Philip Morris Cos. Inc. v. Miner
2015 Ark. 73
| Ark. | 2015Background
- Plaintiffs (Miner and Easley) sued Philip Morris under the Arkansas Deceptive Trade Practices Act (ADTPA), alleging Marlboro Lights were advertised as healthier/containing less tar and nicotine though the representations were false or deceptive.
- Plaintiffs alleged design/engineering and labeling ("Light/Lowered tar and nicotine") and use of techniques to reduce machine-measured tar, producing deceptive impressions.
- Circuit court certified a class: all persons who purchased Marlboro Light/Ultra Light cigarettes in Arkansas for personal consumption from Nov. 1, 1971 through June 22, 2010 (with typical corporate/insider exclusions).
- Philip Morris appealed interlocutorily, challenging certification on predominance, superiority, and ascertainability grounds (did not challenge numerosity, commonality, typicality, adequacy).
- The trial court found common questions (e.g., whether advertising represented Lights as safer, whether Lights were safer, whether ADTPA was violated) predominated and that class litigation was superior and administratively feasible.
- The Arkansas Supreme Court affirmed certification; Justice Hart dissented, arguing lack of commonality, superiority, and ascertainability because the ADTPA requires "actual damages" determined by individualized proof (smoking behavior, reliance, injury).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance (Rule 23(b)) | Misrepresentation by Philip Morris is a common, overarching issue that can be resolved class-wide first. | Misrepresentation, causation, and damages turn on individualized smoking behavior (compensation), destroying predominance. | Affirmed: common questions predominate; individualized causation/damages can be handled later (bifurcation/decertification). |
| Misrepresentation element under ADTPA | Liability focuses on defendant’s representations and deceptive practices, not each purchaser’s tar intake. | Whether representations were false depends on each smoker’s compensation and behavior. | Held for plaintiffs: misrepresentation inquiry extends beyond individual intake and is suitable for class resolution. |
| Causation / Reliance | Overarching scheme to deceive can be resolved first; reliance need not be decided at certification. | Reliance (or individualized causation) is required and varies by purchaser, defeating predominance. | Court declined to decide whether reliance is an ADTPA element here; said reliance/causation are secondary and do not defeat certification. |
| Damages / Manageability | Damages for buying a product not as represented can be addressed after common issues; individualized damages do not defeat certification. | Damages depend on whether a purchaser would have quit or changed behavior (many individualized mini-trials), defeating superiority. | Held: individualized damage inquiries do not override predominance; bifurcation can address individual issues. |
| Ascertainability | Class defined by concrete objective criteria (purchased Lights in Arkansas during period) and membership can be proven by affidavit/testimony; no receipt requirement. | Class is overbroad and unascertainable; many members sustained no "actual damages" and cannot sue under ADTPA. | Held: class is ascertainable from the definition; circuit court need not make a separate ascertainability finding. |
Key Cases Cited
- Asbury Auto. Grp., Inc. v. Palasack, 366 Ark. 601 (Ark. 2006) (explains Rule 23 requirements and that class certification looks to whether Rule 23 is met, not merits)
- Ferguson v. Kroger Co., 343 Ark. 627 (Ark. 2001) (class must be reasonably definite and administratively feasible to determine membership)
- Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261 (Ark. 1997) (approves bifurcated approach: decide common issues first, individual issues later)
- Am. Abstract & Title Co. v. Rice, 358 Ark. 1 (Ark. 2004) (certification inquiry is procedural; court should not resolve merits at certification)
- Simpson Hous. Solutions, LLC v. Hernandez, 2009 Ark. 480 (Ark. 2009) (individual defenses and damages generally do not defeat certification when common wrongdoing exists)
- McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008) (example of court finding individualized out-of-pocket loss issues but discussing damage permutations among smokers)