California Court of Appeal Continues the Trend of Limiting Tobacco II

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The California Court of Appeal for the Fourth Appellate District recently added to the growing jurisprudence interpreting the scope and effect of In re Tobacco II Cases (2009) 46 Cal.4th 298 in its decision last month in Sevidal v. Target Corp. (Case No. D056206, Oct. 29, 2010) __ Cal.App.4th __. Following a trend of other California appellate courts, including the Second Appellate District in Pfizer v. Superior Court (2010) 182 Cal.App.4th 622, Target stands for the proposition that Tobacco II applies only to standing, and does not change the requirements for class certification under California's Unfair Competition Law ("UCL"). The Target court upheld the lower court's decision denying class certification, holding that Tobacco II's limitation of traditional reliance and causation standing requirements to the named plaintiff in certain cases brought under the UCL does not eliminate the need for absent class members to establish that they were affected by the allegedly unfair practice in order to meet class certification requirements.

Raymundo Sevidal was a customer who purchased items of clothing through Target's website. Sevidal claimed he purchased these goods based on Target's representation on its website that the items were made in the United States when in fact they were not. He brought a class action suit against Target alleging fraud and violations of the UCL and false advertising laws.

Sevidal moved to certify a new class composed of "any California consumer who purchased any product from Target.com on or after November 21, 2003 which was identified on Target.com as 'Made in USA,' when such product was actually not manufactured or assembled in the United States." In support of his motion, Sevidal produced evidence obtained from Target that a "computer bug" caused some products at times to be incorrectly identified on the website as being produced in the United States when in fact they were not.

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