Pfizer v. Super. Ct. 7/11/06 CA2/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B188106

Case Date: 11/01/2006

Preview:Filed 7/11/06

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

PFIZER INC., Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STEVE GALFANO, Real Party in Interest.

B188106 (Los Angeles County Super. Ct. No. BC327114)

ORIGINAL PROCEEDINGS in mandate. Carl J. West, Judge. Petition granted. Kaye Scholer, Thomas A. Smart, Richard A. De Sevo and Jeffrey S. Gordon for Petitioner. Hugh F. Young, Jr.; Shook, Hardy & Bacon, Paul B. La Scala, Victor E. Schwartz, Cary Silverman, for Product Liability Advisory Council, Inc. as Amicus Curiae on behalf of Petitioner.

Fred J. Hiestand; Morrison & Foerster, William L. Stern, for Civil Justice Association of California, California Chamber of Commerce, California Manufacturers and Technology Association and California Bankers Association, as Amici Curiae on behalf of Petitioner. National Chamber Litigation Center Inc., Robin S. Conrad; Wiley Rein & Fielding, John E. Barry for the Chamber of Commerce of the United States of America, the Association of National Advertisers, Inc., and the Coalition for Healthcare Communications as Amici Curiae on behalf of Petitioner. No appearance for Respondent. Westrup Klick, R. Duane Westrup, Christine C. Choi; Allan A. Sigel for Real Party in Interest. Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Albert Norman Shelden, Assistant Attorney General, Ronald A. Reiter and Kathrin Sears, Deputy Attorneys General, as Amicus Curiae.

Defendant Pfizer, Inc. (Pfizer), the manufacturer of Listerine mouthwash, seeks a writ of mandate to overturn respondent superior court's November 22, 2005 order certifying a class action filed by plaintiff and real party in interest Steve Galfano (Galfano). The complaint alleges Pfizer marketed Listerine in a misleading manner by indicating the use of Listerine can 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." In view of the changes in the law brought about by Proposition 64, the class definition is plainly overbroad and must be set aside.

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PRELIMINARY STATEMENT The Unfair Competition Law (UCL) (Bus. & Prof. Code,

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