Philip Morris Dodges Class Claims in Oregon

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By Steven M. Sellers

Oct. 22 — A proposed class action for approximately 100,000 smokers of Marlboro Light cigarettes can't be certified because the plaintiffs' claims can't be proven through common evidence, the Oregon Supreme Court ruled Oct. 22.

The decision reverses a 2013 decision by the Oregon Court of Appeals, which held that some claims raised by the plaintiffs under the state’s unfair trade practices law could be proved through evidence common to the class (Pearson v. Philip Morris, Inc., 306 P.3d 665 (Or. Ct. App. 2013)).

“The Oregon Supreme Court has joined dozens of courts across the country in recognizing that these types of cases are not suitable for class certification,” a spokesman for Altria Group, the parent company of Philip Morris Co., told Bloomberg BNA Oct. 22 in an e-mail. “These cases simply present too many individual issues.” 

Counsel for the plaintiffs didn't respond to a request for comment sent Oct. 22.

The decision effectively reinstates a decision by the Oregon Circuit Court that the individual issues in the case so predominated over common ones that a class action wasn't the best way to adjudicate the plaintiffs' claims under Oregon's Unlawful Trade Practices Act (ORS 646.605 et seq.).

The court of appeals “stepped out of its institutional role by substituting its judgment for that of the trial court in terms of the weight to be given to the competing evidence that the parties presented,” the court said in remanding the case.

Misrepresentation of Light Cigarettes Alleged

Named plaintiffs Marilyn Pearson and Laura Grandin contend that Philip Morris, Inc., the manufacturer of Marlboro Lights, misrepresented the cigarettes as delivering less tar and nicotine than regular Marlboros, hitting buyers in both their wallets and their health.

They sought to certify the class action for people who bought at least one pack of Marlboro Lights in Oregon from 1971 to 2001.

The trial court declined to certify the class, ruling the issues had to be tried individually, but the court of appeals disagreed.

It held that some issues—such as ascertainable loss—could be resolved through common evidence, and remanded the case to the trial court in a split decision.

It asked the trial court to reevaluate the case and “revisit” its denial of class certification.

That decision was in error because the court of appeals substituted its own judgment that a jury could infer that a light cigarette would be more valuable than a “potentially light” one—even though there wasn't any evidence submitted by the plaintiffs proving that point, the court said.

Individual Issues, Common Evidence?

“The point of asking whether common issues predominate is to predict the degree to which litigation of the controversy will require delving into individualized proof or, conversely, the degree to which the issues lend themselves to resolution though common proof—that is, proof for one individual class member will be proof for all,” the court said.

Buyers of a particular brand of cigarettes may have disparate reasons for doing so, the court said, and the court of appeals misstepped when it “simply disagreed with the trial court on what factual conclusion to draw from the record,” the court said.

Judge Virginia L. Linder wrote the opinion, joined by Judges Thomas A. Balmer, Rives Kistler, Martha Lee Walters, David V. Brewer, Richard C. Baldwin and Joel DeVore, sitting by designation.

The law offices of Harrang Long Gary Rudnick represented Philip Morris, Inc.

Stoll Stoll Berne Lokting & Shlachter represented Marilyn Pearson and Laura Grandin.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/Marilyn_C_PEARSON_and_Laura_Grandin_individually_and_on_behalf_of .