Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 117 you have] been damaged” while it “[a]llows only the Attorney General, district attorneys, and other public officials to file lawsuits on behalf of the People of the State of California to enforce California’s unfair competition law.”585 As for class certification requirements, Prop 64 amended Business & Professions Code Section 17203 to include an express requirement that individuals seeking to bring collective actions under the UCL must satisfy the requirements for class certification set forth in Section 382 of the Code of Civil Procedure, including: (1) a community of interest among the class members; (2) common questions of law or fact which predominate over individualized issues; (3) a claim that is typical of the class; and (4) the plaintiff must be able to adequately represent the interests of the class.586 C. Proposition 64’s Restrictions on UCL Class Actions An issue raised by Prop 64 was whether, in a UCL-based class action, the Prop 64 standing requirement applies to all members of the proposed class, or just to the class representatives. Initially, it appeared that courts were tending toward requiring all class members to have standing.587 However, in 2009, the California Supreme Court handed down In re Tobacco Cases II,588 which held that Prop 64’s standing requirement applied only to the class representative and not to each and every person within the proposed class. More specifically, the California Supreme Court held that: Imposing this unprecedented requirement would undermine the guarantee made by Proposition 64’s proponents that the initiative would not undermine efficacy of the UCL as a means of protecting consumer rights, because requiring all unnamed members of a class action to individually establish standing would effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights.589 The ramifications of Tobacco II were substantial. In many wage and hour class actions, the plaintiffs use a UCL claim to extend the statute of limitations on their statutory claims to four years. 585 Id. 586 Kizer v. Tristar Risk Mgmt., 13 Cal. App. 5th 830, 849 (2017), as modified (July 26, 2017), review denied (Nov. 1, 2017) (in a case represented by Seyfarth attorneys, the California Court of Appeal held that “[t]o bring a class action claim under the UCL, the representative plaintiff must establish he or she has standing under the UCL, as amended by Proposition 64, and that all of the foregoing requirements for a class action are satisfied, including that common issues of fact or law predominate and that the representative's claim is typical of the class.”); Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096, 1103-04 (2003). 587 See, e.g., Pfizer, Inc. v. Superior Court, 141 Cal. App. 4th 290 (2006). 588 46 Cal. 4th 298 (2009). 589 Id. at 321.
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