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Cleary v. Philip Morris USA

June 22, 2010

BRIAN CLEARY AND INES TAYLOR, 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

The plaintiffs in this case, 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. The Court granted defendant's motion for summary judgment on several claims contained in the third amended complaint on February 1, 2010. On April 18, 2010, plaintiffs moved for leave to file a fourth amended complaint, a motion the Court granted on April 22, 2010. Defendants have moved to dismiss the fourth amended complaint, and for the reasons stated below, the Court grants the motion.

Background

Brian Cleary and Rita Burke filed this case in state court on behalf of several putative classes in 1998. They filed a third amended complaint on March 3, 2009, at which point defendant Lorillard Tobacco Co. removed it to this Court.

In their third amended complaint, plaintiffs asserted three claims on behalf of three putative classes. In all three claims, plaintiffs sought recovery on a theory of unjust enrichment. The first claim was a claim that defendants conspired to conceal facts about the addictive nature of nicotine (the "addiction" claim). The second claim was a claim that defendants improperly targeted their advertising and marketing to minors (the "youth marketing" claim). The third claim was a claim that defendants deceptively marketed their "low tar," "light," and "ultra light" cigarettes as being safer than regular cigarettes, knowing that proposition to be false (the "light cigarettes" claim). On the latter claim, the Court granted judgment on the pleadings in favor of defendants on all brands other than Marlboro Lights, which is produced by Philip Morris. The claim as it related to Marlboro Lights survived that ruling. See Cleary v. Philip Morris USA, Inc., 683 F. Supp. 2d 730 (N.D. Ill. 2010).

Defendants then moved for summary judgment on the youth marketing claim on the ground that the claim was time-barred. The Court concluded that Burke's and Cleary's youth marketing claims were barred by the statute of limitations and granted summary judgment for defendants on that claim. See Cleary v. Philip Morris USA, Inc., No. 09 C 1596, 2010 WL 431670 (N.D. Ill. Feb. 1, 2010).

Defendants also moved for summary judgment against plaintiff Burke on all claims, arguing that she had failed to allege that she was injured as a result of the defendants' actions. The Court granted the motion as to the claims remaining against Burke. See id. Because Burke was the only plaintiff named in the addiction claim, the Court dismissed that claim and gave plaintiffs leave to refile it if they could identify an appropriate plaintiff. See id. Defendants did not move for summary judgment as to Cleary's Marlboro Lights claim, so that claim remained.

On April 18, 2010, plaintiffs moved for leave to file a fourth amended complaint, a motion the Court granted. The fourth amended complaint contains refashioned versions of the plaintiffs' addiction and Marlboro Lights claims.

In count 1 of the fourth amended complaint, plaintiffs reassert the addiction claim that they included in the third amended complaint. On that claim, plaintiffs have identified a new named plaintiff, Ines Taylor, who brings the claim on behalf of a putative class ("class A") identified as including "[a]ll Illinois residents who, between December 14, 1953 (the date the conspiracy began) and July 27, 1965 (the effective date of the federal labeling act) purchased and/or consumed in Illinois tobacco products manufactured by the [defendants]." Fourth Amended Complaint ("FAC") ¶ 202. This class definition is identical to the one that plaintiffs offered in the third amended complaint.

In count 1, plaintiffs allege that Taylor, who was a smoker during the relevant period and continues to smoke today, was "subjected to Defendants' knowing and intentional concealment regarding the addictive nature of nicotine" and that "[defendants have reaped billions of dollars in revenue generated as a result of the sale of their tobacco products in the manner described above." Id. ¶¶ 212 & 214. Plaintiffs contend that they "had a legal right to know the true nature and hazards of defendants' tobacco products, including the addictive and dangerous nature of these products." Id. ¶ 218. They say that "[d]efendants . . . had an affirmative duty under Illinois law to disclose to the plaintiffs, and every member of Class A, the full truth about the nature and effect of their products," and they contend defendants breached that duty by intentionally exposing plaintiffs to adverse health affects without full information about the risks. Id. ¶¶ 215 & 219. As a result, plaintiffs contend, defendants were unjustly enriched. Id. ¶ 226.

In count 2 of the fourth amended complaint, plaintiffs reassert their light cigarettes claim. The claim is almost identical to the light cigarettes claim in the third amended complaint, though it is now limited to Marlboro Lights and Philip Morris, due to the Court's earlier ruling. Count 2 is based on a proposition similar to that underlying count 1: plaintiffs assert that defendants had an affirmative duty to disclose the true nature of light cigarettes, which they breached to plaintiffs' detriment, resulting in unjust enrichment to Philip Morris.

Defendants have moved to dismiss the fourth amended complaint. They argue that it fails to allege that plaintiffs suffered harm as a result of defendants' actions and that as a result plaintiffs have failed to state a valid claim of unjust enrichment. They contend that the Court has already determined, in its ruling on the third amended complaint, that allegations substantially the same as those in the fourth amended complaint are insufficient, and that there is no reason to change that analysis. Plaintiffs argue that the fourth amended complaint adequately alleges that defendants acted to plaintiffs' detriment and that the Court's prior decisions do not preclude the claims in the fourth amended complaint.

Discussion

When considering a motion to dismiss a complaint, the Court accepts the facts alleged in the complaint as true and draws reasonable inferences in favor of the plaintiff. Newell Operating Co. v. Int'l Union of United Auto., Aerospace, and Agr. Implement Workers of Am., 532 F.3d 583, 587 (7th Cir. 2008). Though Federal Rule of Civil Procedure 8(a)(2) does not require a complaint to include detailed factual allegations, a plaintiff's statement of the claim must be sufficient to "give the defendant fair notice of what the . . . claim is and ...


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