The tobacco industry won a major appeal today when the Second Circuit threw out an $800 billion class-action lawsuit based on allegedly misleading light cigarettes ads. While light or low-tar cigarettes have proven the most promising area of litigation for plaintiffs, there is a strong trend against massive class actions.
The class action sought to represent millions of smokers of light cigarettes across country. Notably, the problem was not the underlying claim but the lack of commonality in the class since it was impossible to know if individuals like the taste or the ads. In 2005, the Illinois Supreme Court threw out a $10 billion case. For that opinion, click here.
The unanimous panel ruling reversed a decision of trial judge Jack B. Weinstein — considered one of the most influential jurists in creating mass tort law. Weinstein helped establish the field with mass tort cases addressing Agent Orange, asbestos, tobacco, Zyprexa and handguns. A study recently by the New York Sun indicated that plaintiffs strove to be assigned to Weinstein due to a pro-Plaintiff reputation.
The ruling comes as industry waits for a ruling from the Supreme Court on whether claims involving light cigarettes are preempted by the fact that the Federal Trade Commission allowed the marketing of the product as light. The Maine case is Philip Morris v. Good, et al. (07-562). Click here and here.
There have been a series of defeats against Plaintiffs in massive tobacco cases, click here. I have always been skeptical of the ability to maintain these cases and critical of the federal lawsuit, click here and here.
The New York lawsuit had more promise because they were based on fraud rather than the classic hazardous claims (which run into problems with assumption of the risk and proximate causation issues).