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Appellate court upholds rejection of class-action status in smokers’ lawsuit  

The 1st U.S. Circuit Court of Appeals in Boston has let stand U.S. District Judge John Woodcock’s denial in November of class-action status to a group of people who sued Philip Morris USA over the firm’s marketing practices for light cigarettes.

A three-judge panel of the appellate court, which included Judge Kermit Lipez of Portland, on Feb. 22 declined to hear oral arguments before the litigation has been concluded.

“Even assuming that denial of class certification threatens to end the litigation,” the judges stated in their one-page ruling, “we conclude that the district court’s certification analysis is not sufficiently questionable to warrant interlocutory review.”

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Appellate court upholds rejection of class-action status in smokers' lawsuit  

BANGOR, Maine -- The 1st U.S. Circuit Court of Appeals in Boston has let stand U.S. District Judge John Woodcock's denial in November of class-action status to a group of people who sued Philip Morris USA over the firm's marketing practices for light cigarettes.

A three-judge panel of the appellate court, which included Judge Kermit Lipez of Portland, on Feb. 22 declined to hear oral arguments before the litigation has been concluded.

"Even assuming that denial of class certification threatens to end the litigation," the judges stated in their one-page ruling, "we conclude that the district court's certification analysis is not sufficiently questionable to warrant interlocutory review."

Bangor lawyer Samuel W. Lanham Jr. filed one of the country's first light cigarette lawsuits in August 2005 in federal court in Bangor on behalf of Lori A. Spellman of Levant and Stephanie Good and Allain L. Thibodeau, both of Bangor. Each smoked Marlboro Lights for 15 years or more.

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1st Circ. Declines Light Cigarette Class Cert. Row ($$) 

Law360, New York (February 23, 2011) -- The First Circuit on Tuesday declined to hear an appeal of the denial of class certification in a multidistrict litigation accusing Philip Morris USA Inc. of fraudulently marketing its so-called light cigarettes as less harmful than regular cigarettes.

The U.S. Court of Appeals for the First Circuit denied the plaintiffs' bid for an interlocutory appeal, allowing a district court ruling denying class certification in four lights cases to...

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Federal Court Refuses to Give Judge Gladys Kessler's Tobacco RICO Decision Issue Preclusive Effect in Light Cigarettes Litigation 

It's the question a defense lawyer seldom actually confronts head-on, but one that is always at the front of his or her mind: how can the judgment against my client in one case be used to bind it in other cases?

Or, for you law review types: will the findings of fact and conclusions of law in this case subject the client to non-mutual collateral estoppel in a subsequent case? . . .

Recently, the question of issue preclusion was presented to a federal court in Maine that was presiding over a multidistrict litigation involving cases alleging fraud and unjust enrichment against Philip Morris and Altria for their allegedly fraudulent promotion of "light" cigarettes as being safer than ordinary cigarettes. See In re: Light Cigarettes Marketing Sales Practices Litigation, MDL Docket No. 1-09-MD-2068 (D. Me. Mar. 5, 2010).

In 2006, a federal judge in the District of Columbia -- the Honorable Gladys Kessler -- had issued a mammoth final judgment in a civil RICO case that had been brought by the Department of Justice against the entire tobacco industry. See United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff'd in part and vacated in part, 566 F.3d 1095 (D.C. Cir. 2009), petition for cert. filed (Feb. 19, 2010). That landmark case had proceeded for more than 7 years. It was tried to the judge; there was no jury. Judge Kessler had issued some 4,088 separate factual findings, and found the industry liable for a variety of alleged schemes to defraud.

The plaintiffs in the MDL pending in Maine wanted to use more than a thousand of Judge Kessler's findings of fact to bind Philip Morris and its parent, Altria, in the subsequent civil class action cases brought by individual smokers under state consumer protection laws and for unjust enrichment. Chief Judge John A. Woodcock, Jr., who is presiding over the Light Cigarettes MDL, thus was confronted with whether to impose non-mutual collateral estoppel on the defendants. . . .

But Chief Judge Woodcock had many doubts about whether the identity of issues requirement was met. Many of Judge Kessler's findings referred to the "Defendants" and were not specific to Philip Morris or Altria. He reasoned that it would be unfair to hold those two companies liable for the collective wrongful acts of all tobacco companies. Moreover, the "light cigarette" scheme was only one of six that Judge Kessler had held the industry liable for in her opinion, and it was unclear how heavily if at all, her judgment relied on the specific actions of Philip Morris and Altria regarding light cigarettes.

In addition, the period of time relevant to Judge Kessler had been fifty years. In contrast, many of the suits pending in Maine had much shorter proposed class periods that began near the time of Judge Kessler's opinion. Thus, the overlap of time may not be identical. . . .

Ultimately, Chief Judge Woodcock applied the Supreme Court's decision in Parklane Hosiery Co. v. Shore, 439 U.S. 329 (1979) to decide against giving Judge Kessler's findings issue-preclusive effect in the cases before him. In Parklane Hosiery, the Supreme Court had counseled that where issue preclusion is being used by someone who was not a party to the prior suit, certain public policy and fairness factors also must be considered. Slip op. at 3.

Weighing those factors, Chief Judge Woodcock noted that the defendants had been deprived of a jury trial before Judge Kessler, whereas they would be entitled to one in the actions pending before him. He also expressed the very practical concern about "the possibility for jury confusion and the lack of efficiency." . . .

Interestingly, Chief Judge Woodcock did not seem to take a position on one of the defendants' arguments that I found most logical and compelling: namely, that applying issue preclusion would be unfair under Parklane Hosiery because the defendants routinely had won jury verdicts in cases involving light cigarettes, and thus Judge Kessler's findings did not stand uncontradicted and could not be given preclusive effect without arbitrarily favoring one judgment over another. Id. at 7-8.

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IN RE: LIGHT CIGARETTES MARKETING SALES PRACTICES LITIGATION (PDF) 

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

The Plaintiffs have brought a class action on behalf of purchasers of light1 cigarettes manufactured by Philip Morris USA, Inc. and Altria Group, Inc. (the Defendants). In this initial motion, the Plaintiffs seek certification for classes of smokers in the states of California, Illinois, and Maine as well as the District of Columbia.2 The Court concludes that common issues do not predominate and denies class certification for all four classes. . . .

On March 29, 2010, the Plaintiffs moved for class certification in California, Illinois, Maine, and the District of Columbia. Pls.’ Mot. to Certify Class . . .

Because none of the four classes has met any of the requirements under 23(b), class certification is inappropriate.

III. CONCLUSION

The Court DENIES the Plaintiffs’ Motion for Class Certification (Docket # 186).

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Judge denies class action in cigarette lawsuits  

A federal judge in Maine yesterday denied class-action status to four lawsuits accusing Philip Morris USA of misleading smokers about the health risks of light cigarettes.

The ruling by U.S. District Judge John A. Woodcock Jr. concerns lawsuits that were filed in Illinois, Maine, California and Washington, D.C., alleging that Henrico County-based Philip Morris USA marketed light cigarettes as healthier than regular cigarettes in violation of various consumer-protection and false-advertising laws.

The lawsuits are among 15 cases that were consolidated for pre-trial proceedings in federal court. In his ruling, Woodcock said the plaintiffs had not met the requirements for class-action status.

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• IN RE: LIGHT CIGARETTES MARKETING SALES PRACTICES LITIGATION  

Because the Plaintiffs‘ Second Amended Class Action Complaint relates back to their original complaints, which were filed before the passage of the Class Action Fairness Act, Pub. L. No. 109-2, 119 Stat. 4 (2005) (CAFA), the Court concludes that CAFA does not apply and grants Plaintiffs‘ Motion to Remand (Docket # 245) (Pls.’ Mot.).

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• Federal Court Denies Class Certification in Four "Lights" Cigarettes Cases in Multi-District Litigation 

Philip Morris USA (PM USA) said today that a federal trial court denied class-certification in four separate cases in which smokers seek refunds for "Lights" cigarettes they smoked.

The district court ruling was issued in the In re Light Cigarette Marketing Sales Practices Litigation, a Multi-District Litigation in which pretrial proceedings in various "Lights" cases are being coordinated in the federal district court in Maine. In his decision today, the judge concluded that "common issues do not predominate" and that class certification was therefore inappropriate for cases originally pending in Illinois, California, Washington DC and Maine. The ruling in the four "exemplar" cases, two of which were selected by plaintiffs, is intended to guide the court and parties in the fifteen remaining cases pending in or awaiting transfer to the Multi-District Litigation proceedings.

"We believed this court ruled correctly in denying class-certification in each of the four cases, including the two cases hand-picked by plaintiffs," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA. "As courts around the country have overwhelmingly recognized, cases involving smokers present a wide array of individual issues and are inappropriate for class-action treatment."

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FISHER: The Most Credible People On Earth? Cigarette Makers  

A federal judge in Maine has kept alive a lawsuit against Philip Morris over "light" cigarettes, in a ruling that ascribes as much misplaced credibility to the plaintiffs as they gave to the cigarette company themselves.

In a 15-page opinion, U.S. District Judge John A. Woodcock refused to chuck out the suit, one of many in which plaintiff lawyers seek to collect the difference between what consumers paid for "light" cigarettes and what they would have paid in some alternative universe where they knew the cigarettes were unsafe. The Second Circuit wisely overturned Judge Jack Weinstein's certification of a similar class action in 2008, saying it's impossible to determine all the different reasons people choose to smoke a particular cigarette.

Woodcock isn't buying that theory, or at least not at this stage of the litigation. With acceptance bordering on naivete, he accepts the arguments of plaintiff lawyers that the six representative smokers began huffing on lights because of deceptive advertising by Philip Morris, a unit of Altria Group. Because of that original sin, lawyers argue, they're entitled to money even thought they kept smoking lights after they learned "the truth."

What "truth" is that? Clearly not the warning emblazoned on every pack of cigarettes, from the U.S. Surgeon General, that using them as intended will kill you. No, these smokers were in thrall to the cigarette advertisements that said light cigarettes were potentially less deadly than other cancer sticks. One plaintiff -- still smoking lights as of the deposition -- testified advertisements made her believe "it's a healthier, lighter cigarette."

Nowhere does the judge ask the reasonable question: How did the cigarette ad men pull this off? Are they mind-control wizards? . . .

Phillip Morris lawyers told Law.com they were heartened by some of the language in the opinion that suggests tough going for the lawyers if they try to make the six plaintiffs representatives for a nationwide class. . . .

But the game in all these cases is first to survive summary judgment. After that the odds of a settlement -- and lucrative fees for the lawyers who found these stupendously credulous smokers -- go up dramatically.

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• IN RE: LIGHT CIGARETTES MARKETING SALES PRACTICES LITIGATION (PDF) 

The Court DENIES Philip Morris USA, Inc.‘s Motion for Summary Judgment on Plaintiffs‘ Claims for Lack of Causation (Docket # 183). . . .

In this multi-district litigation, Philip Morris USA, Inc. (PM) moves for summary judgment against six plaintiffs on the ground that because they continued to purchase light cigarettes after learning the truth about their health risks, as a matter of law, they cannot show that PM‘s misrepresentations caused them to buy light cigarettes.1 The Court concludes that whether these plaintiffs relied on PM‘s misrepresentations is a factual question and denies PM‘s motion. . . .

Regardless whether the plaintiffs in Prohias could not or did not allege a plausible reason for their continued purchases, the six Plaintiffs in this case have: they assert that they have continued to purchase light cigarettes because they are addicted to them. Such testimony prevents the Court from concluding that as a matter of law the Plaintiffs received the benefit of their bargain.

PM responds that because the Plaintiffs could have switched to other brands of cigarettes, their continued smoking of light cigarettes suggests non-health related reasons for their purchases. . . .

Whether the Plaintiffs‘ continued purchases of light cigarettes will undermine their ability at trial to prove reliance on PM‘s alleged misrepresentations is a question of fact. . . .

III. CONCLUSION

The Court DENIES Philip Morris USA, Inc.‘s Motion for Summary Judgment on Plaintiffs‘ Claims for Lack of Causation (Docket # 183).

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• Judge Rules Continued Light Cigarette Purchasers Can Remain in Philip Morris MDL 

Six plaintiffs who accuse Philip Morris of misleading smokers with "light" branded cigarettes survived a summary judgment motion on Thursday, allowing their claims against the tobacco company to remain part of federal multidistrict litigation underway in Maine.

Philip Morris had argued that, as a matter of law, the six plaintiffs could not show that PM's alleged misrepresentations about safety caused them to continue smoking light cigarettes because they kept using the products after learning of the health risks involved. The plaintiffs countered that they were addicted and were incapable of stopping, and they invoked public policy considerations in maintaining that Philip Morris should not benefit from the addictive nature of their product.

In a 15-page opinion (pdf), Chief Judge John Woodcock of federal district court in Bangor ruled Thursday that the six plaintiffs' argument that they relied on Philip Morris' misrepresentations concerning the safety of light cigarettes was an issue for trial.

"[The plaintiffs] assert that they have continued to purchase light cigarettes because they are addicted to them," Woodcock wrote. "Such testimony prevents the Court from concluding that as a matter of law the Plaintiffs received the benefit of their bargain."

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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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