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Cleary v. Philip Morris USA

February 22, 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 United States District Judge

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge

Brian Cleary and Rita Burke, representing three putative classes, 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 allege that defendants conspired to conceal facts about the addictive nature of nicotine (Count 1, Class A); targeted advertising and marketing to minors (Count 2, Class B); and deceptively marketed "low tar," "light," and "ultra light" cigarettes as being safer than regular cigarettes, although they were equally dangerous (Count 3, Class C). Plaintiffs have moved to certify the three putative classes. For the reasons stated below, the Court denies the motion, though the denial is without prejudice as to proposed Class A.

Background

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 three claims on behalf of three putative classes. 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 ask the Court to order the defendants to disgorge all revenue they received through the sale of cigarettes to plaintiffs and members of the three classes.

In Count 1, plaintiffs allege 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.

In Count 2, plaintiffs allege that defendants 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. 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.

In Count 3, plaintiffs allege that defendants marketed light cigarettes as safer than regular cigarettes, even though defendants knew them to be just as dangerous. 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." Id.

Discussion

A court may certify a class if it satisfies all four requirements of Federal Rule of Civil Procedure 23(a) -- numerosity, commonality, typicality, and adequacy of representation -- and any one of the requirements of Rule 23(b). Plaintiffs seek to maintain their class action under Rule 23(b)(3), which requires that common questions of law or fact predominate over questions affecting only individual members and that a class action is the best method for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).

The party seeking certification bears the burden of proving that all of the Rule 23 requirements are satisfied. Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984). That party must also demonstrate that the putative class is sufficiently defined that it is identifiable, and the named representative must be a member of the proposed class. Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).

On a motion for class certification, a district court need not necessarily accept the moving party's allegations as true. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). "Before deciding whether to allow a case to proceed as a class action, . . . a judge should make ...


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