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Jump to full article: Tobacco Control Resource Center, 2004-08-13
Intro: The essential question presented by this appeal is whether the marketing of Marlboro Lights as "light" cigarettes that deliver "lowered tar and nicotine" may be challenged in a class action seeking damages, as deceptive conduct in a trade or . . .
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. . . .
CORDY, J. (dissenting, with whom Ireland and Cowin, JJ., join).
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.'
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