Cleary v. Philip Morris Inc.
2011 U.S. App. LEXIS 17758
| 7th Cir. | 2011Background
- Plaintiffs filed a putative Illinois class action against tobacco companies alleging ICFA and unjust enrichment, claiming concealment of cigarette risks and addictiveness.
- Original claims included addiction, youth marketing, and lights claims; lights claim later narrowed; class definitions evolved through amendments.
- Supreme Court of Illinois decisions and later federal developments influenced whether lights claims could proceed; Good v. Altria opened doors for a broader lights claim.
- Lorillard Tobacco Company removed the case to federal court under CAFA; district court denied remand after Lorillard was dismissed.
- After Lorillard’s dismissal, other lights defendants were dismissed; district court limited the lights claim to Marlboro Lights; 2010 Fourth Amended Complaint narrowed to addiction and Marlboro Lights unjust enrichment.
- District court granted dismissal with prejudice; on appeal plaintiffs challenge remand, expansion of lights, and the viability of unjust enrichment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Remand after dismissal of Lorillard | Lorillard’s dismissal tainted CAFA removal; case should be remanded to state court. | CAFA jurisdiction existed at removal and survived later changes; remand unnecessary. | No remand required; jurisdiction proper and retained. |
| Expand lights claim to other brands | Expansion relates back to original pleading and should include more brands. | Expansion would not relate back; would add new transactions not alleged originally. | Expanded claim not relate back; properly denied. |
| Viability of unjust enrichment claim | Unjust enrichment independently supports disgorgement based on consumer-rights violation. | Unjust enrichment requires detriment tied to defendant’s retention; lack of deception or harm defeats claim. | Unjust enrichment claim fails as pleaded; not viable. |
| Certification to Illinois Supreme Court | Unjust enrichment independence and detriment elements may warrant certification. | Certification unnecessary; state-law questions not vital to disposition. | Certification declined; no need to certify. |
Key Cases Cited
- HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145 (Ill. 1989) (unjust enrichment independent theory; elements include detriment and unjust retention)
- Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248 (Ill. 2004) (recognizes unjust enrichment as restitution in absence of tort/contract claim)
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006) (unjust enrichment premised on deception core to ICFA claim; not viable otherwise)
- Siegel v. Shell Oil Co., 612 F.3d 932 (7th Cir. 2010) (unjust enrichment tied to underlying improper conduct; no viability without it)
- Martis v. Grinnell Mut. Reinsurance Co., 388 Ill.App.3d 1017 (Ill. App. Ct. 2009) (unjust enrichment not standalone; tied to underlying fraud/illicit conduct)
- Phillips v. Ford Motor Co., 435 F.3d 785 (7th Cir. 2006) (relation back doctrine for amendments; same transaction or occurrence)
- In re Burlington Northern Santa Fe Ry. Co., 606 F.3d 379 (7th Cir. 2010) (CAFA jurisdiction determined at time of removal)
- Braud v. Transp. Serv. Co., 445 F.3d 801 (5th Cir. 2006) (notable discussion on jurisdiction and removal effects after dismissals)