Cleary v. Philip Morris USA

The plaintiffs represented three classes of individuals who brought suit against several tobacco companies for three separate claims of "unjust enrichment," which according the plaintiffs, allowed the named companies to benefit from the sale of tobacco products despite engaging in conduct that violated "justice, equity and good conscience." In particular, the plaintiffs claimed that (1) defendants engaged in a conspiracy to conceal information about the addictive nature of nicotine, (2) they unconscionably targeted minors for tobacco sales, and (3) they misled consumers by marketing "light" cigarettes as a safer alternative to regular cigarettes, despite their knowledge to the contrary. The plaintiffs sought to certify a class for each of these claims. In prior proceedings, the United States District Court for the Northern District of Illinois dismissed the claim related to conspiracy to conceal the addictive nature of nicotine and granted summary judgment in favor of defendants on the claim related to youth marketing.  The Court declined to certify plaintiff classes for either of these claims.  In analyzing only the motion to certify the third plaintiff class, the Court found that the representative plaintiff lacked "typicality" with the rest of the class, insofar as he failed to demonstrate how the alleged concealment of knowledge about the harms of "light" cigarettes harmed him in particular. The Court denied the motion accordingly.

Cleary, et al. v. Philip Morris USA, Inc., et al., 265 F.R.D. 289 (N.D. Ill. 2010).

  • United States
  • Feb 22, 2010
  • U.S. District Court for the Northern District of Illinois, Eastern Division

Parties

Plaintiff

  • Brian Cleary
  • Others similarly situated
  • Rita Burke

Defendant Philip Morris USA, Inc., et al

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Cleary fails to address in his briefs supporting class certification how he intends to show that he himself suffered a detriment as a result of Philip Morris’ conduct. He likewise does not address how, if at all, his claims are typical of those of class members in this regard. This will not do. As the Court noted earlier, “the [typicality] requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large.” Oshana, 472 F.3d at 514. By failing to address how he or any other class member will prove that they suffered a detriment due to Philip Morris’s alleged misconduct, Cleary has effectively forfeited the point. Even were this not the case, the Court would conclude that Cleary has failed to establish typicality. Class C is defined so broadly that it is likely to include persons who suffered no detriment at all due to Philip Morris’s conduct. Some class members may have purchased Marlboro Lights for reasons wholly unrelated to its purportedly less-unhealthy qualities – for example, because they preferred the flavor over other brands. And other class members may have purchased Marlboro Lights despite being completely unaware of claimed differences between the adverse effects of “light” cigarettes and other, non-“light” brands. It is not entirely clear where Cleary fits in along this spectrum. Though it is true, as Cleary points out, that factual differences among the claims of class members do not necessarily defeat typicality, see Rosario, 963 F.2d at 1018, the likelihood that some significant proportion of class members experienced no injury at all does, at least in a case like this one in which proof of detriment is a necessary element of the claim."