Prop. 64: Cherry-picker's delight?

Sanford v. West Corporation, 2006 WL 1791592 (Cal.App. 4 Dist.)

Briefly noted: The case raises but does not reach the issue of whether, because Prop. 64 required plaintiffs suing under the California UCL to suffer actual injury, a defendant can automatically defeat a putative class action by offering full relief to the named plaintiffs, contrary to the usual rule precluding defendants from cherry-picking in this fashion. Defendants argued that, “As a result of Proposition 64, a defendant may, by tendering full relief to a named plaintiff, be able to prevent that named plaintiff from representing a class. Unless the defendant is prepared to tender full relief to every member of the putative class, however, the defendant cannot eliminate the possibility of class treatment.” The defendant can just make class treatment practically impossible.

My guess: Given that the anti-cherry-picking rule exists in other jurisdictions (ones that never had California’s broad definition of possible plaintiffs) and effectuates the policy behind allowing class actions, most California courts will not apply the actual injury rule to allow this kind of manipulation. But it will probably reach the California Supreme Court eventually.