to this case,” Klein said, in which the trial court granted certification and the appellate panel’s reversal of that order was expressly without prejudice to the plaintiff’s right to bring a new motion.

The jurist also rejected, as premature, Pfizer’s arguments that Galfano cannot adequately represent a class and that the proposed redefined class could not be ascertained.

The case is Galfano v. Pfizer Inc., B227121.


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