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Cleary v. Philip Morris USA

February 1, 2010

BRIAN CLEARY AND RITA BURKE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PHILIP MORRIS USA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Brian Cleary and Rita Burke, representing a putative class, have sued several tobacco companies and tobacco-related entities. They filed the case in state court in 1998. Defendant Lorillard Tobacco Co. removed it to this Court after plaintiffs filed a third amended complaint on March 3, 2009.

In their third amended complaint, plaintiffs made several claims against the defendants on behalf of three putative classes of Illinois residents. Plaintiffs alleged that defendants conspired to conceal facts about the addictive nature of nicotine, targeted advertising and marketing to minors, and deceptively marketed "low tar," "light," and "ultra light" cigarettes as being safer than regular cigarettes, although they were equally dangerous.

Defendants have filed three motions for summary judgment. In the first, all defendants except British American Tobacco Co. move for summary judgment as to plaintiff Rita Burke on all counts. In the second, defendants Philip Morris, R.J. Reynolds, Liggett & Myers, Lorillard, and U.S. Smokeless Tobacco Co. (formerly United States Tobacco Company) move for summary judgment with regard to all plaintiffs on the youth marketing claim (Count 2). In the third, defendant British American Tobacco Co. moves for summary judgment with respect to Count 1 (the only count in which it is a named defendant).

Background

A court may rule on summary judgment as to individual plaintiffs without first ruling on a plaintiff's motion to certify a class. Wiesmueller v. Kosobucki, 513 F.3d 784, 787 (7th Cir. 2008). If a court dismisses a named plaintiff's claim, "it will ordinarily disqualify the named plaintiff as a proper class representative, with the effect of mooting the question of whether to certify the class unless the lawyers for the class find another representative." Id.

On a motion for summary judgment, the Court draws "all reasonable inferences from undisputed facts in favor of the nonmoving party and [views] the disputed evidence in the light most favorable to the nonmoving party." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2009). The Court takes the following facts from the plaintiff's complaint and from the parties' statements of facts as to which there is no material dispute.

Plaintiffs filed this litigation in state court in 1998. Lorillard removed it to federal court after plaintiffs filed a third amended complaint (TAC) on March 3, 2009. In the third amended complaint, plaintiffs assert claims on behalf of three putative plaintiff classes. Count 1 alleges that defendants engaged in a decades-long conspiracy to conceal facts about the addictive nature of nicotine. For this claim, plaintiffs have identified a putative class (Class A), consisting of "all Illinois residents who, between December 14, 1953 (the date the conspiracy began) and July 27, 1965 (the effective day of the federal labeling act) purchased and consumed in Illinois tobacco products manufactured by the Tobacco Companies." TAC ¶ 332.

Count 2 alleges that defendants have targeted and continue to target their cigarette marketing and advertising toward minors, luring young people into becoming smokers before they are mature enough to make an informed decision, in violation of Illinois law. The putative class for Count 2 (Class B) consists of "all Illinois residents who, as minors, purchased in Illinois cigarettes designed, manufactured, promoted, or sold by Defendants." Id.

Count 3 alleges that defendants marketed light cigarettes as safer than regular cigarettes, even though defendants knew them to be just as dangerous. The Court has previously granted judgment on the pleadings in defendants' favor on Count 3 with regard to all brands except Philip Morris' Marlboro Lights brand. For Count 3, plaintiffs have identified a putative class (Class C) consisting of persons who purchased and consumed Marlboro Lights in Illinois "from the time such cigarettes were placed into the stream of commerce until the date that the defendant publicly and adequately disclosed to consumers the true nature and effect of these cigarettes." TAC ¶ 332.

In all three claims, plaintiffs seek recovery under a theory of unjust enrichment. Plaintiffs allege that defendants earned money from the sale of tobacco products while engaging in the wrongful behaviors alleged in each count and that it would violate the principles of justice, equity, and good conscience to allow them to keep these earnings. They request that the Court order defendants to disgorge all revenue received through the sale of cigarettes to plaintiffs and members of Classes A, B, and C.

Defendants have moved for summary judgment as to named plaintiff Rita Burke on all counts, arguing that she has failed to allege that she was injured as a result of the defendants' actions and thus cannot maintain any of her claims. Philip Morris, R.J. Reynolds, Liggett & Myers, Lorillard, and U.S. Smokeless have moved for summary judgment on plaintiffs' youth marketing claims (Count 2), arguing that they are time-barred. British American Tobacco Co. (BATCo) has a moved for summary judgment on Count 1 (the only count in which it is named) on the ground that Burke never purchased a BATCo product.

Plaintiffs argue that they need not prove individual injury or causation on any count, because they do not seek individual damages. They state that they seek only restitution on behalf of various classes of Illinois residents that purchased defendants' cigarettes during the periods when defendants were engaged in wrongful behavior. Thus, they contend, their allegations hinge entirely on the allegedly wrongful behavior of the defendants, not on any effect of that behavior on individual plaintiffs. Pls.' Mem. in Opp. to Summ. Judg. at 22-24.

With regard to Count 2, plaintiffs argue that Burke smoked cigarettes as a minor as a result of defendants' improper youth marketing. Thus, they contend, even though she need not prove injury or causation, she has done so. Further, plaintiffs argue that their claims are not time-barred because defendants' acts of deception constitute ...


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