Pfizer: The Court of Appeal Rinses Away the Tobacco II Aftertaste

In Pfizer, Inc. v. Superior Court, ___ Cal. App. 4th __ (March 2, 2010), the Court of Appeal, Second District, applied In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ("Tobacco II") to overturn an order granting class certification. The Pfizer opinion resuscitates traditional class certification opposition strategies based on the unfair competition law (the "UCL") even in the wake of Tobacco II's holding.

Pfizer revolves around a six-month advertising campaign Pfizer used to promote Listerine mouthwash. During the six months between June 2004 and January 2005, some Listerine bottles bore a label that claimed Listerine was "as effective as floss" in reducing plaque and gingivitis. The plaintiff filed a class action lawsuit alleging violations of the UCL on the basis of the alleged fraudulent advertising and sought restitutionary disgorgement of the amounts the class members paid for Listerine.

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