UPDATE ON BIVENS V. SANFORD (PROP 64)

We filed an action against Sharpie pen manufacturer Sanford L.P. and its general partner Newell Operating Company for selling packages of pens through Costco. Some percentage of the pens that Costco sold were did not contain the unit count advertised on the label. This case has put us up against the Sheppard Mullin firm, and its formidable attorneys Greg Long and Chad Levy. Mr. Long was voted California's Trial Lawyer of the Year for 2004.

We conducted depositions in Nashville, Tennesee, and Chicago, Illinois, just before the passage of Proposition 64. We presently face a motion for summary judgment based on Sanford's claim that it complies with the National Institute of Standards and Testing's guidelines on unit count of packages.

Prior to the hearing on the motion for summary judgment, Proposition 64 passed. Sanford brought a motion for judgment on the pleadings to knock out the case. We opposed the motion, and made an alternative motion to substitute an injured plaintiff. Judge Goodman invited us to come back and have additional oral argument in early January, 2005.

On Tuesday, January 18, 2005, I appeared before Judge Goodman. After excoriating California's trial attorney of the year, Greg Long of the Sheppard Mullin firm, for objecting to our supplemental citation to Elsner v. Uveges, 34 Cal. 4th 915 (Dec. 20, 2004), Judge Goodman indicated that he believed that Elsner may be controlling. We had filed supplemental briefs raising this issue as briefing had been completed. Defense counsel objected to the case update as briefing had been completed.

Judge Goodman asked defense counsel to explain why the language in Elsner did not apply in Bivens. In my opinion, there was not a good reason expressed by the defense attorneys.

I did my argument, then we discussed whether there were any appellate cases on the issue and when we expected some to publish. I disclosed that we've got oral argument on proposition 64 in Bivens v. Lytwyn, and Bivens v. Corel. Both are set for February 17, 2005.

Judge Goodman asked if either of us had an objection to staying the case for a bit to get some guidance from the courts of appeal. Neither of us did. So, Judge Goodman continued our hearing to May 31, 2005, at 8:30 a.m. We'll sort through the meaning of Proposition 64 as interpreted by the Courts of Appeal at that time.

Trial is set for November of 2005.