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The latest appeal court opinion on whether the tort reform measure Proposition 64 is retroactive is a double blow to the plaintiff bar. The Fourth District Court of Appeal, Division Three, ruled Thursday that the November rollback of the private attorney general law applies to all pending cases filed under Business & Professions Code �17200. The opinion is a harder blow to the plaintiff bar than a similar Second District ruling published Wednesday because it takes direct aim at a Feb. 1 anti-retroactivity ruling by the First District. And the latest opinion is topped off by a cudgel-like partial dissent from Presiding Justice David Sills that compares some of the state’s most prominent plaintiff lawyers to the Trevor Law Group, whose attorneys were hounded out of practice last year for abusing 17200. “This case represents what will hopefully be the last of a breed of lawsuits against businesses where lawyers make big bucks and clients nothing, for finding some tiny arguable technicality and bringing an unfair competition suit,” Sills wrote in a new epilogue to the blistering dissent, which was originally issued in June before the case was reheard. In Benson v. Kwikset, 05 C.D.O.S. 1252, plaintiff lawyers from several firms — including Washington, D.C.’s Cuneo Waldman & Gilbert and San Diego-based Lerach Coughlin Stoia Geller Rudman & Robbins — convinced a trial court that a lock maker illegally labeled products “Made in the USA” when certain components actually had been manufactured abroad. In Thursday’s opinion, Justice William Rylaarsdam wrote that Prop 64 is retroactive, adding that the First District’s opinion in Californians for Disability Rights v. Mervyn’s, 05 C.D.O.S. 1010, was “unpersuasive.” “The First District’s reasoning reflects a fundamental misunderstanding of the repeal principle,” Rylaarsdam wrote. Prop 64 proponents were heartened by the decision, which gives them a 2-to-1 edge in appellate rulings as the issue races to the Supreme Court. “Both [pro-retroactivity] decisions take the First District to school,” said William Stern, the author of Prop 64 and a partner at Severson & Werson. Stern and John Sullivan, the co-chairman of Prop 64′s sponsor, Californians to Stop Shakedown Lawsuits, said the measure should apply to pending cases, even though the initiative itself is silent as to retroactivity. Plaintiff lawyers disagree with the latest rulings, but say conflicting appellate decisions were expected. “I can’t say that’s a surprise to me,” said Jonathan Cuneo, the lead lawyer in the Kwikset case. But, he added, he is confident that the California Supreme Court will find that voters did not intend Prop 64 to stop pending suits. “In our case, something that’s very concerning is that we have a trial judgment, and this is something where I don’t think Prop 64 was passed to undo five years of work in a case where the defendant has been found liable,” said Cuneo.

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