Press Release

Morrison & Foerster Secures Victory for Target in “Made in USA” Case

03 Nov 2010

SAN FRANCISCO (November 3, 2010) – Morrison & Foerster recently secured a victory for Target Corporation in a class action case brought by consumer Raymundo Sevidal, who alleged fraud and violation of unfair competition and false advertising laws after purchasing three clothing items from Target’s website that were misidentified as made in the United States. On October 28, 2010, the California Court of Appeal agreed with the trial court’s refusal to certify the class based on its finding that the proposed class was not ascertainable.

Sevidal had argued that under the California Supreme Court’s decision in In re Tobacco II Cases (2009), class could be certified on unfair competition claim even if most of the proposed class members never relied on the “Made in the USA” designation in making their online purchases. In 2006, the California Supreme Court held that Proposition 64's requirement of actual injury and reliance applied only to named class representatives and suggested that courts could certify class actions under Cal. Bus. Prof. Code § 17200, et seq., without individualized showing of deception, reliance, or injury.

The Fourth District Court of Appeal found that substantial evidence supports the Superior Court’s conclusion the absent class members could not be reasonably identified by reference to records or by common characteristics that would allow the class members to identify themselves. The Court of Appeal also determined the trial court properly found the class was overbroad because the evidence shows the vast majority of absent class members never saw the web page containing the alleged misrepresentation, and thus, were never exposed to the alleged wrongful conduct.

Morrison & Foerster partner David McDowell, who was the lead attorney for Target in this case, said, “We are pleased the court agrees with Target’s opposition to the class certification motion and with its interpretation of the Supreme Court’s language.”

Along with Mr. McDowell, the Morrison & Foerster team included Senior of Counsel Miriam Vogel and associate Samantha Goodman.

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