Published December 1, 2008 in the Daily Journal legal newspaper
The fourth anniversary of Proposition 64’s enactment by California voters is a little early to be casting a revisionist theory over its origin and intent.
That is more than evident in attorney Mark Labaton’s unconvincing attempt to do so in his Nov. 17 Daily Journal opinion article, “Cutting Class.”
Labaton mentions the “infamous” Trevor Law Group lawyers at least half a dozen times in trying to convince us that Proposition 64 was advanced specifically to stop their predations.
Reality: By the time the Trevor lads began getting press, the initiative was drafted and signature-gathering ready to launch. Reality: Private lawyers were attracting attention for their Unfair Competition Law excesses nearly a decade earlier. Professor Robert C. Fellmeth of the University of San Diego Law School noted in 1996 that: “The survey of cases and practitioners involved in Unfair Competition Act litigation indicates that the statute’s dilemma is no longer theoretical, it is currently functioning in a number of cases to frustrate the just and expeditious resolution of disputes.”
Just as fanciful is Labaton’s posit that Proposition 64 took an “unforeseen” turn after its passage. If the measure had been but a “seemingly straightforward ballot initiative” tailored only to derail indefensible Trevor-types, why did the state’s organized personal injury and other plaintiffs’ lawyers spend millions of dollars trying to defeat it?
No, Proposition 64’s text, ballot arguments and campaign uniformly displayed a strong intent to bring California into a common sense world requiring private litigant standing and eliminating counterfeit class actions lacking procedural protections and finality for everyone.
Labaton tells us the Trevor lawyers misused the UCL to file “dozens of lawsuits … based on notices of trivial violations.” He does not remind us that other pre-Proposition 64 lawyers were filing suits against auto dealers over the size of type in their newspaper ads, against travel agents for not showing their state license number on their Web home page, etc. It’s a long list of triviality, where plaintiffs’ lawyers had to establish nothing about their clients’ loss to win settlements of all sizes.
If Labaton gets his revised version of Proposition 64, lawyers will be able bring a multi-million class action suit by finding a single client who will swear he spent money on gasoline traveling to look at a mattress he found was not described to suit him. Or a multibillion-dollar case on behalf of a single client who claims he bought a tool thinking it was made in the U.S.A. and it wasn’t. In both cases there would be no need to establish whether the class members actually incurred a loss or even thought they might have.
Rewriting Proposition 64, as Labaton desires, would restore California to outlier status with a class action law unknown in any other jurisdiction - state or federal.
It would also send a big batch of pseudo-class action cases into California courts where the workload is already crushing. It would re-motivate thousands of lawyers to chase settlement money in cases where no one is injured instead of, for example, helping the tens of thousands of Californians who annually find themselves in our legal system without legal representation.
JOHN H. SULLIVAN
PRESIDENT, CIVIL JUSTICE ASSOCIATION; CO-CHAIR, YES ON PROPOSITION 64 CAMPAIGN
Sacramento
WILLIAM L. STERN
MORRISON & FOERSTER; CHAIR, DRAFTING COMMITTEE, PROPOSITION 64
San Francisco