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We begin by summarizing the holding in Good, supra, where the Court addressed whether 15 U.S.C. § 1334(b) expressly or impliedly preempted a claim under Maine's Unfair Trade Practices Act. Id. at 541. . . .
In light of this decision, there was no preemption of the plaintiffs' claim by Federal law. We therefore turn to whether the judge erred in concluding that the plaintiffs' claim is not exempted pursuant to G.L. c. 93A, § 3. General Laws c. 93A, § 3, states in pertinent part: "Nothing in this chapter shall apply to transactions or actions otherwise permitted ... by any regulatory board or officer acting under statutory authority of the commonwealth or of the United States."
Pursuant to the statute, the defendants have the burden of proving the exemption. That burden is a heavy one. . . .
The defendants have failed to meet their burden of showing that they were given affirmative permission to use the descriptors at issue here and therefore the statutory exemption applies. There was no error.
Conclusion. For the reasons set forth above, we affirm the order granting summary judgment for the plaintiffs and denying summary judgment for the defendants. The case is remanded for further proceedings consistent with this opinion.
So ordered.
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The state's highest court ruled Monday that Massachusetts smokers can use a consumer protection law to sue Philip Morris Inc. for the way it marketed Marlboro Lights.
The Massachusetts Supreme Judicial Court's ruling -- which closely mirrored a decision from the U.S. Supreme Court in December -- means a class-action lawsuit brought by smokers who claim deceptive marketing can move forward.
In the U.S. Supreme Court case, the justices ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands.
The Massachusetts court, in a unanimous ruling, cited the Supreme Court ruling and said the state's law against deceptive marketing practices can be used by smokers who sued Richmond, Va.-based Philip Morris, which is owned by Altria Group Inc.
FUTURE CALENDAR Thursday, January 10th 2008, 9:00 AM Presiding: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, Botsford, JJ. Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston
The U.S. Court of Appeals for the First Circuit on August 31 issued a comprehensive, 68-page ruling (pdf) that reinstated a consumer protection lawsuit filed in 2005 on behalf of Maine residents who smoked Marlboro Lights or Cambridge Lights manufactured by Philip Morris USA, Inc. The lawsuit contends that Philip Morris, USA Inc., and its parent company, Altria Group, Inc., violated the Maine Unfair Trade Practices Law by engaging in unfair and deceptive acts or practices. Specifically, the plaintiffs allege that the company made affirmative representations that some of its brands are “Light†and that they deliver “Lowered Tar and Nicotine†when in fact they do not do so and the company knew that they do not do so.
The lawsuit, Good, et al. v. Altria Group, Inc., et al., was dismissed on May 25, 2006 by U.S. District Court Judge John A. Woodcock, Jr., who ruled that the Federal Cigarette Labeling and Advertising Act (FCLAA) pre-empts the plaintiffs’ claims.
A similar lawsuit, Aspinall v. Philip Morris, is currently awaiting appeal in Massachusetts on the similar issue of whether the FCLAA pre-empts plaintiffs’ claims based on Mass. General Law Chapter 93A, the consumer protection statute. Massachusetts, like Maine, is in the First Circuit. The Aspinall appeal is to be heard by the Massachusetts Supreme Judicial Court . . .
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP) at Northeastern University School of Law in Boston, was delighted with the First Circuit’s ruling. “This decision revitalizes litigation brought on behalf of victims of Philip Morris’ light cigarette scam. The Good case now goes back to the federal district court in Maine, while the chances of a dismissal of the Aspinall case in Massachusetts are now extremely remote,†Sweda said.
Mark Gottlieb, Director of TPLP, noted that "the series of industry defenses in "light" cases stemming from the assertion that the U.S. Federal Trade Commission somehow regulated the term "Lights" and "Lowered Tar and Nicotine" are now collapsing as seen in the U.S. Supreme Court's unanimous decision in Watson and now here. The reason for this collapse is that the notion that the FTC regulated the marketing of these products without ever issuing a regulation is utterly false. The Illinois Supreme Court, which managed to get this completely wrong on scant evidence, should be embarrassed for having reversed the multi-billion verdict in the only "light" class action to go to trail so far."
In a major blow to tobacco companies, the US Supreme Court yesterday denied tobacco giant Philip Morris' s request to shift all smokers' lawsuits to federal courts, which generally give greater leeway to corporations and smaller damage awards to those claiming harm from years of exposure to tobacco smoke.
The decision, in a case involving the alleged marketing deception of "light" cigarettes, is expected to affect liability lawsuits against tobacco companies filed in 20 states, including Massachusetts. Some state awards in recent years have been in the billions of dollars, although many of those judgments were later overturned on appeal. . . .
"This is a big loss for the industry," said Edward L. Sweda Jr. , senior attorney for the anti smoking Tobacco Products Liability Project at Northeastern University School of Law in Boston. "If the appeals court ruling had been upheld, it would have basically eliminated state courts as a venue for lawsuits against the tobacco companies."
Sweda said other industries, such as pharmaceutical companies and automakers, could argue that lawsuits against them should move to federal court because of their relationship with federal regulators.
William Ohlemeyer, associate general counsel for Philip Morris, downplayed the Supreme Court's decision as "narrow" and insisted it would not affect the case.
"We have compelling defenses to the Watson claim that have been advanced in state courts," Ohlemeyer said in a statement. . . .
In Massachusetts, a suit filed by Lori Aspinall and Thomas Geanacopoulos in 1998 is now before the state Superior Court. In 2004, the Massachusetts Supreme Judicial Court, in a 4- to -3 decision, allowed smokers to proceed with a class-action suit over the marketing of light cigarettes.
During the last four months, there have been several court decisions that have bolstered the prospects of plaintiffs who have sued tobacco companies.
May 18. Haglund v. Philip Morris, 847 N.E. 2d 315 (pdf). The Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense. This is the first court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice” defense is unavailable to the tobacco companies. Thus, a consumer can proceed with a strict liability tobacco lawsuit in Massachusetts even while knowing that there is something wrong with the product. All the consumer has to prove is that it was possible to make a less dangerous product (e.g., one without nicotine, which would not be addictive and hence not smoked in quantities large enough to cause disease), and that the product caused the consumer’s illness.
July 6. Engle v. Liggett Group, 2006 Fla. LEXIS 1480 (pdf). The Florida Supreme Court upheld findings that cigarette manufacturers were negligent, committed fraud and fraudulent concealment and that their products are defective, unreasonably dangerous, addictive, and the cause of 16 major diseases. . . .
July 21. Arnitz v. Philip Morris, 933 So. 2d 693 (pdf). See http://tobacco.neu.edu/litigation/cases/pressreleases/Arnitz.htm The Court of Appeal of Florida, Second District upheld a plaintiff verdict, ruling that a plaintiff is allowed to raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense. This permits juries to rule for plaintiffs even if the jurors also think (as they often do) that the plaintiffs were also at fault.
August 9. Aspinall v. Philip Morris. A Massachusetts Superior Court judge rejected Philip Morris’ motion for summary judgment in a “light” cigarette class action. The judge rejects the argument that the Federal Cigarette Labeling Act preempts the plaintiffs’ claims and disagreed with the Illinois Supreme Court’s majority opinion in Price v. Philip Morris on the question of whether the Federal Trade Commission’s use of consent orders constitutes “specific authorization” of industry conduct by a federal agency, thus shielding the industry from liability under state consumer protection statutes. . . .
August 22. Thompson v. Brown & Williamson Tobacco Co. The Missouri Court of Appeals, Western District upheld a plaintiff verdict and rejected all appellate arguments made by the tobacco company defendants, including the contention that Congress has preempted state law claims, that “common knowledge” of the dangers of smoking obviated the defendants’ duty to warn in a negligence claim and that a defendant can withdraw an affirmative defense of comparative negligence and prevent the plaintiff from seeking a comparative fault instruction, even when the evidence presented at trial supported such an instruction. . . .
Regarding tobacco litigation, certain tobacco-friendly stock analysts have focused virtually exclusively on whether and when Altria will spin off Kraft Foods and have disregarded or downplayed legal developments that have gone against tobacco’s interests. . . .
The latest proof that these companies have not transformed themselves into responsible corporate citizens – as they have claimed as part of a multi-million-dollar public relations campaign -- came on August 31 when the tobacco company defendants moved to have Judge Kessler not apply her ban on false descriptors such as “light” and ‘Low Tar” and her requirement of corrective statements to sales outside the United States. As the Washington Post in its September 5 editorial (“Big Tobacco, Lawless As Ever,”) put it: “If we can’t continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?”
In light of these pro-plaintiff legal developments, the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston, plans to conduct a litigation conference in February 2007 in Miami, Florida.
The state's highest court yesterday allowed potentially hundreds of thousands of smokers to mount a class-action lawsuit against Philip Morris Cos. Inc. contending that the cigarette maker duped them into believing that Marlboro Lights delivered lower tar and nicotine than regular cigarettes.
The class-action suit would represent anyone in the state who since 1994 bought Marlboro Lights, which Philip Morris says is the nation's most popular cigarette.
The 4-to-3 ruling by the Supreme Judicial Court overturned a lower court's decision and set the stage for what could become only the second such suit in the nation against manufacturers of so-called light and low tar cigarettes to go to trial, according to specialists in tobacco litigation.
5. We affirm the order of certification by the judge in the Superior Court of a class consisting of purchasers of Marlboro Lights cigarettes in Massachusetts during the four years preceding the filing of the plaintiffs' original complaint. . . .
This is a case about the propriety of a class certification decision. The issue is not, as the court puts it, "whether the marketing of Marlboro Lights as 'light' cigarettes that deliver 'lower tar and nicotine' may be challenged in a class action" under G.L. c. 93A, ante at ----; of course it may (emphasis added). The issue is whether this class of plaintiffs may bring that challenge. The proper focus in this case is, therefore, the constituency of the plaintiff class. . . .
In sum, the crux of my disagreement with the court concerns the sufficiency of the information presented by the plaintiffs in this case. Limited to the record before the motion judge, I do not think it is possible reasonably to conclude that the low-tar group is either so small as to be de minimis, or so unidentifiable as to permit class certification. By certifying a class that includes uninjured members, the motion judge effectively permitted precisely what we have criticized: a "purely 'vicarious suit[ ] by self-constituted private attorneys-general.'
The Supreme Judicial Court of Massachusetts on Friday said a group of smokers who bought Marlboro Lights cigarettes in the state could sue as a class.
Last year, a justice of the Massachusetts Appeals Court decertified the "lights" class action known as Aspinall, which alleged Philip Morris USA marketed its Marlboro Lights as safer than regular cigarettes.
"The judge's conclusion that the plaintiffs' claim warrants certification as a consumer class action is amply supported by the record," the ruling read, referring to an earlier ruling from a Superior Court, which had certified the class action.
Philip Morris USA is part of New York-based Altria Group Inc. MO.N , whose shares fell 90 cents, or 1.9 percent, to $46.48. Other tobacco-related shares were also lower. . . .
"We view this as a modestly negative development for the cigarette companies, since it is now likely that the case will need to go to trial," said Goldman Sachs analyst Judy Hong, who has an "in-line" rating on Altria and a "neutral" rating on the tobacco sector.
"The latest development is also consistent with our view that these 'lights' class action cases are unlikely to go away as quickly and as decisively as some market participants believe," Hong said.
Smokers who puffed on light and low-tar cigarettes can sue tobacco companies as a group on their claim that cigarette makers misled consumers into thinking such brands were less harmful than others, the Massachusetts high court ruled Friday. . . .
The decision overturns a lower court ruling that had decertified class-action status for a Massachusetts lawsuit filed against Philip Morris in 1998. Lori Aspinall, of Boston, and Thomas Geanacopoulos, of Ashburnham claimed the nation's biggest tobacco retailer deceived smokers into thinking Marlboro Lights were better for them than regular Marlboros. . . .
The case represents the latest front in the legal battle against the tobacco industry. Similar lawsuits have been filed in at least 11 other states.
Massachusetts, which has often been in the vanguard of legal challenges to the tobacco industry, will be so again today when the state's highest court considers whether the nation's biggest seller of cigarettes duped smokers into believing that "light" and "low tar" brands were safer than regular cigarettes.
In a case closely watched by antismoking activists and tobacco manufacturers across the country, the Supreme Judicial Court will hear arguments about whether an appellate judge overstepped her bounds by derailing a class-action suit against Philip Morris Companies Inc.