On June 17, 2010, the California Supreme Court denied the petition for review and request for depublication in Pfizer, Inc. v. Superior Court, 182 Cal. App. 4th 622 (2d Dist., 2010). Accordingly, this important post-Tobacco II appellate opinion remains good authority. Pfizer provides a cautionary tale of attempting to certify too broad a class. The lesson here is to tailor your proposed class definition to the scope and manner in which the alleged misrepresentations were made.

In Pfizer, a consumer sued a mouthwash manufacturer pursuant to the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and the false advertising law (Bus. & Prof. Code, § 17500 et seq.). The consumer alleged the manufacturer marketed its mouthwash in a misleading manner by representing the use of mouthwash could replace the use of dental floss in reducing plaque and gingivitis.

The trial court certified a class of "all persons who purchased Listerine, in California, from June 2004 through January 7, 2005." The Court of Appeal granted Pfizer's petition for writ of mandate, concluding the trial court's class definition was overbroad. The Supreme Court granted review. On August 19, 2009, the Supreme Court transferred the matter back to the Court of Appeal with directions to vacate the decision and reconsider the matter in light of In re Tobacco II Cases (2009) 46 Cal.4th 298 [93 Cal.Rptr.3d 559, 207 P.3d 20] (Tobacco II). Having done so, The Court of Appeal again concluded the class definition is overbroad and granted Pfizer's petition.

In reaching its decision, the Court of Appeal noted that with respect to the remedy of restitutionary disgorgement, Tobacco II holds:

"[T]he language of section 17203 with respect to those entitled to restitution--'to restore to any person in interest any money or property, real or personal, which may have been acquired' (italics added) by means of the unfair practice--is patently less stringent than the standing requirement for the class representative--'a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.' (§ 17204, italics added.) This language, construed in light of the 'concern that wrongdoers not retain the benefits of their misconduct' [citation] has led courts repeatedly and consistently to hold that relief under the UCL is available without individualized proof of deception, reliance and injury. [***16] [Citations.]" (Tobacco II, supra, 46 Cal.4th at p. 320.)”

“Be that as it may, 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. Here, the class certified by the trial court, i.e., all purchasers of Listerine in California during a six-month period, is grossly overbroad because many class members, if not most, clearly are not entitled to restitutionary disgorgement. The record reflects that of 34 different Listerine mouthwash bottles, 19 never included any label that made any statement [*632] comparing Listerine mouthwash to floss. Further, even as to those flavors and sizes of Listerine mouthwash bottles to which Pfizer did affix the labels which are at issue herein, not every bottle shipped between June 2004 and January 2005 bore such a label. Also, although Pfizer ran four different television commercials with the "as effective as floss" campaign, the commercials did not run continuously and there is no evidence that a majority of Listerine consumers viewed any of those commercials. Thus, perhaps the majority of class members who purchased Listerine during [***17] the pertinent six-month period did so not because of any exposure to Pfizer's allegedly deceptive conduct, but rather, because they were brand-loyal customers or for other reasons.”

“The circumstances herein stand in stark contrast to those in Tobacco II, where the tobacco industry defendants allegedly violated the UCL "by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease." (Tobacco II, supra, 46 Cal.4th at p. 306.) Tobacco II allows a class representative who actually relied on the defendants' misleading advertising campaign to represent other class members who may have lost money by means of the unfair practice. Tobacco II does not stand for the proposition that a consumer who was never exposed to an alleged false or misleading advertising or promotional campaign is entitled to restitution.”

“As Pfizer argues, it is one thing to say that restitution can be awarded to purchasers of cigarettes where the cigarettes were marketed as part of a massive, sustained, decades-long fraudulent advertising campaign on the grounds the tobacco industry defendants "may have ... acquired" [***18] (§ 17203) the purchase price as a [**804] result of such a pervasive fraudulent campaign. It is entirely another to say that restitution can be awarded to all purchasers of Listerine in California over a six-month period where the undisputed evidence shows many, if not most, class members were not exposed to the "as effective as floss" campaign and therefore did not purchase Listerine because of it.”

On March 21, 2010, the United States Congress passed the Health Care and Education Affordability Reconciliation Act of 2010 (H.R. 4872). This legislation will reform the nation’s broken health insurance system by providing medical coverage to uninsured, vulnerable Americans who would otherwise not be able to receive adequate health care. Passage of this Act is truly a democratic success and a milestone in our nation’s history.

Such change does not come cheap. According to the Congressional Budget Office, health care reform will cost an estimated $940 billion over the course of 10 years. To offset the costs imposed on the government, the Act appropriately imposes tax increases on certain classes and industries. One such area is the medical device manufacturing industry.

Effective 2013, a 2.3% excise tax will be imposed on sales of medical devices. The medical device excise tax will apply to devices ranging from surgical instruments to bedpans. The provision is expected to raise $20 billion over the course of 10 years.

The Medical Device Manufacturers Association (MDMA) is very concerned about the tax’s impact on manufacturer profits. The MDMA argues that the tax will stifle innovation and cut into research and development (R&D) of medical devices. While the long term effect of the tax on manufacturers remains unclear, one thing is certain: proper R&D of medical devices is absolutely critical to the safety of patients and consumers. For manufacturers to threaten the imposition of such an excise tax with a reduction in R&D is nothing short of reckless and irresponsible.

Per the Supreme Court’s decision in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), injured patients are barred from bringing tort law claims against manufacturers of Class III, FDA approved, medical devices (devices which sustain/support life, are implanted into the body, or pose serious risk of illness or injury). If manufacturers are in fact considering cutting into R&D of their products, consumers will find themselves in a position of greater risk without opportunity for legal recourse. For this reason, passage of the Medical Safety Device Act should be made a priority in 2010.

In the early hours of New Year’s Day 2009, BART police officer Johannes Mehserle shot and killed Oscar Grant, who had been involved in a fight and was resisting arrest while prostate on the ground. Immediately after the shooting, Mehserle and his partner began to confiscate cell phones, cameras, and video tapes, many of which have still not been returned to their owners. After the public release of many of these recordings and a public outcry culminating in riots, Mehserle was charged with murder in the first degree. Opening arguments began June 10, 2010. Some of the videos and pictures, including a picture taken by Grant on his cell phone, have been crucial in this case. The circumstances of this case have drawn parallels to Rodney King’s beating, which was another police brutality case caught on camera. As catalogued on several blogs, notably Carlos Miller’s “Photography is Not a Crime,” many police departments across the country routinely harass witnesses recording public police activities, although usually without any legal basis to do so. However, in California and eleven other states, the police have used anti-eavesdropping and anti-wiretapping laws to legally arrest civilians who have recorded police officers performing their official duties in public. See, e.g., Cal. Penal Code § 632. Arresting civilians filming police officers in public is detrimental both to police officers and to the public.

All-party consent statutes have been enacted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In contrast to the anti-eavesdropping and anti-wiretapping statutes of the federal government and the other 38 states, the all-party consent statutes require the recording party to obtain consent from all parties to the recorded confidential conversation or face criminal charges. Of those states, Massachusetts seems to be the strictest and most active state in pursuing criminal charges against members of the public filming police officers in public, although there have been recent arrests for violating all-party consent statutes in Pennsylvania, Washington, and New Hampshire.

In Commonwealth v. Hyde, 434 Mass. 594, 601 (2001), the Supreme Judicial Court of Massachusetts interpreted its all-party consent statute broadly to not require an expectation of privacy, in contrast to federal law and other all-party consent states, such as Washington and California. The Hyde court affirmed the conviction of the defendant, who had surreptitiously recorded his conversation with a police officer at a police stop and subsequently attempted to file a complaint using the tape as evidence. In Chief Justice Marshall’s dissent, he noted that this decision will threaten the press’s First Amendment rights and constitutional role as watchdog. The harsh interpretation by the Supreme Judicial Court of Massachusetts caused Massachusetts state legislators to propose several bills, which would carve out exceptions for recording conversations with police officers, but none have passed thus far.

All-party consent statutes are often applied too broadly by extending protection to conversations that have very low expectations of privacy. California courts have identified some of these situations, such as while under valid arrest in a police car, in jail, at a non-confidential business meeting, when expressing an intent to violate the law, and at a meeting in a busy restaurant. With the increase in the availability of consumer electronics, including cameras on most new cell phones, and the incredible ease of global distribution of recordings, privacy expectations are much lower than they were when anti-eavesdropping and anti-wiretapping laws were first introduced during the 1960s. Many states will not extend privacy protection to situations with low expectations of privacy, although some are inconsistent in applying this to the recording of police officers.

Another bar to criminal liability for recording police officers in public is the newsworthiness test, which has been held to be a full defense against other privacy-based offenses. The California Supreme Court recognizes that truthful publication is shielded from liability if “(1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community notions of decency.” Briscoe v. Reader’s Digest Association, Inc., 4 Cal. 3d 529, 541 (1971). California courts use the following factors to determine newsworthiness: “(a) the social value of the facts published; (b) the depth of the article’s intrusion into ostensibly private affairs; and (c) the extent to which the individual voluntarily acceded to a position of public notoriety.” Id. As noted by Chief Justice Marshal, the press has a constitutional duty to act as a watchdog of the police, so recordings of police officers have high social value. Police activities in public are not private, so there is no intrusion into private affairs. Police officers are constantly observed by and interact with the public, so their public notoriety is voluntary. Thus, police activities in public are newsworthy. If police activities shock the community notions of decency, these activities should probably be halted. Any state with a similar newsworthiness exception should not find public recordings of police officers to be criminal offenses.

Allowing the public to record police officers protects both the public and police. It is in the interests of a just democratic society to hold police responsible for their abuses and to allow citizen oversight of police officers. The public is in the best position to protect their own rights through publication or political, administrative, or judicial methods. Additionally, police officers are protected from false claims of abuse if they are regularly recorded in public. Filming in other contexts can also yield a much wider and reliable source of information to investigate and stop crime. Recognizing this potential benefit, California already has exceptions to its anti-wiretapping laws for recording crimes of extortion, kidnapping, bribery, threats of violence against the person recording, annoying or harassing telephone calls, and domestic violence. See Cal. Penal Code § 633, 633.5. Police officers and the public would best be served by allowing citizen recording of police officers in public.

Greg Cragg
Greg is entering his fourth year as an evening student at Loyola Law School of Los Angeles. As a law clerk for KP&A, his work entails assisting attorneys and communicating with clients involved in civil rights suits, consumer fraud cases, and wage and hour class actions. Greg has worked on many of the firm's largest cases and is dedicated to providing the highest level of legal service to our clients and co-counsels.