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Kimberly A. Kralowec
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Kimberly A. Kralowec is now following The Typepad Team
Mar 15, 2010
In response to Andrew: Tobacco itself cited significant federal authorities (not state ones) holding that standing need not be separately established for every class member. E.g., Slip op. at 20-21 (citing federal cases). In response to Chris: "Moreover, a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material." Tobacco, slip op. at 31 (quoting Engalla v. permanente Medical Group, 15 Cal.4th 951 (1997)). The Supreme Court in Vasquez applied this principle to classwide proof in a fraud case. In further response to Chris: The requirement that the class representative establish actual reliance in a UCL "fraudulent" prong case is not an "element" of the claim. It's necessary to prove standing only. To clarify my earlier comment, the need for the class representative to prove an additional fact(standing) above and beyond the actual elements of the claim (which are identical for the class representative and the class members) does not destroy typicality. If the class representative cannot prove standing, then you never get to the point of class certification.
Typicality does not require that the claims be identical. Now, the class representative has to prove more (not less) than the members of the class in order to establish his or her case. The evidence needed to prove the class claims is a subset of what the representative must prove to establish his or her own claims. This does not destroy typicality under either state or federal law, nor did the Tobacco opinion hold that typicality need not be established under section 382. If the class representatives had to prove less than the class members, there might be a typicality problem, but not here.
The link was good back in October 2008 when I originally wrote this post. Apparently the operators of the City Attorney's website have moved the document.
I'm told that Judge Mohr is taking Judge Elias' place on the panel.
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How can a lawyer answer the question, "What are you doing?" during the course of a workday without breaching attorney-client privilege?
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