Calif. SC overturns lower rulings, gives blessing to tobacco class action

John O'Brien May 19, 2009, 3:34pm


SACRAMENTO, Calif. (Legal Newsline) - The California Supreme Court, in a 4-3 vote Monday, has reinstated a class action lawsuit against tobacco companies accused of misleading advertising.

The suit alleges the tobacco industry has used an advertising campaign that has misrepresented the addictive and harmful properties of cigarettes and seeks reimbursement for every Californian who bought cigarettes from June 1993-April 2001.

The original complaint was filed in 1997 but amended nine times. The defendants contended 2004's Proposition 64 amended the unfair-competition law, under which the suit was filed, in such a manner that required a plaintiff to show that he or she has been harmed.

The trial court agreed and decertified the class.

"In granting the motion to decertify the class, and in concluding that the entire class was required to demonstrate standing, the trial court's order also stated, 'Further, it appears from the record that not even Plaintiffs' named representatives satisfy Prop 64's standing requirement,'" Justice Carlos Moreno wrote.

"The trial court did not elaborate on the basis for its conclusion and we cannot be certain what it meant. Moreover, even assuming that, in light of Proposition 64, the named representatives are no longer adequate representatives of the class because they lack standing, the proper procedure would not be to decertify the class but grant leave to amend to redefine the class or add a new class representative."

Agreeing with Moreno were justices Joyce Kennard, Kathryn Mickle Werdegar and Eileen Moore.

Dissenting were justices Marvin Baxter, Ming Chin and Carol Corrigan.

Baxter wrote that the previous court decisions (the trial court's and the Court of Appeals') were correct - that the element of causation created so many potential issues with individual proof that the class members shared no commonality.

Every plaintiff must be able to prove that he or she relied on the deceptive advertising when purchasing cigarettes, Baxter says Prop 64 requires.

He called the majority's analysis "not convincing."

"(Prop 64) was impelled by a belief that certain private litigants and their counsel had abused their authority as 'private attorneys general' to 'shake down' undeserving businesses," Baxter wrote in his dissent.

Defendants in the case are: American Tobacco Company, Philip Morris USA Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, British American Tobacco Co., Ltd., Liggett & Myers, Inc., Hill and Knowlton, Inc., the Council for Tobacco Research-U.S.A., Inc., the Tobacco Institute, Inc., United States Tobacco Company and Lorillard Tobacco Company.

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