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Opinion analysis: Wal-Mart’s two messages 

The constitutional overtones that seemed to lie behind some of Justice Scalia’s observations about the need to ensure that companies sued in class-action cases get a full opportunity to defend themselves by challenging each class member’s claims may figure in what the Court now does with another class-action case on its docket. That is the case of Philip Morris USA, Inc., et al., v. Jackson (docket 10-735). That is a case that turns entirely on constitutional questions — a massive class-action lawsuit against the nation’s major cigarette companies in Louisiana state court that resulted in an award of $270 million to a class of former smokers.

Justice Scalia stayed that ruling last September. The Court has been holding the case until it decided the Wal-Mart case. It now is expected to take action on that case; its options include granting the case, or sending it back to Louisiana courts to consider the impact of the Wal-Mart decision. Since the Wal-Mart decision turns mainly upon the meaning of a federal court rule (Rule 23) that does not apply to class-action lawsuits in state court, it is unclear how much specific guidance state courts could take from Monday’s decision.

The Louisiana case is likely to go before the Justices in a private Conference before they recess for the summer.

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Another big class-action test  

The long-running controversy over consumers' complaints pursued through large class-action lawsuits is building anew in the Supreme Court as the new Term dawns. Following up the recent appeal on class-action issues in the federal courts in the Wal-Mart Stores case, major tobacco companies are challenging the handling of such cases in the state courts. At this point, Justice Antonin Scalia is pondering the tobacco companies' plea to temporarily stay a Louisiana court ruling pending a coming appeal.

The tobacco firms' petition, due later this year, will ask the Court to decide what limits the Constitution's due process clause imposes on class-action litigation in the state courts. "This case," the companies argued in their stay application, "presents an ideal vehicle for the Court to provide much-needed guidance on the extent to which the Due Process Clause establishes minimum requirements in the context of class-action adjudication….Confusion among lower courts over the requirements of due process…is especially evident in decisions dealing with proposed class actions asserting health-related fraud and other tort claims against manufacturers of mass consumer products, including cigarette manufacturers."

The companies are facing a state court order to pay more than $241 million into a ten-year, court-supervised program to help smokers stop using cigarettes. (As of now, they say, more than $29 million has been tacked onto that amount in interest.) On Sept. 14, Justice Scalia temporarily blocked the duty to pay the money into the fund, while he studied the stay issue. He could decide that on his own, or share it with his colleagues.

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Another major class action dispute 

The nation's major tobacco companies ask the Supreme Court to overturn a $270 million smoking-cessation program mandated by a Louisiana state court. The case is a major new challenge to the class-action approach to consumer grievances.

In a new sign that the spreading use of class-action lawsuits is creating major new controversy for the Supreme Court, the nation's major tobacco companies on Thursday mounted a broad constitutional challenge to use of that device as a way to get around examining the specific claims of individuals who claim injury. The case arrived at the Court even as the Justices were preparing to consider taking on a case on the legality of a huge class-action claim against Wal-Mart Stores, the popular discount retailer. The new petition in the tobacco case, Philip Morris USA, et al., v. Jackson, et al., has been docketed as 10-735. Its filing follows a favorable temporary ruling for the companies by Justice Antonin Scalia in September. . . .

Here is the question the petition presented: "Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to class members' individual claims." At issue is an award that is now estimated at $270 million.

Justice Scalia, in his Sept. 24 order temporary staying the mandated program to encourage smokers to give up the habit, wrote that "the extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question." Scalia, acting in his role as Circuit Justice, noted the "national concern over abuse of the class-action device."

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Scalia Stays $270 Million Tobacco Verdict, Hints At Reversal  

A $270 million tobacco verdict in Lousiana might be in trouble, as U.S. Supreme Court Justice Antonin Scalia has ordered the action stayed while the high court mulls adding it to its schedule. In a 5-page opinion issued late Friday, Scalia said the Louisiana courts may have erred by refusing to allow Philip Morris and other cigarette companies to question individual plaintiffs about whether they relied on false statements to continue smoking. Since it is “significantly possible that the judgment below will be reversed,” Scalia said, he would exercise his seldom-used power to stay the action until the court takes it under review.

The class action was cleverly constructed to consist only of Louisiana smokers, and sought money for smoking-cessation programs instead of individual cash payments. That relieved the lawyers of proving that individual smokers actually believed cigarette marketing materials more than the U.S. . ..

• Scalia Gives Big Tobacco $270 Million Reprieve  

Supreme Court Justice Antonin Scalia has temporarily blocked a state court order requiring tobacco companies to pay $270 million for a smoking cessation program in Louisiana.

Scalia granted a request from the companies on Tuesday, but said he would reconsider his order later this month after hearing from Louisiana plaintiffs who won a class-action lawsuit against the cigarette makers.

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Justices Back Small Tobacco Firms ($$) 

A group of 30 states failed to persuade the Supreme Court to review whether three small tobacco companies can use one lawsuit to challenge state-by-state payment requirements related to a massive 1998 industry settlement.

The court's decision not to consider the appeal means the three companies can proceed, in a New York federal court, to challenge payments to state accounts established to cover damages in tobacco lawsuits.

The companies had challenged provisions of the settlement under which all tobacco companies -- even those that didn't participate in the settlement -- are required to make annual payments to the states in perpetuity, an amount estimated to reach $243 billion over the first 25 years.

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SAMUELS: Tripping Up on Trips: Judges Love Junkets as Much as Tom DeLay Does 

it must be noted that Mr. DeLay's junket habit is something he has in common with the nation's judiciary, which he has criticized so many times for the wrong reasons. (Recall, for example, his threatening anti-judge screed in the aftermath of the Terri Schiavo case.) In 2000, the year of Mr. DeLay's lobbyist-financed St. Andrews trip, nearly 100 federal judges engaged in distressingly similar behavior. These judges attended all-expenses-paid private seminars for judges held at resorts offering excellent golf, tennis, skiing and spa services. The trips were underwritten by monied interests out to influence judges to rule in favor of corporate interests on issues like environmental protection and liability for harmful products.

Just as Mr. DeLay's Scotland trip with Mr. Abramoff was treated in official filings as privately sponsored "fact-finding," the judicial seminars are conducted under the innocuous-sounding banner of "judicial education." In reality, these slanted multiday sessions mock the ideal of an independent, impartial judiciary, and pose a threat to the appearance and reality of judicial integrity.

And it's not just judges from the lower federal courts who have deluded themselves into thinking that their trips will not undermine public trust. Just remember Justice Antonin Scalia's duck-hunting trip with Dick Cheney in 200 . . .

In September, Justice Scalia showed he'd learned little from the episode when he failed to attend the swearing-in of Chief Justice John Roberts Jr. because he was teaching a seminar for the Federalist Society at the exclusive Beaver Creek ski area in Colorado. Justice Scalia permitted the society, an influential conservative legal group, to promote the event to lawyers, some of whom may have matters before the Supreme Court now or in the near future, as "a rare opportunity to spend time, both socially and intellectually," with a justice. The pitch had all the dignity and subtlety of a capital fund-raiser for a senior Ways and Means Committee member. . . .

Embarrassed by ethics scandals, the Republicans who run Congress seem poised to enact new lobbying reforms, including a crackdown on lobbyist-financed travel. While they are in cleanup mode, why don't they also bar special interests from wining and dining the judiciary? Although the rules for judges might wisely include a few separate wrinkles - like an overdue judicial pay raise or a small pot of money to underwrite real judicial educational programs - the basic principle is the same. Members of Congress should not be accepting compromising free trips or other gifts, and neither should federal judges.

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Tobacco Trial Continues 

Testimony was scheduled to resume Tuesday morning in New Orleans in the state's class-action lawsuit against the tobacco industry.

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Louisiana Court to Hear Suit Against Tobacco Companies, AP Says 

The Louisiana Supreme Court rejected cigarette companies' request that a class-action trial include testimony on the actions of individual smokers, Associated Press reported.

The court said the trial's first phase will focus on allegations such as marketing of cigarettes to children, the manipulation of nicotine levels and whether the industry engaged in fraud and conspiracy, AP reported.

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• La. Tobacco Trial Plan Rearranged 

NEW ORLEANS (AP) - In a blow to the tobacco industry, the Louisiana Supreme Court on Friday ordered a plan for a class-action trial that will focus on whether cigarette makers conspired to keep smokers hooked.

The court rejected the industry's request to include testimony on the actions of individual smokers. The plaintiffs had argued that doing so would threaten the lawsuit's class-action status.

Instead of individual damages, the plaintiffs are seeking money from cigarette companies for medical monitoring of Louisiana smokers and for programs to help them quit.

The court said the trial's first phase would concentrate on issues including the alleged marketing of cigarettes to children, the alleged manipulation of nicotine levels, manufacturing a dangerous product and whether the industry engaged in fraud and conspiracy.

The court gave no indication of when the trial might start.

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Judge seeks new jurors in Louisiana smokers trial 

Civil District Court Judge Richard Ganucheau on Monday began trying to find nine new alternate jurors for the upcoming trial of a statewide smokers' class-action lawsuit against tobacco companies.

By late afternoon, three potential jurors were questioned, and all three were excused.

The nine alternate jurors will replace individuals the Louisiana Supreme Court and state 4th Circuit Court of Appeal said Ganucheau should not have allowed on the jury because they expressed interest in seeing their family members get free medical tests and stop-smoking help that the lawsuit seeks for all current and former Louisiana smokers.

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Tobacco Trial to Resume 

Preparations for the on-again, off-again trial of a statewide class-action lawsuit against the nation's biggest tobacco companies will begin again Monday, when attorneys and the judge in the Civil District Court case start picking replacements for nine alternate jurors, The (La.) Times-Picayune reported. The Louisiana Supreme Court this week cleared the way to rebuild the panel of alternate jurors but refused the companies' request that a whole new set of jurors and alternates be chosen to replace those seated this summer. The high court last month ordered Judge Richard Ganucheau to replace four jurors and five alternates after concluding they were biased, which is why nine new alternate jurors are needed now.

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• Tobacco Companies Lose Attempt to Disqualify Louisiana Jury  

U.S. tobacco companies lost a bid to start anew in picking a jury in New Orleans to decide whether the industry must pay to monitor the health of Louisiana smokers and help them quit.

The Louisiana Supreme Court rejected the companies' claim that a flawed process might leave them with a biased jury. In a one-page ruling, the high court denied the motion for a new hearing on the matter.

Philip Morris Cos., R.J. Reynolds Tobacco Holdings Inc. and other tobacco companies claimed trial Judge Richard Ganucheau forced them to use all their jurors challenges on people the judge should have disqualified himself. Nine of 12 jurors must agree on a verdict in the case. . .

Nine alternate jurors still remain to be selected, and that process is expected to take two weeks beginning Monday.

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• Alternate-juror selection to start for tobacco trial 

Preparations for the on-again, off-again trial of a statewide class-action lawsuit against the nation's biggest tobacco companies will begin again Monday morning, when attorneys and the judge in the Civil District Court case start picking replacements for nine alternate jurors.

The Louisiana Supreme Court this week cleared the way to rebuild the panel of alternate jurors but refused the companies' request that a whole new set of jurors and alternates be chosen to replace those seated this summer. The high court last month ordered Judge Richard Ganucheau to replace four jurors and five alternates after concluding they were biased, which is why nine new alternate jurors are needed now.

The process of choosing the alternates will begin Monday with questioning of 52 people who filled out surveys for possible jury service but were not called to court for interviews this summer. If a larger pool is needed to come up with nine alternates, 200 more prospective jurors will be summoned.

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• Tobacco Companies Ask to Throw Out Louisiana Jury (Update2)  

Philip Morris Cos. and other U.S. tobacco companies asked Louisiana's highest court to throw out the entire jury in a lawsuit by Louisiana smokers who want health checkups.

The Supreme Court of Louisiana last month threw out three jurors and four alternates who the tobacco companies claimed were biased. Another appellate court threw out two others, leaving 12 jurors and one alternate.

The tobacco companies now want to throw out those as well, claiming trial Judge Richard Ganucheau should have excused a number of jurors on his own. The tobacco companies said they had to use all their jury challenges on potential jurors the judge should have dismissed.

``Simply removing biased jurors is insufficient to remedy the harm caused by the district court's numerous errors,'' the companies said in Tuesday's filing. The errors ``made it impossible for defendants to develop and implement a coherent plan for selecting a jury,'' the companies said.

The companies asked state's top court to declare a mistrial and begin jury selection again.

``We believe it is a fundamental issue of unfairness,'' said Seth Moskowitz, a spokesman for R.J. Reynolds Tobacco Holdings Inc. ``The only way to fully remedy it is to start anew.''

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