Thursday, April 3, 2008

Second Circuit Dismisses Light Cigarette Class Action

The Second Circuit dismissed an $800 billion light cigarettes class action against tobacco companies today. Although Judge Weinstein approved the class in September of 2006, the Second Circuit held found that individual issues, such as why smokers chose light cigarettes, predominated over common ones. Here’s an excerpt of the New York Times story:

Plaintiffs’ lawyers had wanted to represent potentially millions of people across the country who had smoked light cigarettes, but the court found that it was impossible to tell why smokers chose light cigarettes, so the group could not be treated as a class. Instead, smokers would have to sue individually.

"Individualized proof is needed to overcome the possibility that a member of the purported class purchased lights for some other reason than the belief that lights were a healthier alternative," the ruling said.

The ruling by a three-judge panel of the United States Court of Appeals for the Second Circuit means that individuals can still pursue lawsuits against cigarette makers, but they cannot be grouped together as a class.

Although not entirely unexpected, the ruling was a setback for lawyers who thought that the ruling approving the class, issued by Federal District Judge B. Weinstein in Brooklyn in September 2006, could have opened a new avenue for litigation against the tobacco industry, exposing cigarette companies to potentially large damages.

Judge Weinstein’s ruling in the case, known as Schwab for one of its plaintiffs, Barbara Schwab, had been viewed as significant. That was partly because it was the first so-called lights case certified as a class in federal court and partly because such lawsuits on behalf of smokers of light cigarettes have generally not been successful.

Unlike most tobacco lawsuits, the Schwab case did not contend that smokers were injured but instead that they had been subjected to a fraud since 1971, when Philip Morris began selling Marlboro Lights, the first light cigarette.

On a related note, the House of Representatives approved a bill today that would give the Food and Drug Admistration the authority to regulate tobacco.

ECB

http://lawprofessors.typepad.com/mass_tort_litigation/2008/04/second-circuit.html

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