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MILLHISER: Narrowly Dodged Bullets: John Roberts’s Dissenting Opinions 

Roberts's 5-4 giveaways to corporate America only tell half the story. Indeed, Roberts has authored or joined numerous radical dissents that would give powerful corporate interests sweeping immunity from the law. This stands in stark contrast to his confirmation hearing promise to display "humility" and accept his own "modest role" as a justice. . . . .

# Deceptive marketing: Finally, Roberts voted to cut off deceptive advertising claims in Altria v. Good. In his eyes the tobacco industry should have extensive immunity from state laws preventing fraudulent marketing.

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Roberts rarely finds himself in dissent since he leads a bloc of conservatives committed to protecting corporate interests. Nevertheless, his few dissenting opinions in corporate immunity cases reveal a willingness to aggrandize corporate power even more so than he already has in cases like Citizens United or Rent-a-Center.

Such zealous advocacy would be entirely appropriate were Roberts still an attorney for corporate interests. He gave up that role, however, when he became a judge. It’s time for him to live up to his promise to be modest and humble in his decision making.

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• Case of light cigarettes may return to top court  

A lawsuit over the marketing of light cigarettes could be headed back to the U.S. Supreme Court after a federal judge denied a motion to apply facts found in a previous case to the current one.

U.S. District Judge John Woodcock said in a 16-page decision issued Friday that it would not be fair to the litigants to apply the facts found by a judge in a jury-waived criminal trial in a case brought by the U.S. Department of Justice against tobacco companies to the potential class-action civil suit.

The lawsuit contends smokers of Marlboro Lights, Virginia Slims Lights and other light cigarettes were misled into thinking that the cigarettes contained less tar and nicotine than regular cigarettes.

Attorneys for the plaintiffs, who live all over the country, had asked Woodcock to apply the doctrine of collateral estoppel to the current case and adopt the facts found in the 2005 verdict in which a federal judge in Washington, D.C., concluded cigarette makers had violated racketeering statutes.

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• National tobacco case to be heard in Bangor  

Attorneys from around the country descended Wednesday on the federal courthouse in Bangor for a conference on a class-action lawsuit against the makers of light cigarettes.

It is the first multidistrict litigation case ever assigned to U.S. District Court in Bangor.

Multidistrict litigation, or MDL, is the label the federal judiciary gives cases filed against the same party or parties in federal courts around the nation. Once cases have been combined, a three-judge panel assigns them to one federal judge.

At least 20 lawsuits from around the country have been combined in Bangor. The MDL has been assigned to U.S. District Judge John Woodcock, who has not handled one since his appointment to the federal bench in 2003. Moreover, the original Maine case that led to the 20-case MDL is once again in the hands of Woodcock, whom the U.S. Supreme Court reversed last year.

In a 5-4 a split won by the court’s liberals, the justices ruled in December that smokers may use state consumer protection laws to sue cigarette makers for the way they promote “light” and “low tar” brands. . . .

No hearings in the case will be held until January or February. Once Woodcock rules on whether the facts in a landmark case upheld earlier this year by the U.S. Court of Appeals for the Washington, D.C., Circuit can be applied to the MDL case, his decision is expected to be appealed to the U.S. 1st Circuit Court of Appeals in Boston. That decision also could go to the U.S. Supreme Court.

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• Local smokers’ lawyers fired up for 'light' cigarette fraud claims  

Michael Dahl has smoked two packs of Camel Lights every day for more than 20 years. David Scott Huber has smoked nearly a pack of Camel Lights, Winston Select or Winston Lights every day for the past 10 years. The two Minnesotans are now suing the cigarette manufacturer, R.J. Reynolds Tobacco Company, on behalf of all people in the state who have smoked their “light” brands over the years.

The plaintiffs aren’t claiming that their health has suffered as a result of their tobacco use, but rather that they were deceived by the company’s advertising and marketing about the nature and effect of smoking “light” cigarettes.

The case stalled for a while due to a split in the U.S. circuit courts over whether the claims were pre-empted. But the decision from the U.S. Supreme Court last month in Altria Group Inc. v. Good that state law fraud claims relating to cigarette packaging and marketing are not pre-empted by federal law has allowed Dahl, Huber and many other plaintiffs to begin moving forward again.

Minneapolis attorney Gale Pearson, one of the attorneys representing the plaintiffs, said it’s important the tobacco companies don’t get away with deceiving customers into thinking light cigarettes are better for them than regular cigarettes.

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'Light' cigarette claims are heating up 

Last month’s U.S. Supreme Court decision in Altria Group Inc. v. Good, allowing plaintiffs to proceed with their claims over the marketing of “light” cigarettes, has revived lawsuits all over the country — and may inspire even more.

The Good case originated in Maine, but cases have been filed in many other states as well, including Minnesota, Missouri and Massachusetts, according to Minneapolis appellate attorney Kay Nord Hunt, one of the attorneys representing the Minnesota plaintiffs.

“Each state has its own version of consumer protection laws. [So they will] all be a little bit different,” she said.

Doug Blanke, director of the Tobacco Law Center at William Mitchell College of Law, said that the Good ruling removes one of the big clouds that has been hanging over these cases.

“It’s sort of a green light to go forward, or to file a new one,” he said. “It would be reasonable to think that this would encourage the filing of more cases or the energizing of cases that already exist.”

Blanke noted that plaintiffs in the light cigarette cases still face a number of other hurdles, however.

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EDITORIAL: Give FDA tobacco role 

If you're selling a product known to kill people, you face a knotty marketing problem: You must somehow persuade your customers to keep paying for it, and often pay more, but never exactly admit just how deadly it is. If you're the tobacco companies, the solution is simple: You lie.

Now that the U.S. Supreme Court has dealt a sharp legal blow to the nicotine fibmasters, clearing the way for a bunch of potentially costly lawsuits, the next logical step is up to Congress: It must finally pass a bill that lets the Food and Drug Administration regulate tobacco products and the marketing practices that sell them.

This month the Supreme Court held that smokers can use state consumer protection laws to sue over deceptive marketing. . . .

But wouldn't it be better if we had a more effective cop on the tobacco beat, preventing companies from issuing lethal lies in the first place? That's the purpose of the FDA bill, which passed the House overwhelmingly on July 30 and has a large number of sponsors in the Senate. (Before he resigned his seat, President-elect Barack Obama, who admits that quitting smoking has been tough, was among them.)

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Door opens for 'light' cigarette claims  

After the Court's Dec. 15 ruling in Altria Group v. Good, "every plaintiffs' lawyer in any action against the cigarette industry will now include at least one count for fraud because they can be sure that cause of action will not be preempted by federal law," said Richard Samp, chief counsel at the Washington Legal Foundation, who filed an amicus brief in the case on behalf of Altria Group.

Samp worried that the ruling could give plaintiffs who are time-barred from bringing tobacco tort suits a new litigation weapon.

"Any half-right lawyer knows how to make a tort action into a fraud action," Samp said.

But Robert Peck, a constitutional litigator and scholar from the Center for Constitutional Litigation in Washington, sees it differently.

"I don't think [the decision] makes a great deal of difference," said Peck, who filed an amicus brief on behalf of the smokers.

Noting that other similar cases have already been filed across the country - and were simply stayed while the Supreme Court considered Good - Peck said: "I don't think anyone hesitated to bring such an action previously, and I don't think it will open the door to new cases." . . .

The ruling "gives the green light to the victims of the tobacco industry's 'light' cigarette scam to have their case heard before a jury of their peers," said Edward L. Sweda, Jr., senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, who attended the oral arguments in the case.

Les Weisbrod, president of the American Association for Justice, said he hoped the ruling signaled that the Court has a desire to protect consumer actions and prevent companies from using preemption as an immunity shield.

"We hope that the Court continues to look at claims of corporate immunity from the perspective of consumer health and safety, and continues to support the rights of consumers to get justice through the courts," Weisbrod said.

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• Decision opens door to Wisconsin smoker suits  

In light of the U.S. Supreme Court opinion last week in Altria Group v. Good, Wisconsin consumers can plausibly sue tobacco companies under at least two different statutory provisions, sec. 100.20 and sec. 100.18.

Section 100.20, entitled "Methods of competition and trade practices", provides generally, "(1) Methods of competition in business and trade practices in business shall be fair.

Unfair methods of competition in business and unfair trade practices in business are hereby prohibited."

This is, for all material purposes, identical to the Maine statute at issue, which provides, "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful." Me.Rev.Stat.Ann., Tit. 5, sec. 207.

However, sec. 100.18 of the Wisconsin statutes, entitled "Fraudulent representations," is even more applicable to suits alleging that the marketing of light cigarettes is misleading . . .

The downside to suing under sec. 100.18 is that it contains a three-year statute of repose, and the discovery rule does not apply, limiting the potential damages, and the number of potential plaintiffs. . . .

One problem consumers are likely to face should they bring similar suits in Wisconsin is that the "unconscious" and "unknowing[]" behaviors described above are frequently not unconscious or unknowing.

Many smokers of light cigarettes who engage in these nicotine-enhancing behaviors do so "unconsciously" only in the respect that, having consciously done so for so many years, the behaviors become subconscious.

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Fitch: No Rating Action on Altria v. Good U.S. Supreme Court Ruling 

While the ruling may negatively affect Altria Group, Inc. (Altria) and the tobacco industry, Fitch Ratings assesses the credit risk from legal rulings in the context of probability of adverse monetary judgment in the near- to intermediate-term. At this stage, it is too early to determine if, as a result of the Supreme Court's ruling, any adverse monetary judgment is likely to be entered against tobacco industry participants which could impact their credit profiles.

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SUPREME COURT DECISION PROMPTS MOVE TO RE-OPEN PHILIP MORRIS LAWSUIT 

On Thursday, December 18, 2008, St. Louis attorney Stephen Tillery of Korein Tillery filed a motion in the case of Price v. Philip Morris (Madison County, Illinois Circuit Court, cause No. 00-L-112) to re-open the $10.1 billion judgment in Price v. Philip Morris based on a decision of the U.S. Supreme Court rendered earlier this week. . . .

“The final order dismissing the Price case was not actually entered until December 18, 2006. When it ruled earlier this week, the U.S. Supreme Court decision came just a couple of days before the two year deadline under Illinois law which allows challenges to set aside judgments,” said Stephen Tillery.

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Americans Split on Light Cigarette Court Ruling 

Adults in the United States are divided over a recent Supreme Court decision, according to a poll by Rasmussen Reports. 42 per cent of respondents believe smokers should be able to sue tobacco makers for advertising claims related to light cigarettes, while 45 per cent disagree.

In addition, 22 per cent of respondents believe cigarette companies should be held financially liable for health problems that develop if someone smokes a cigarette today.

On Dec. 15, the U.S. Supreme Court ruled--in a 5-4 decision--that smokers can seek legal action against tobacco companies in state court for making fraudulent claims related to light cigarettes, which purportedly have lower tar and nicotine levels. Justice John Paul Stevens wrote that the companies that sold these products had a "duty not to deceive" the public through advertising or marketing. . . .

The Supreme Court ruled on Monday that smokers could sue tobacco makers for advertising claims over so-called "light" cigarettes that they claim are fraudulent. Do you agree or disagree with this ruling?

Agree

42%

Disagree

45%

Not sure

12%

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Altria Ruling Ignites Legal Moves  

Mr. Tillery says the U.S. Supreme's Court's 5-4 decision "eviscerates" the legal basis for the Illinois court's ruling and could breathe new life into his case. He was nearing a final deadline for finding a basis to revive the suit.

Altria spokesman Jack Marshall said the Illinois plaintiffs have tried once before to have the case reopened and were rebuffed by the state Supreme Court. "We believe the plaintiffs' second attempt is also meritless and will be rejected by the Illinois courts," Mr. Marshall said. . . .

"An entire class of litigation has been revived thanks to [the] ruling," said Edward Sweda, an attorney with the Northeastern University's Tobacco Products Liability Project. "Those lawsuits were on the precipice of being eliminated."

Mr. Sweda said there are roughly 40 cases pending in 22 states. The Illinois case that Mr. Tillery is attempting to revive is the only one that has gone to trial, Mr. Sweda said.

Adding to those numbers, a new class-action lawsuit making similar allegations was filed in New York federal court Thursday by a Flushing, N.Y., man seeking economic damages on behalf of New York smokers of Marlboro Lights.

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• ‘Light’ cigarette ruling will reignite Minnesota tobacco litigation  

A recent U.S. Supreme Court ruling breathed new life into at least three local cases against Big Tobacco that had been in danger of being snuffed out.

In a 5-4 ruling early last week, the nation’s highest court found that smokers are not barred by federal law from suing cigarette makers for deceiving them about the health risks from “light” cigarettes.

While Minnesota entered into a $6 billion settlement with cigarette manufacturers in 1998, the agreement only blocks state suits, not private litigation. The issue locally was whether federal cigarette labeling and advertising law pre-empted a fraud action brought under Minnesota law. A year ago, the Minnesota Court of Appeals ruled in Dahl, et al. v. R.J. Reynolds Tobacco Co., et al. that federal law did not shield tobacco companies from state-law fraud and misrepresentation claims over how they advertised “light” cigarettes. R.J. Reynolds sought review from the Minnesota Supreme Court, which stayed the case pending the U.S. Supreme Court’s resolution of the case decided last week.

The U.S. high court decision paves the way for the R.J. Reynolds case – and two other similar cases in Minnesota trial courts – to proceed to trial, according to Kay Nord Hunt, one of the attorneys representing the R.J. Reynolds plaintiffs on appeal.

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EDITORIAL: Suit shows that there are no real 'light' cigarettes  

According to the complaint, the tobacco companies were aware of this phenomenon, but continued to market light cigarettes, touting their tar and nicotine content.

In this case it may seem a small distinction, but it's an important one: Touting that cigarettes are low in tar and nicotine is not the same as promising they're safe or safer. It's the smoker, not the company, that engaged in the compensating behavior, so in the end it may well be that the companies will not be held liable.

The tobacco companies are not blameless in the long history of smoking related illness and death. But there is a point at which consumers can and should be expected to know better.

Knowing what we know, there is a legitimate public-policy debate to be had over whether all cigarettes should be outlawed. But as long as they're legal, it is up to individuals to protect themselves from this hazard by choosing not to use a product that is never safe to use in any formulation.

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71% Say Tobacco Companies Not Liable for Smoker Health Problems  

The Supreme Court on Monday opened up another avenue for smokers to sue tobacco companies, but 71% of U.S. voters say the companies should not be held liable for health problems that current smokers develop.

Twenty-two percent (22%) say the companies should be held liable, and eight percent (8%) are undecided in a new Rasmussen Reports national telephone survey taken Monday and Tuesday nights.

Among smokers themselves, 34% say the companies should be held liable, while 62% say they should not be. Seventy-one percent (71%) of former smokers say the cigarette companies are not to blame, but 21% disagree.

These numbers are nearly the same as those in a survey in February 2007. Thirty-four percent (34%) of African-Americans believe the tobacco companies should be held liable, compared to 19% of whites. . . .

Voters are more evenly divided over the new high court ruling itself. Forty-five percent (45%) disagree with the Supreme Court decision that smokers could sue tobacco makers for advertising claims over so-called “light” cigarettes that they claim are fraudulent.

But 42% agree with the ruling, with 12% undecided.

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