New Decisions

Ninth Circuit Upholds Allegations That CVS Violated ACA By Discriminating Against Persons With HIV

Recently the Ninth Circuit Court of Appeals overturned a lower court decision, holding that five “John Doe” HIV patients could pursue a discrimination claim against CVS Caremark for requiring HIV and AIDS patients to obtain their medications by mail-order or drop shipment to a CVS store.

The Ninth Circuit Court of Appeals reversed the lower court decision that found the plaintiffs had not adequately alleged a disability discrimination claim, finding the plaintiffs properly alleged that the CVS mail order program violated the anti-discrimination provisions of the Affordable Care Act (“ACA”).

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Landmark Supreme Court Decision Reaffirms Consumer Protections Under the UCL

On May 18, 2009, the California Supreme Court issued its long-awaited decision in In Re Tobacco II Cases, S147435. In a 4-3 decision, the Court held that for a fraudulent business practice claim under the State’s Unfair Competition Law, Bus. & Prof. Code Section 17200 et seq., as amended by Proposition 64 in 2004, the class representative needs to plead and prove actual reliance to satisfy the standing requirement of 17204, but the class members do not.

In addition, the representative is not required to plead and prove individualized reliance on specific misrepresentations, particularly where statements are part of an extensive and long-term advertising campaign. The following summarizes several highlights from that opinion:

“We therefore conclude that Proposition 64 was not intended to, and does not, impose section 17204’s standing requirements on absent class members in a UCL class action where class requirements have otherwise been found to exist.”

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