Jump to full article: Wall Street Journal Blogs, 2008-04-04
Intro: Rule 23 is not a one-way ratchet, empowering a judge to conform the law to the proof. We therefore reverse the order of the district court and decertify the class. -- Judge John Walker, Second Circuit Court of Appeals on Thursday reversing Judge Jack Weinstein's grant of class certification for "light" cigarette litigants
If you detect a faint hint of unhappiness in those lines, we're with you.
Earlier today, the Second Circuit ruled that, "given the number of questions that would remain for individual adjudication" -- such as whether a given plaintiff smoked light cigarettes for their relative health benefits, or for some other reason, such as taste -- Rule 23's 'predominance' requirement was not satisfied in the so-called light cigarette litigation . . .
Wanting to get a sense of what it feels like to defeat 50 million plaintiffs, we called up Jones Day's Ted Grossman. Grossman represented RJR and Brown & Williamson in the case, and he also argued the appeal before the Second Circuit. Grossman, in Florida on the golf links with his wife, told the Law Blog that the decision "is the product of 30 years of give and take between the district court and the Second Circuit over the individual rights of defendants to not have the diverse claims of diverse people homogenized for reasons of efficiency."
When asked whether he expects to be back in court defending individual claims of light cigarette smoker, Grossman said no. "The whole theory of these cases is trumped up. . . .
people who don't allege that they're sick and don't allege that they wouldn't have smoked. They're just alleging that they bought the wrong cigarettes." . . .
Before his decision here overruling Judge Weinstein, Senior Judge Walker of the United States Court of Appeals for the Second Circuit made the news in 2006, after driving a car that struck New Haven Police Officer Daniel Picagli, working as a traffic crossing officer for a private company at a construction site marked with traffic cones.
When was the last time you heard of a driver striking and killing a police officer, even one working off duty, where the driver did not take a sobriety test? John Walker Jr., cousin of Bush 39 and 41, is the only example you will find on record in the recent past in Connecticut. Bush 39 appointed Walker to the Federal bench. . . .
Walker did not even get charged for driving at an excessive speed for the road conditions, a charge any normal driver would have been ticketed for after such an accident.
Now all the effort to protect Walker from criminal charges pays off for the cigarette companies. --
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