Wednesday, April 9, 2008
In this week's Writ column, Tony Sebok discusses the Second Circuit's recent decision in McLaughlin v. American Tobacco, which reversed Judge Weinstein's certification of the "light cigarettes" class action. The plaintiff class were individuals who had smoked "light" cigarettes. Plaintiffs alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes. Thus, plaintiffs brought (essentially) a consumer fraud claim against the tobacco companies because "the seller promised one thing (a safer cigarette) and intentionally delivered something else (a cigarette that was not, in fact, safer)." Judge Weinstein originally had certified the class action back in 2006. Unsurprisingly, the Second Circuit has now reversed.
In his column, Sebok analyzes the Second Circuit's decision, and offers his predictions as to the decision's effect on consumer fraud class actions generally. I previously have written on the issue of reliance in consumer fraud class actions: The Consumer Fraud Class Action: Reining in Abuse by Requiring Plaintiffs to Allege Reliance As An Essential Element, 43 HARV. J. LEGIS. 1 (2006). In this article, I argue that requiring reliance for the resolution of private suits creates the correct balance of individual justice and deterrence.