Cleary v. Philip Morris USA

A class of Illinois residents sued several tobacco companies under Illinois' Consumer Fraud Act, alleging in the original complaint and in a third amended complaint that Philip Morris deceptively and falsely marketed Marlboro Lights as presenting fewer health risks than other cigarettes.  In the time period between the original and third amended complaints, plaintiffs had moved for dismissal of the lights allegations, maintaining that the matter was addressed by a separate class action before another court.  Although the separate class action subsequently was dismissed as preempted by federal law, the U.S. Supreme Court later invalidated the grounds for dismissal.  Upon motion by the defendants to dismiss the lights allegations in the third amended complaint, the Court vacated the prior dismissal and reinstated the original claim regarding Marlboro Lights, finding that the claim was not precluded by the separate class action because the intervening U.S. Supreme Court decision materially altered the situation.

Cleary, et al. v. Philip Morris USA, Inc., et al., 683 F. Supp. 2d 730 (N.D. Ill. 2010).

  • United States
  • Jan 13, 2010
  • U.S. District Court for the Northern District of Illinois, Eastern Division

Parties

Plaintiff

  • Brian Cleary
  • Others similarly situated
  • Rita Burke

Defendant

  • Others
  • Philip Morris USA, Inc.

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The decision in Altria, together with the other circumstances the Court has described, persuades the Court that this case presents a materially altered situation such that the plaintiffs’ unjust enrichment claim is not barred by Illinois claim preclusion law. The other circumstances include the fact that the unjust enrichment claim was not adjudicated on the merits, combined with the fact that the Price class representatives dismissed it without notice to the class, in a way that calls the adequacy of their representation into question. The Court concludes, based on these same considerations, that there are changed circumstances that render unjust the state court’s 2002 interlocutory order dismissing the plaintiffs’ unjust enrichment claim concerning Marlboro Lights claim. The Court therefore vacates that order and reinstates the claim."
"The plaintiffs in Altria were Maine residents who smoked Marlboro Lights and Cambridge Lights. They alleged that Philip Morris (and its parent company Altria Group) deliberately deceived consumers about “the true and harmful nature of ‘light’ cigarettes” in violation of a Maine statute that, like the ICFA, prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Altria, 129 S. Ct. at 541. Altria argued that the plaintiffs’ claims were impliedly preempted by FTC policy. It argued that the FTC had “required tobacco companies to disclose tar and nicotine yields in cigarette advertising using a government-mandated testing methodology and [had] authorized them to use descriptors as shorthand references to those numerical test results.” Id. at 550 (emphasis in original). The Supreme Court squarely rejected this argument, finding that “the FTC has in fact never required that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned representation of those yields through the use of “light” or “low tar” descriptors.” Id. And the Court specifically addressed and rejected the argument about the FTC’s American Brands consent order that the Illinois Supreme Court had accepted in Price. The Court stated that the consent order authorized nothing; it “only enjoined conduct,” and in any event it was binding only on the parties to the consent order. Id. at 550 n. 13. In short, the Supreme Court’s decision in Altria 2reads the FTC’s actions in a way that directly contradicts the interpretation on which the Illinois Supreme Court relied in Price to conclude that the agency had approved the use of “light” or similar terms."