Email
Password
(Forgot Password?)
Stephen Tillery was the first lawyer to beat the tobacco industry in court over its marketing of light cigarettes -- but he never got the ultimate prize.
In 2005, the Illinois Supreme Court reversed a $10.1 billion verdict he won in Madison County Circuit Court in a class action case against cigarette maker Philip Morris.
But now, guided by an unrelated U.S. Supreme Court opinion last week, Tillery says he's preparing to revive the case and will try to collect.
A law professor predicts he will be thwarted by a small but key difference in the cases. . . .
Beckett said the recent U.S. Supreme Court decision involved the state of Maine's deceptive practice statute and whether it was preempted by a federal statute or FTC rulings.
Illinois is different, Beckett said, because its deceptive practices law has an exemption for companies that follow federal standards. "The Maine statute had no 'exemption' provision like the Illinois statute," Beckett said. Tillery's litigation may still have had an impact. Today, a pack of Philip Morris' Marlboro Lights is no longer emblazoned with the label "Lowered Tar & Nicotine."
Jump to full article »
Now that the Illinois Supreme Court has laid to rest Stephen Tillery's $10 billion class action against cigarette maker Philip Morris, Tillery can thaw out a similar suit against cigarette maker RJ Reynolds and start all over again.
The Fifth District appellate court issued a mandate Dec. 7, ending a four-year freeze on a Madison County class action against RJ Reynolds.
Tillery sued RJ Reynolds in 2000, claiming it deceived smokers into believing that light cigarettes provided health benefits in comparison to regular cigarettes.
This cause coming to be heard on the motion of the petitioner, Philip Morris USA, Inc., an objection having been filed by the respondents Sharon Price, et al., a reply having been filed by the petitioner, and the court being fully advised in the premises;
IT IS ORDERED that the motion for leave to file a petition for writ of mandamus or prohibition is denied. The motion for supervisory order is allowed. In the exercise of this court's supervisory authority, the circuit court of Madison County is directed to vacate its order of May 9, 2007, certifying questions for interlocutory appeal pursuant to Supreme Court Rule 308 in Price et al. v. Philip Morris USA Inc., No. 00 L 112, and to enter an order dismissing plaintiffs' motion to vacate or withhold final judgment pursuant to section 2–1203 of the Code of Civil Procedure . . .
JUSTICE FREEMAN, dissenting: . . .
the record shows that the federal government filed an amicus curiae brief on the merits in Watson, in which the federal government again declared: "The FTC has never promulgated official regulatory definitions of terms such as 'light' or 'low tar.' "
Indeed, continued the federal government: "Far from issuing detailed and specific regulations that govern respondent's marketing of light cigarettes, the FTC has not issued any such regulations at all." . . .
I do not believe that the question presented here can be characterized as being of such importance to the administration of justice that it necessitates this court's exercise of supervisory authority.
-5
The court's action today is entirely predictable because it quickly and quietly closes the book on a case that a majority of this court, I am sure, would rather forget. Had the court taken steps on rehearing to learn more about the various FTC actions that exist and thus render a more informed opinion, as I suggested at the time, we would not be in the situation that we are in today. I warned, in my dissent on denial of rehearing, that the court's suspect analysis with respect to the doctrine of primary jurisdiction would prove embarrassing over time. And indeed, time has not been kind to the plurality's conclusion that the FTC had "specifically authorize[d]" PMUSA's use of the terms "lights" and "lower tar." . . .
Given this turn of events, it is hardly surprising to see the court grant supervisory relief despite Philip Morris' utter failure to satisfy the criteria for this extraordinary remedy.
The Illinois Supreme Court on Wednesday dealt what is likely to be a decisive blow to St. Louis lawyer Stephen Tillery's efforts to resurrect his overturned $10.1 billion win against cigarette maker Philip Morris.
The court's 4-2 ruling effectively denies Tillery's argument that the court should reconsider its 2005 decision reversing the 2003 victory Tillery won from Madison County Circuit Judge Nicholas Byron. The court's order ends years of costly, high-profile tobacco litigation.
For the third time the Illinois Supreme Court has knocked down Stephen Tillery's $10.1 billion class action verdict against Philip Morris.
In an order this morning, the Court allowed the tobacco company's motion for a supervisory order blocking the 5th District Appellate Court from re-opening the case.
The Court directed Madison County Circuit Judge Nicholas Byron to vacate his May 9 order certifying questions of his jurisdiction to the 5th District. Byron dismissed the case in December 2006 at the command of the Supreme Court. . . .
In June Tillery reported to the Illinois Supreme Court that the U.S. Supreme Court had rendered an opinion in the other case vindicating his argument.
Five Illinois justices disagreed. Their brief order carried no signature. Justices Charles Freeman and Thomas Kilbride dissented.
Freeman wrote that the 5th District could have refused to hear it.
The Illinois Supreme Court has again snuffed out a $10.1 billion judgment in a Madison County class-action lawsuit against cigarette maker Philip Morris USA.
The decision Wednesday by the high court is the latest in a string of setbacks in the case for Belleville attorney Stephen Tillery, who won the judgment in 2003 on behalf of Illinois smokers of Marlboro Lights, only to have it thrown out on appeal. . . .
In January, Tillery told Byron the Illinois Supreme Court would likely change its mind on the case based on a brief filed for the FTC in a different case. The brief stated the FTC has never regulated the definition of "light" cigarettes. At Tillery's request, Byron in May issued a ruling that allowed Tillery to pursue another appeal.
The state Supreme Court on Wednesday ordered that Byron reverse his decision from May, killing the case again.
Tillery said he has another option available for reviving the case: filing a motion arguing that new evidence has emerged -- the FTC brief. . . .
Illinois Supreme Court Justice Charles Freeman wrote a dissent to the ruling Wednesday, saying the court should have learned more about the FTC's role. Freeman said he warned that the court's first ruling would eventually "prove embarrassing."
But one phrase emblazoned on packages for decades -- "Lowered Tar & Nicotine" -- is gone. Lawyer Stephen Tillery asserts he is largely responsible.
In 2003, Tillery and a team of lawyers won $10.1 billion in a class action lawsuit over claims that Philip Morris' "lowered tar & nicotine" marketing was a lie. It was the first win for an attorney fighting a tobacco company over consumer fraud. Almost simultaneously, Philip Morris wiped the proclamation from its packaging.
Anti-tobacco activists claimed a short-lived victory. Two years later, on technical grounds, the Illinois Supreme Court tossed out the case and Tillery's nearly $1.8 billion in fees.
Tillery refuses to admit defeat. He has pushed the lawsuit back to the state high court, essentially arguing the justices got it wrong.
The case highlights conflicting portraits of Tillery and the class action system. Like many trial lawyers, he sees himself as a prize fighter for consumers, keeping corporations honest. Critics say he may be that skilled boxer, but is in it only for the purse. . . .
In an interview, he talks rapidly about tobacco-specific nitrosamines, the psychology of smoking, nicotine addiction, Philip Morris' strategies, puff sizes and deep tissue lung cancers.
He is no longer just outlining the case that won him the biggest-ever award in Illinois. Tillery is trying to win it again.
His claim is that Philip Morris designed their cigarettes to fool Federal Trade Commission analysis machines to produce a lower readout of tar and nicotine than smokers actually inhale. He argues consumers thought they were getting something safer, because of that little phrase "Lowered Tar & Nicotine.". . . .
Don't expect him to give up soon. Even if he fails against Philip Morris, he represents plaintiffs in two nearly identical claims; lawsuits against cigarette companies Brown & Williams and R.J. Reynolds have already been filed in Madison County.
Now, anti-tobacco activists and Tillery say the U.S. high court has cast doubt on the extent to which the cigarette companies acted with federal power.
"We have found no evidence of any delegation of legal authority from the FTC to the tobacco industry association" which tested cigarettes for the trade commission, Justice Stephen Breyer wrote on behalf of the justices.
That position could help attorneys in some 20 states, including Tillery, who claim that Philip Morris violated state consumer fraud laws by hoodwinking smokers into believing that light cigarettes were less harmful than regular or full-flavor brands.
Tillery believes that decision and related legal briefs from the government saying companies were never specifically ordered or given approval to use the "light" label could help him persuade the Illinois Supreme court to reopen the Madison County case.
Philip Morris' parent corporation Altria Group issued a statement denying that Monday's ruling would effect lawsuits over light cigarettes. "Today's decision does not directly address the issue of whether (federal regulations on tobacco companies) prevents plaintiffs from suing under state consumer fraud laws," a statement said.
Today's decision does not directly address the issue of whether (federal regulations on tobacco companies) prevents plaintiffs from suing under state consumer fraud laws.Philip Morris statement on the Supreme Court's Watson ruling.
A judge whose $10.1 billion judgment against Philip Morris USA in a lawsuit over light cigarettes was thrown out on appeal is asking a court whether he can revive the case.
Madison County Circuit Judge Nicholas Byron this month asked the Mount Vernon-based 5th District Appellate Court of Illinois to rule whether he has authority to reopen the lawsuit, citing possible new evidence stemming from a separate tobacco case pending before the U.S. Supreme Court. . . .
But the attorney in that suit, Stephen Tillery of St. Louis, now says his original argument is supported by the U.S. solicitor general in a separate case before the nation's high court. Paul Clement -- the Bush administration's top Supreme Court lawyer -- said in the new case, Watson v. Philip Morris, that the FTC never authorized or ordered Marlboro Lights to be labeled as "lights" or use the words "lower tar and nicotine."
"There is no question the Supreme Court of Illinois got it wrong when it said the words were authorized by the FTC," Tillery said Monday. "The question now is what the courts can do about it."
Seventeen months after the Illinois Supreme Court struck down a Madison County judge’s $10 billion judgment against cigarette maker Philip Morris, the parties are back in court, arguing over whether to resurrect the case.
Former Illinois Gov. Jim Thompson, now an attorney with the Chicago firm Winston and Strawn, has filed a motion with the Illinois Supreme Court seeking to halt the plaintiffs’ attempt to resurrect the “light cigarette case.”
“The circuit court has threatened to plunge (Philip Morris) once again into a lengthy and expensive litigation, which can result in only one conclusion: that the dismissal of plaintiffs’ claims ordered by this court must stand,” Thompson wrote in his motion.
The filing was in response to a May 2 ruling by Madison County Circuit Judge Nicholas G. Byron, in which he is asking the Illinois 5th District Appellate Court to rule on whether he has jurisdiction to again preside over the case in light of new evidence. . . .
Tillery attacked the position of the justices who ruled that the FTC authorized the use of the term “light” cigarettes.
In asking the U.S. Supreme Court to review the Illinois Supreme Court decision, plaintiffs argued that the FTC made no such ruling.
“The FTC has never authorized any cigarette company the descriptor of the term low-tar or lights,” the plaintiffs argue in court documents on file in the case.
A St. Louis lawyer wants a $10.1 billion judgment against Philip Morris revived because of new evidence in a separate case before the U.S. Supreme Court.
Stephen Tillery said his original argument the tobacco giant fooled customers into believing Marlboro Lights were lower in tar and nicotine than regular cigarettes was supported by the U.S. solicitor general in a separate case.
Tillery's claim had been overturned by the Illinois Supreme Court, which said the Federal Trade Commission had approved cigarettes' "light" label, so Philip Morris could not be held liable for any implications.
But in a new case -- Watson v. Philip Morris now pending before the high court -- Paul Clement, the federal government's primary Supreme Court advocate, said the trade commission never approved or ordered tobacco companies to label their products, The St. Louis Post-Dispatch reported.
Madison County Circuit Judge Nicholas Byron and attorney Stephen Tillery have brought back to life a $10.1 billion light cigarette class action case that Byron dismissed last year under an order from the Illinois Supreme Court.
At a May 2 hearing Byron told Tillery that he would certify for appellate review a question on his jurisdiction in Price v. Philip Morris. . . .
At Wednesday's hearing Tillery said the U.S. Solicitor General took a position that the FTC did not authorize labeling of light cigarettes.
After reading from a brief in a case before the U.S. Supreme Court, Tillery said, "Directly contrary factually to the holding of the Illinois Supreme Court. Absolutely at odds with it."
The brief stated that the FTC never adopted any official regulatory definitions of the terms 'light' or 'low tar.'
"The question as I go forward is not whether or not this would change the result," Tillery said. "There is no doubt it changes the result."
The U.S. Supreme Court recently let stand an Illinois Supreme Court ruling for Philip Morris in Price v. Philip Morris, better known as the light cigarette consumer fraud case. Lost in the misguided jubilation expressed by some, however, is the miscarriage of justice for consumers and the disturbing tale of the corporate purchase of judicial elections.
Philip Morris, its counsel and allies such as the U.S. Chamber of Commerce contributed millions in 2004 to the successful campaign of Lloyd Karmeier for the Illinois Supreme Court, one of the most expensive judicial races in U.S. history. When the Price case subsequently came before the court, Justice Karmeier refused to recuse himself and provided the deciding vote. . . .
The U.S. Chamber of Commerce since has boasted of spending tens of millions of dollars to influence races around the country. As a result, Public Citizen has filed a complaint with the Internal Revenue Service because those contributions were not disclosed on the U.S. Chamber's federal non-profit tax forms, as required by law. This deception has spawned an elaborate shell game with the goal of stacking the courts with hand-picked pro-corporate judges. . . .
Interestingly, the Illinois Supreme Court recognized that Philip Morris had committed fraud under state law. But the court reversed the trial court judgment against the company on the unprecedented finding that Federal Trade Commission's consent agreements with two unrelated companies pre-empted Illinois law. It was that reversal that the U.S. Supreme Court let stand, and its decision will have broad repercussions and could weaken consumer fraud statutes nationwide.
Things are different in Canada, where the Competition Bureau recently took action to remove the "light" and "mild" terms from cigarette packs -- just as the European Union and other countries have done. The Competition Bureau took the additional step of expressing gratitude to the Illinois-based law firm of Korein Tillery, saying it had done a service to Canadian consumers in assisting the bureau with the ban.
We only can hope that by highlighting the enormous financial contributions made by corporations and their trade associations to candidates in judicial races, we can reverse the trend of buying justice at consumers' expense.
And we hope that at least some of the 440,000 consumers who die from smoking every year read about this case and know there is a "light lie" that will kill them.
Tillery on Monday said: "I continue to be of the belief that the Illinois Supreme Court -- at least the two justices who signed the so-called majority opinion -- were decidedly wrong in their analysis."
Tillery said actions taken by the FTC decades ago "cannot somehow be construed as authorization" to use the term "light" for cigarettes. He added that the use of that term and similar terms for cigarettes is a "fraud," and hopes children are not deceived by it.
Tillery added that his firm has helped the Canadian government, free of charge, to have the terms "light," "low-tar" and "mild" banned from cigarette marketing there. "We believe that the same type of thing should happen in this country," he said.
Ed Murnane, president of the Illinois Civil Justice League, a business-backed interest group, said: "This case was one of the many reasons for Madison County's bad reputation and 'judicial hellhole' description. With this book closed, we hope the changes and reforms promised by (Chief) Judge (Ann) Callis and her colleagues will continue to move Madison County's judicial system forward and that the tarnished image goes away."
Mark Gottlieb, director of the Tobacco Products Liability Project at Northeastern University School of Law, said the decision is "frustrating" because in August, a federal court found "that this same conduct violated the federal Racketeer Influenced and Corrupt Organizations statute in a lawsuit brought by the U.S. Department of Justice. It appears that Philip Morris has evaded responsibility for its conduct in Illinois."
Gottlieb added, "Philip Morris has engaged in this fraud in order to persuade addicted smokers concerned about their health that, short of quitting, they should smoke these 'light' brands. The problem is that they basically deliver the same amount of tar and nicotine to smokers as 'full-flavor' brands. This is a key way that Philip Morris keeps people smoking and, by extension, dying."
The U.S. Supreme Court refused to revive a $10.1 billion award against Altria Group Inc.'s Philip Morris USA, rejecting an appeal from smokers who said they were misled about the health risks of ``light'' cigarettes. . . .
The Illinois court's decision also blocked similar lawsuits in the state against Reynolds American Inc.'s R.J. Reynolds Tobacco and other cigarette makers.
The tobacco industry is still defending a separate, nationwide class-action lawsuit on behalf of light cigarette smokers in federal court in New York. . . .
The case is Price v. Philip Morris, 06-465.