Yesterday, the New Hampshire Supreme Court reversed the certification of a class of purchasers of “Light” cigarettes in a case alleging that Philip Morris USA, Inc. (Philip Morris), by using the name “Lights” and describing the cigarettes as “Lowered Tar & Nicotine,” violated the New Hampshire Consumer Protection Act. Download Lawrence v Philip Morris USA Inc Aug 21 2012 As in similar cases filed in other jurisdictions, plaintiff alleged that these descriptions falsely represented that Lights would deliver less tar and nicotine than other cigarettes. The plaintiff alleged that the filters of Lights had ventilation holes that diluted the tar and nicotine delivered per puff as measured by smoking machines, and claimed that Philip Morris specifically designed Lights to “pass” the machine tests while delivering to human smokers the same amount of tar and nicotine delivered by regular Marlboro cigarettes. Thus, she contended, the product as purchased was worth less than the product as advertised.
The trial court certified a class of consumers who purchased Marlboro Lights in New Hampshire from January 1, 1995, to the date of trial. Philip Morris challenged that decision by interlocutory appeal to the state’s highest court, arguing that common issues of law or fact did not predominate over questions affecting only individual class members. (Superior Court Rule 27-A, New Hampshire’s procedural rule governing class actions includes a predominance requirement. Super. Ct. R. 27-A(a)(2).)
Applying the standard the court adopted in a 2007 decision, that the determination of class certification requirements entails a “rigorous analysis” that “must go beyond the facts alleged in the pleadings,” the high court found that individual issues regarding injury predominated because not all class members were injured by Philip Morris’ representations about Lights, and determining which class members were, in fact, injured would require individual proof. Writing for the court, Chief Justice Linda Dalianis reasoned that “hundreds of publications and television news reports between 1976 and 1995 informed consumers that light cigarettes were no less harmful than regular cigarettes,” including publications by the American Cancer Society and other similar organizations, which specifically warned consumers about the dangers of “light” cigarettes.
The court concluded that, given the volume of information available to consumers prior to the class period, the number of class members exposed to this information was not de minimis and, therefore, “determining the information about Lights to which individual class members were exposed and what they believed are individual issues that will predominate over common ones.”
In the course of its ruling, the court acknowledged the decisions of two other state appellate courts that had ruled in favor of class certification in similar “Light” cigarette cases, including the 2004 decision of the Massachusetts Supreme Judicial Court in Aspinall v. Philip Morris Companies, Inc. It distinguished Aspinall on the grounds that the Massachusetts Consumer Protection Act’s class certification provision did not require predominance.
Thanks to Mark Rosen of our Portsmouth, New Hampshire office for contributing this post.
Written by former litigation partner, Donald R. Frederico.