Clay v. Philip Morris Inc.
(Class Action US Dist. Ct. S. IL 1999 Decertified) Citation: 188 F.R.D. 483 (9 July 1999)This class action suit was brought by representative plaintiffs Jean Clay, Sheba Chears, Jodi Boffeli, Richard Monterosso, Doreen Olsen and Philip Emily against the American Tobacco Co., R.J. Reynolds, Brown & Williamson, Philip Morris, Lorillard, and the Tobacco Institute, on May 22, 1997.
The class included "all persons in the United States who, as children, purchased and smoked cigarettes designed, manufactured, promoted, or sold by the defendants (Excluded from the class are residents of Louisiana, Maryland, New York, and Utah)." The plaintiffs alleged that they purchased and smoked cigarettes as children because the defendants targeted youth in advertising and promotion of the illegal sale of cigarettes. The plaintiffs claimed strict liability, conspiracy, unjust enrichment, violations of state consumer protection statutes, and product liability under the Restatement (Second) of Torts. The plaintiffs sought disgorgement of the defendants' profits from illegal cigarette sales to minors, as well as punitive damages. The disgorgement funds were to be used for collective purposes, such as cessation programs.
The case was heard in the United States District Court for the Southern District of Illinois, Benton Division (Civil Action No. 97-4167-JPG) before the Honorable Chief Judge Gilbert. On July 9, 1999, the judge (188 F.R.D. 483) denied class certification. The judge held the multitude of new youth who begin smoking every day makes defining the class unmanageable. The judge ruled that the plaintiffs did not satisfy typicality, because all class members were not subject to the same advertising. Nor did the plaintiffs satisfy the adequacy of representation requirement, since their claim for relief in the form of cessation programs would be of no use to former smokers in the class, and judgment would likely preclude any personal injury suits by unnamed plaintiffs. The role of advertising in the decision to smoke would have differed greatly from person to person. A climate of acceptability of cigarettes was not sufficient to prove causation. The primary relief sought was money damages, so the class could not be certified under Rule 23(b)(2), the injunctive relief section of the statute. The case was also unmanageable for several reasons. Applicable state criminal and common laws differed significantly and would have to be applied separately. Individual proof issues predominated over common issues making class certification inappropriate. The conspiracy claim would have had to be considered individually as to the advertisements received by each plaintiff. The unjust enrichment claim required individual considerations of cigarettes purchased. The Restatement also required an individual showing of proximate cause, which could not be shown without proof of physical harm. The consumer protection statutes required showings of individualized harm, and that advertising reached the individual plaintiffs as well.