Arkansas SC says class action against Philip Morris over ‘light’ cigarettes can proceed

LITTLE ROCK, Ark. (Legal Newsline) – The Arkansas Supreme Court has upheld a state court’s order certifying a class action against cigarette maker Philip Morris USA.

The state’s high court issued its 17-page order affirming the Pulaski County Circuit Court’s decision Feb. 26.

 

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The circuit court certified the plaintiffs’ class action against Philip Morris based on the Arkansas Deceptive Trade Practices Act. Philip Morris appealed the class certification.

 

The class plaintiffs allege Philip Morris deceived them by advertising Marlboro Lights as being safer and having less tar and nicotine than other cigarettes.

 

Philip Morris, in its appeal to the high court, argued that each element of the plaintiffs’ ADTPA claim — misrepresentation, causation and damages — contains “overriding” individual issues that destroy predominance.

 

First, the cigarette maker argued misrepresentation is an “inherently” individual issue because whether its representations on its Marlboro Lights cigarettes were false depends on each class member’s smoking habit.

 

Second, it argued proof of causation requires proof of reliance, and since each buyer bought Lights for different reasons, these individual reasons destroy predominance.

 

Lastly, Philip Morris argued each individual’s damage claim depends on his or her smoking habits, which also destroys predominance.

 

“We conclude that proof of misrepresentation does not turn on each class member’s smoking habit because the key inquiry under the ADTPA focuses on the defendant’s actions,” Associate Justice Rhonda K. Wood wrote for the court. “We further conclude that any individual issues regarding causation and damages can be addressed, if necessary, using the bifurcated approach.

 

“And we agree that the circuit court did not abuse its discretion when it reached the same conclusion: ‘The other issues raised by [Philip Morris] in an attempt to negate predominance are downstream of the common, predominate threshold allegation of the plaintiffs: that Marlboro Lights, as designed, manufactured, advertised and sold, were misrepresented.’”

 

Simply put, the class action is a “superior” method to adjudicate at least some parts of the plaintiffs’ cause of action, the court said in its 6-1 decision. Associate Justice Josephine L. Hart dissented.

 

Hart contends the majority is wrong to approve a class that cannot “reasonably be ascertained” and is so broad as to include “perhaps thousands” of members who have sustained no actual damages.

 

“Even the appellees’ experts conceded that 90 percent of smokers did not fully compensate and not every purchaser bought ‘Lights’ because he or she believed it was a ‘healthier’ cigarette,” she wrote. “These facts are fundamental to the case.”

 

Hart said she is “mindful” that the action is directed against the maker of a “highly unpopular” consumer good.

 

“However, this case will stand as precedent for all consumer goods,” she wrote. “‘Light’ is the term that has been demonized today because it is associated with cigarettes.

 

“Should we countenance equally low standards for class certification when it comes to foods that are labeled ‘diet,’ ‘all natural,’ ‘low-fat,’ or — dare I say — ‘light?’”

 

The class action — of which the exact size is unknown — seeks refunds on every pack of Marlboro Lights sold in the state from 1971 to 2010.

 

From Legal Newsline: Reach Jessica Karmasek by email at [email protected].

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