ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
The Plaintiffs have brought a class action on behalf of purchasers of light
I. STATEMENT OF FACTS
On March 29, 2010, the Plaintiffs moved for class certification in California, Illinois, Maine, and the District of Columbia. Pis.’ Mot. to Certify Class (Docket # 186) (Pis. ’ Mot). On May 3, 2010, the Defendants responded. Defs’. Resp. in Opp’n to Mot. to Certify Class (Docket # 204) (Defs. ’ Resp.). On June 17, 2010, the Plaintiffs replied to the Defendants’ response. Pis.’ Reply to Resp. in Opp’n to Mot. to Certify Class (Docket #222) (Pis.’ Reply). The Court held oral argument on July 21, 2010. On August 20, 2010, Plaintiffs filed a proffer of evidence to be presented at trial. Pis. ’ Proffer of Evidence to be Presented at Trial (Docket #234) (Pis.’ Proffer). On September 20, 2010, Defendants responded. Defs.’ Resp. to Pis. ’ Proffer of Evidence to be Presented at Trial. (Docket # 238) (Defs. ’ Resp. Proffer ).
A. The Classes
1. California
Miles Tyrer, a California resident, sues the Defendants individually and on behalf of other California purchasers of light cigarettes manufactured by the Defendants. Tyrer’s Second Am. Compl. (Docket # 132). The proposed class consists of
[a]ll persons residing in the State of California who purchased for personal use and not for resale Defendants’ cigarettes that are labeled “Light” and/or “Ultra Light” and/or purport to have lower tar and nicotine than conventional, full flavor cigarettes (“Light Cigarettes”), during the Class Period, through the present.
Id. ¶ 102. The class period for the UCL claim runs from January 13, 2005 to January 13, 2009, and the class period for the CLRA claim runs from January 13, 2006 to January 13,2009. Pis.’Mot. at In. A.
Mr. Tyrer alleges that the Defendants misrepresented the health risks of light cigarettes in violation of California’s Unfair Competition Law (UCL), Bus. & Prof.Code, § 17200, et seq.;
The UCL prohibits unfair competition, which means “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [§ 17500].” UCL § 17200. Section 17500 prohibits businesses from making false or misleading statements, defined as any statement “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” UCL § 17500.
The CLRA allows private lawsuits by “[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act or practice declared to be unlawful by [the CLRA, pursuant to] section 1770.” CLRA § 1780(a). Section 1770 defines various unlawful misrepresentations, including “Representing that goods ... have ... characteristics, ingredients, uses, benefits, or quantities which they do not have” and “Representing that goods ... are of a particular standard, quality, or grade ... if they are of another.” CLRA § 1770(a)(5), (7).
2. The District of Columbia Class
Aubrey Parsons and Alex Slater, the named Plaintiffs, are District of Columbia residents. Parsons’ Am. Class Action Compl. ¶ 4, Parsons v. Phillip Morris USA, Inc., 10-ev-00074 (D.Me. Dec. 9, 2009) Attach. 2 (Docket # 1) (Parsons’ Compl.); Slater’s Am. Class Action Compl. ¶ 4, Slater v. Phillip Morris USA, Inc., 09-cv-00639 (D.Me. Dec. 22, 2009), Attach. 2 (Docket # 1) (.Slater’s Compl.). The proposed class is composed of
[a]ll District of Columbia residents who from January 1, 2000, to the present, purchased, not for resale, Philip Morris USA Inc.’s and Altria Group Inc.’s cigarettes labeled as “Light,” or “Ultra-Light”. The Class excludes all federal, state, and local governmental entities, and Philip Morris USA Inc.’s and Altria Group Inc.’s directors, officers, parent corporations, subsidiaries, and affiliates.
Parsons’ Compl. ¶ 8; Slater’s Compl. ¶ 8.
They contend that the Defendants have been unjustly enriched and that they misrepresented the health benefits of light cigarettes in violation of the District of Columbia Consumer Protection and Procedures Act (CPPA), § 28-3901, et seq. Parsons’ Compl. ¶¶ 40, 50; Slater’s Compl. ¶¶ 40, 50. The CPPA makes it illegal for businesses to “represent that goods ... have ... characteristics, ingredients, uses, benefits” if they do not; are of a “particular standard quality grade, style, or model” if they are not; “misrepresent as to a material fact which has a tendency to mislead”; and “fail to state a material fact if such failure tends to mislead.” CPPA § 28-3904(a), (d)-(f). The statute is violated “whether or not any consumer is in fact misled, deceived or damaged thereby.” Id. § 28-3904.
Under District of Columbia law, a claim of unjust enrichment has three elements: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the defendant’s retention of the benefit is unjust. See 1934 Inc. v. District of Columbia Dept. of Employment Services,
3. The Illinois Class
Leonardo Biundo, an Illinois resident, sues the Defendants for misrepresenting light cigarettes as healthier than regular cigarettes. Biundo’s Second Am. Compl. ¶¶ 1, 4 (Docket #79). The proposed class is composed of
All Illinois residents who, from January 1, 2005, to the date of class certification, purchased, not for resale, Defendants’ cigarettes labeled as “Light,” or “UltraLight”. The Class excludes all federal, state, and local governmental entities, and Philip Morris USA, Inc.’s, and Altria Group, Inc.’s, directors, officers, parent corporations, subsidiaries, and affiliates.
Id. ¶ 7.
Mr. Biundo alleges that the marketing practices violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS § 505 and unjustly en-
In Illinois, a claim of unjust enrichment has two elements: “a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiffs detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care Services, Inc. v. Mt. Vernon Hosp.,
4. The Maine Class
Maine residents Stephanie Good, Lori A. Spellman, and Allain L. Thibodeau sue the Defendants individually and on behalf of other Maine purchasers of light cigarettes manufactured by the Defendants. Maine Plaintiffs’ Second Am. Compl. ¶¶ 1, 7-9 (Docket # 91). The proposed class consists of
[a]ll persons residing in the State of Maine who purchased for personal use Defendants’ cigarettes labeled as “Light,” or “Ultra-Light” (“Light Cigarettes”), during the Class Period, through the present.
Id. ¶ 39. The Class period is from August 12,1999 to August 12, 2005. Id. ¶ 40.
The named Plaintiffs move for class certification solely on their allegation that the Defendants were unjustly enriched. Id. ¶¶ 50-62.
[One] a benefit conferred upon the defendant by the plaintiff; [two] an appreciation or knowledge by the defendant of the benefit; and [three] the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.
Aladdin Elec. Assoc. v. Town of Old Orchard Beach,
II. DISCUSSION
A. The Parties’ Positions
1. The Plaintiffs
The Plaintiffs argue that class certification is appropriate because the critical liability elements — the Defendants’ knowledge, misrepresentations, and magnitude of profit — ■ are common to all Plaintiffs. Pis.’ Mot. at 15. The Plaintiffs begin by outlining how the proposed classes satisfy the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy. The Plaintiffs argue that numerosity is met because each class “include[s] thousands of members,” making joinder impractical. Id. at 16 (citing Garcia-Rubiera v. Calderon,
Turning to the predominance of common issues and the superiority of class treatment under Rule 23(b)(3), the Plaintiffs begin by placing their proposed classes in context. The Plaintiffs argue that because the “purpose of Rule 23(b)(3) is to vindicate the claims of consumers and other groups of people whose individual claims would be too small to warrant litigation,” courts look favorably on consumer classes such as the ones proposed here. Pis.’ Mot. at 23 (quoting Smilow v. Sw. Bell Mobile Sys., Inc.,
The Plaintiffs’ arguments for why common questions predominate vary depending on the requirements of the state causes of action.
The Plaintiffs argue that liability under the California UCL, the Washington CPPA, and unjust enrichment in Maine and Washington D.C. turns exclusively on “the defendants conduct,” eliminating the need for class members to prove “reliance, injury and causation.” Id. at 25-27 (California UCL), 32-33 (Washington D.C. CPPA), 42-44 (Maine unjust enrichment). Acknowledging that class representatives must prove individual standing, the Plaintiffs contend that there is no requirement that all “class members must individually show they have the same standing.” Pis.’ Reply at 11-12 (emphasis added by the Plaintiffs) (quoting In re Tobacco II Cases (Tobacco II),
The Plaintiffs recognize that causes of action under California CLRA, Illinois ICFA, and Illinois unjust enrichment require damage and reliance but contend these elements
Finally, the Plaintiffs argue that affirmative defenses “do[ ] not alter that common issues predominate in this litigation.” Id. at 31 (quoting Smilow,
The Plaintiffs assert that a class action is superior to other means of resolution because a “class action is the only efficient and realistic means for Class members to pursue this litigation.” Pis. ’ Mot. at 45. Comparing the Defendants, “multi-billion dollar companies that have a history of vigorously litigating matters related to their tobacco products,” with the minimal damages to each class member, the Plaintiffs argue that, absent class certification, “individual Class members have very little interest in prosecuting or controlling this matter.” Id. at 45-46. The Plaintiffs suggest that the classes are manageable because the certification is by state and “upon completion of the pretrial proceedings, the underlying actions will be returned to the transferor districts for trial and a decision on the merits.” Id. at 46.
The Plaintiffs separately assert that certification of the California class is also proper under Rule 23(b)(2). Id. Describing Rule 23(b)(2) as allowing class injunctive relief when “the party opposing the class has acted or refused to act on grounds generally applicable to the class,” the Plaintiffs argue the California Class meets the standard because
At oral argument, the Plaintiffs reframed their argument. The Plaintiffs emphasized the overall framework of class certification is to protect consumers from deep-pocketed businesses. They argue that the states passed the underlying laws to provide consumers with procedures to redress deception in the marketplace. Therefore, these states allow claimants to prove that the misrepresentation was objectively material. Hence, Plaintiffs argue that, while still requiring reliance, the states found it to be a common issue that should not depend on whether a specific individual actually relied. The Plaintiffs find that this situation is particularly amenable to such treatment: because the Defendants consciously manipulated the ideas of smokers, their testimony as to why they began smoking is unreliable. Plaintiffs note that Defendants have changed the focus of their advertising in recent years to deem-phasize the health benefits and the Plaintiffs assert that Defendants should not benefit from their ruse.
Furthermore, the Plaintiffs contend that compensation is a common injury.
2. The Defendants
The Defendants respond by emphasizing the differences among the individual class members. Defs. ’ Resp. at 2. Working backwards, the Defendants argue that neither Rule 23(b)(3) requirement is met. They contend that there is no predominance of common issues because four issues critical to establishing liability require individual proof.
First, the Defendants argue that liability hinges on the Plaintiffs establishing “that defendants’ alleged representations were not true — that he or she failed to receive what was allegedly promised.” Id. at 18. Citing data from them expert, Peter A. Valberg, Ph.D., and testimony from other smokers, the Defendants assert that not every light cigarettes smoker fully compensated. Id. at 25-27. In addition, the Defendants contend that because they are not liable for intentional compensation, individual trials are necessary to determine whether the class members took such steps as purposefully blocking ventilation holes or consciously smoking more frequently. Id. at 27-28. Furthermore, addressing the Plaintiffs’ theories that light cigarette smokers subconsciously compensated, the Defendants say that these theories require an individual determination as to whether the smoker was addicted and whether the smoker had previously smoked
Second, the Defendants contend that the Plaintiffs cannot prove injury on a class-wide basis. Id. at 29-39. They assert that each of the Plaintiffs’ causes of actions require proof of injury. Id. at 30 (Illinois ICFA and California CLRA), 31-33 (California UCL), 36-37 (Washington D.C. CPPA), 39 (unjust enrichment in Illinois, Washington D.C., and Maine). In the alternative, the Defendants assert that Article III “dooms plaintiffs’ ‘no injur/ theory.” Id. at 34 (California UCL), 37 (Washington D.C. CPPA). The Defendants argue that to establish injury on a class-wide basis, the Plaintiffs must prove two things: first, a way of showing that the class members “did not receive what was allegedly promised (less tar and nicotine) and second, a way of showing that the class members suffered an ‘economic injury’ when both cigarettes cost the same.” Id. at 40-41 (citing In re New Motor Vehicles Canadian Export Antitrust Litig.,
Third, the Defendants contend that the Plaintiffs cannot prove on a class-wide basis that they purchased the product as a result of “being deceived by the alleged misrepresentations.” Id. at 44. The Defendants argue that class members must prove reliance to recover under the pending claims. Id. at 45 (Illinois IFCA), 46 (California CLRA), 47-48 (California UCL), 49-50 (Washington D.C. CPPA), 50-51 (unjust enrichment in Illinois, Washington D.C., and Maine). The Defendants separately argue that the “inference of reliance” under California CLRA does not apply where, as here, “the record demonstrates that consumers have different beliefs about or reasons for purchasing the product.” Id. at 46 (citing, for example, In re Vioxx Class Cases (Vioxx),
Fourth, the Defendants contend that their affirmative defenses of statute of limitations and the voluntary payment doctrine cannot be resolved on a class-wide basis. The Defendants describe how the health risks associated with smoking light cigarettes began to be publicly disseminated in the 1970s and are now widespread. Id. at 9-10 (providing a condensed timehne of public information about the health risks of smoking light cigarettes). Because the statute of limitations period for the Plaintiffs’ claims begins “once the cause of action first accrues for a light claimant,” the Defendants argue that there would need to be an individual trial for each Plaintiff to determine when he or she first learned about the health risks. Id. at 63. The Defendants contend that limiting the class periods to the statute of limitations periods does not circumvent the problem because the classes would include Plaintiffs whose cause of action had long since accrued. Id. at 62-63. Similarly, the Defendants say that the voluntary payment doctrine is an affirmative defense to those Plaintiffs who continued to purchase cigarettes with the knowledge of the alleged fraud. Id. at 64-65. Because Defendants are entitled to assert the defense in at least three of the four states, the Defendants claim individual inquiries are required. Id. at 65.
The Defendants argue that the predominance of individual issues also undermines the superiority of a class action: “determination of these [individual issues] would inevitably devolve into ‘extensive individualized proceedings,’ defeating any efficiencies of class-wide treatment.” Id. at 66 (quoting Oshana v. Coca-Cola Bottling Co.,
The Defendants additionally attack two of the four Rule 23(a) requirements. In a footnote, the Defendants contend that the predominance of individual issues means that “the proposed class representatives also fail to meet the Rule 23(a)(3)’s typicality requirement.” Id. at 65 n. 55. Because of the substantial differences among class members, the Defendants argue that there cannot “be any ‘typical’ plaintiff to assert lights claims.” Id. (Citing Cleary v. Philip Morris,
The Defendants also argue that class representatives are inadequate under Rule 23(a)(4). Id. at 72. The Defendants argue that the principles of res judicata and claim splitting bar “potentially more lucrative” future personal injury lawsuits because consumer fraud and personal injury claims are based on the same “nucleus or operative fact.” Id. at 73 (quoting Waldman v. Vill. of Kiryas Joel,
Finally, the Defendants argue that individual issues also defeat class certification under Rule 23(b)(2). Id. at 17 n. 17. Describing how Rule 23(b)(2) requires that the class be “cohesive,” the Defendants contend it is “an even more demanding standard than predominance.” Id. (citing Barnes v. Am. Tobacco Co.,
B. Class Certification and Light Cigarettes Litigation
This is not the first attempt at certification of a class of purchasers of light cigarettes. Cleary v. Philip Morris USA, Inc.,
The courts that denied certification adopted the Defendants’ framework. Emphasizing differences among smoker compensation, beliefs, and motivations behind smoking, these courts concluded that the existence of these individual issues defeated commonality, Oliver,
C. Class Certification
Before certifying a class, the Court must review whether the Plaintiffs have met their burden to prove each Rule 23(a) factor and one Rule 23(b) requirement. Smilow,
D. Rule 23(a) Factors
The Defendants only contest typicality and adequacy, appearing to concede that the
1. Numerosity
The numerosity requirement is satisfied when “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The Plaintiffs estimate that each class includes “thousands of members.” Pis.’ Mot. at 16. Although the Plaintiffs do not provide record evidence to support their estimate, common sense suggests that the number of people who purchased light cigarettes from the Defendants during the class period in each class state would be in the thousands. Accord Garcia-Rubiera v. Calderon,
2. Commonality
Commonality requires only that the plaintiffs show that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is a “low bar.” Canadian Export,
3. Typicality
The class representative’s claims are “typical” under Rule 23(a)(3) when “Plaintiffs’ claims arise from the same event or practice or course of conduct that gives rise to the claims of other class members, and ... are based on the same legal theory.” Garcia-Rubiera,
4. Adequacy
Adequacy requires that the class representatives “fairly and adequately protect the interests of the class.” Fed.R.Civ.P.
The Defendants’ contend that the class representatives are inadequate because they “have waived potentially more lucrative personal injury claims” on behalf of absent class members. Defs. ’ Resp. at 72-73. It is true that res judicata precludes parties “from re-litigating claims that were raised or could have been raised” in a previous action that has received final judgment on the merits. Apparel Art Intern., Inc. v. Amertex Enters. Ltd,
Here, the proposed class actions would leave class members’ personal injury claims unresolved. The Plaintiffs’ unjust enrichment and statutory consumer protection claims allege economic injury without regard to whether the misrepresentations caused physical harm. Personal injury claims would most likely require individualized presentation of evidence, rendering class certification questionable. Murray v. GMAC Mortgage Corp.,
In addition, the Defendants have not demonstrated that any of the proposed class representatives currently have a claim for personal injury. “To defeat the adequacy requirement of Rule 23, a conflict must be more than merely speculative or hypothetical.” Coffin v. Bowater, Inc.,
Finally, Rule 23(c)(2)’s notice requirement softens the impact of res judicata on these proceedings. A class member can preserve personal injury claims by opting out. Fed. R. Crv. P. 23(c)(2)(v) (stating that “the court will exclude from the class any member who requests exclusion”); see Gunnells,
E. Rule 23(b)(3)
Rule 23(b)(3) requires that (1) “questions of law or fact common to class members predominate over any questions affecting*416 only individual members”; and (2) class treatment “is superior to other available methods for fairly and efficiently adjudicating the controversy.” The Rule gives a non-exhaustive list of factors that may be relevant in evaluating these requirements:
(A) the class members’ interest in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3); Amchem Prods., Inc. v. Windsor (Amchem),
1. Predominance
To establish predominance under Rule 23(b)(3), the plaintiffs must demonstrate that the proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem,
a. Injury and Causation
Whether the class members were damaged because of the Defendants’ misrepresentations is an individual inquiry that cannot be proven on a class-wide basis. The record contains unrefuted evidence that many light cigarettes smokers do not fully compensate when they smoke and that the extent of their compensation can only be predicted by assessing their individual smoking habits. Peter A. Valberg Decl. Attach. 10 ¶¶ 4, 60-78 (Docket # 204) (Valberg Decl.) (summarizing his conclusions that not all smokers fully compensate); Errol Zeiger Decl. Attach. 24 ¶¶ 5, 61-66 (Docket # 204) (same); Eric M. Kaplan Decl. Attach. 26 ¶¶ 9, 22-56 (Docket # 204) (giving expert testimony on the connection between addiction and compensation and how not every class representative was addicted); Valberg Decl. ¶ 30 (giving expert testimony on the correlation between compensation and switching from regular cigarettes to lights). If smokers did not fully compensate, they were not injured by the misrepresentations because they received lower levels of tar and nicotine. There is also significant record evidence that many smokers did not believe the Defendants’ claims that light cigarettes had lower tar and nicotine and smoked light cigarettes for reasons unrelated to the alleged health benefits. See Charles R. Taylor Decl. Attach. 42 (Docket #204) (giving expert testimony on different beliefs and reasons for smoking light cigarettes); Tyrer Dep. Attach. 4 at 81:16-82:5 (Docket # 184) (stating that he prefers the flavor of light cigarettes and continues to smoke them even after knowing the health risks associated with them); Peter C. English Decl. Attach. 9 (Docket #204) {English Decl.) (describing the public disclosures of the health risks associated with light cigarettes); Aff. of Brendan McCormick Attach. 21 (Docket # 204) {McCormick Aff.) (detailing the disclosures of the health risks of light cigarettes made by the Defendants). For these smokers, there is no causal connection between the misrepresentations and the purchases of light cigarettes.
The Plaintiffs give two reasons why none of the causes of action requires the Plaintiffs to individually prove that they were damaged by the Defendants’ misrepresentations. First, the Plaintiffs contend that the causes of action that require proof of injury and causation, the Illinois ICFA, unjust enrichment in Illinois, and the California CLRA, can be satisfied through class-wide proof. The Plaintiffs acknowledge that to establish a cause of action under the Illinois ICFA, the Plaintiffs must show, in part, “(4) actual damage to the plaintiff that is (5) proximately
The Plaintiffs also acknowledge that a cause of action under the California CLRA is only available to a “consumer who suffers any damage as a result of [the misrepresentations]” of a company. Pis. ’ Mot. at 28-29 (quoting Cal. Civ.Code 1780(d)). The Plaintiffs contend the “any damage” requirement in the CLRA is broader than “actual damages,” but they do not specify how the “California Class members were harmed as the result of purchasing Defendant’s light cigarettes.” Pis.’ Reply at 18 (quoting In re Steroid Hormone Prod. Cases,
In addition, although the Plaintiffs are correct that courts infer reliance “when a defendant omits facts that would have been material to any reasonable person contemplating purchase,” Pis. ’ Mot. at 29, this inference is not automatic. Instead, California courts find an inference of reliance inappropriate when “class members were provided such a variety of information that a single determination as to materiality is not possible.” Mass. Mut. Life Ins. Co. v. Superior Court,
Second, the Plaintiffs contend that injury and causation are not elements of claims for unjust enrichment in Maine and Washington D.C. or claims under the California UCL and
The Plaintiffs are right that, like unjust enrichment in Maine and Washington D.C., injury and causation are not required under either the Washington D.C. CPPA or the California UCL. The Washington D.C. CPPA was amended in 2000 to read that it could be violated by misrepresentation “whether or not any consumer is in fact misled, deceived or damaged thereby.” CPPA § 28-3904. The Defendants contend that one federal court has required reliance notwithstanding the CPPA’s explicit language. Defs. ’ Resp. at 49 (citing Williams v. Purdue Pharma Co.,
The California UCL requires class representatives to prove injury and reliance but excuses the requirement for class members. After Proposition 64 was approved in 2004, class representatives have standing under the UCL only if they “have suffered injury in fact and [have] lost money or property as a result of such unfair competition.” UCL § 17204, as amended by Prop. 64, § 3. However, because class members are still entitled to recover money “which may have been acquired by means of the unfair practice,” class members have standing under the UCL “without individualized proof of deception, reliance and injury.” Tobacco II,
Regardless of the specific requirements of the California UCL and Washington D.C. CPPA, however, this Court’s jurisdiction is limited by Article III standing. See, e.g., Hoyte v. Yum! Brands, Inc.,
The Plaintiffs contend that federal courts require “that only the named plaintiff must demonstrate standing.” Pis.’ Reply at 14. Because the class representatives “purchased light cigarettes as the result of seeing and believing Defendants’ labeling and advertising” and “did not receive what they were promised,” the Plaintiffs conclude that the Article III standing requirements are met. Pis. ’ Reply at 20. The Plaintiffs are correct that the Court must assess standing in relation to named class representatives; class members “need not make individual showings of standing.” Rozema v. The Marshfield Clinic,
However, federal courts cannot certify a class “that contains members lacking Article III standing.” Denney,
The tension between the injury requirement and the practicalities of class action litigation is well described in Kohen. The Kohen Court conceded that “a class will often include persons who have not been injured by the defendant’s conduct; indeed, this is almost inevitable because at the outset of the case many of the members of the class may be unknown, or if they are known still the facts bearing on their claims may be unknown.” Id. Kohen says that the possibility that some persons in the class may not have been injured by defendants’ conduct “does not preclude class certification.” Id. At this stage, the focus is on “the class definition; if the definition is so broad that it sweeps within it persons who could not have been injured by the defendant’s conduct, it is too broad.”
The Plaintiffs’ stronger argument, although not raised by the Plaintiffs in the context of Article III, is that by treating purchase of a misrepresented product as injury, state legislatures have created a legal right that confers standing. See Vioxx,
The state statutes at issue here, however, purport to excuse injury, not redefine it. See CPPA § 28-3904 (stating that the statute is violated “whether or not any consumer is in fact misled, deceived or damaged thereby”); Tobacco II,
Even assuming that the California UCL and the Washington D.C. CPPA recognize an injury “for having been exposed to misrepresentations,” the Plaintiffs still must prove that each class member bought a misrepresented product. Vioxx,
b. Affirmative Defenses
Affirmative defenses also cannot be decided on a class-wide basis. The Plaintiffs argue that any individual issues raised by the affirmative defenses “do[ ] not alter that common issues predominate in this litigation.” Pis.’ Reply at 31. The Plaintiffs are correct that “[ejourts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.” Smilow,
Here, both the statute of limitation and the voluntary payment doctrine are individual inquiries. The crux of the Plaintiffs’ arguments for commonality on both issues is that these defenses depend on class members’ knowledge of the alleged misrepresentations, which Defendants uniformly concealed. However, regardless of the Defendants’ actions, individual motivations for purchasing light cigarettes, perceptions of the health consequences of light cigarettes, and the accuracy of Defendants’ marketing schemes may have differed greatly among class members. The Plaintiffs argue that the relevant question in considering when a cause of action accrued for statute of limitations purposes is when a class member should have known of the alleged misrepresentations. Yet, as the Defendants point out and the statutory language makes clear, the relevant question is when a class member knew or should have known. Certain class members may have actually known the truth about light cigarettes well before other class members reasonably should have known it. Furthermore, even if the statutes are read as the Plaintiffs’ construe them, when a class member should have known of the alleged misrepresentations is an individual question given the varying ages, levels of sophistication, and other specific circumstances of the individual class members. Therefore, while the affirmative defenses alone may not bar class certification, the individual inquiries they raise weigh against the predominance of commonality.
2. Superiority
Superiority exists where “there is a real question whether the putative class members could sensibly litigate on their own for these amounts of damages, especially with the prospect of expert testimony required.” Gintis v. Bouchard Transp. Co., Inc.,
Despite this strong policy in favor of certification, individual issues of injury, causation, and affirmative defenses defeat the superiority of class treatment. Individual issues surrounding who qualifies as a class member and the damages each member is owed further undermine the superiority of class certification. Because cigarettes are inexpensive and purchased frequently, it is unlikely that class members will have receipts or other ways of objectively proving purchase history. See Ludke v. Philip Morris Cos. Inc.,
F. Rule 23(b)(2) Factors
A class action may be maintained under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Mr. Tyrer seeks both a preliminary and permanent injunction compelling Defendants to refrain from any use of the terms “low tar,” “light,” “mild,” “medium,” and “ultra light” in any of its marketing materials, “or to engage in any promotional campaigns[ ] that portray ‘light’ and ‘low tar’ cigarettes as less harmful than full-flavor cigarettes.” Tyrer’s Second Am. Compl. ¶ 5.
However, in the summer of 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, prohibiting descriptors that imply a tobacco product is “less harmful” than other tobacco products or has a “reduced level[,] ... presents a reduced exposure to[,] ... or is free of a substance” unless specifically approved by the Secretary. 21 U.S.C. § 387k(a)-(b). Article Ill’s “case or controversy” requirement requires that “[a] case must be dismissed as moot if, at some time after the institution of the action, the parties no longer have a legally cognizable stake in the outcome.” N.H. Motor Transp. Ass’n v. Rowe,
The fact that Mr. Tyrer also seeks monetary damages does not cure the defect. Tyrer’s Second Am. Compl. ¶ 5. Although it is true that “a claim for damages may prevent a case from becoming moot where injunctive relief no longer presents a live controversy,” Cnty. Motors, Inc. v. Gen. Motors Corp.,
Because none of the four classes has met any of the requirements under 23(b), class certification is inappropriate.
III. CONCLUSION
The Court DENIES the Plaintiffs’ Motion for Class Certification (Docket # 186).
SO ORDERED.
Notes
. "Light” cigarettes refer to all light and low tar cigarettes marketed by Philip Morris and Altria. Defs.’ Resp. in Opp'n to Mot. to Certify Class at 1 n. 1 (Docket # 204) (Defs.’ Resp.).
. On October 21, 2009, the Court and the parties agreed that each party would select two exemplar states for class certification. Minute Entry (Docket # 28). On November 3, 2009, the Court held a telephone conference with counsel and it was agreed that the Plaintiffs would select their two by November 13, 2009 and the Defendants would select theirs by December 30, 2009. Report of Conference Clarifying Aspects of Procedural Order and Order (Docket # 43). On November 16, 2009, the Plaintiffs picked California and Washington D.C. Notice!Correspondence (Docket # 47); on December 30, 2009, the Defendants picked Illinois and Maine. Notice!Correspondence (Docket # 108).
. On September 29, 2010, the Defendants requested further oral argument on the pending motion for class certification and on September 30, 2010, the Plaintiffs objected. Letter from H. Peter Del Bianco, Jr. to Hon. John A. Woodcock, Jr. (Sept. 29, 2010) (Docket #240); Letter from Samuel W. Lanham, Jr. to Hon. John A. Woodcock, Jr. (Sept. 30, 3010) (Docket # 241). On October 1, 2010, the Court deferred ruling on the Defendants’ request. Having reviewed the mem-oranda and having received oral argument on the pending motion, the Court has concluded that no further oral argument is in order and denies the Defendants’ request.
. Although the Plaintiffs bring claims under both the UCL and FAL, the parties argue almost exclusively about the requirements of the UCL. See, e.g., Pis.’ Mot. at 25-28 (exclusively describing the California’s Class UCL claim without reference to the FAL). Because the UCL and FAL claims are based on the same cause of action, the Court addresses only the UCL standards.
. Although individually alleging that the Defendants violated Maine’s Unfair Trade Practices Act, 5 M.R.S.A. § 205-A, et seq., the class representatives do not seek class certification on these claims. Pis.'Mot. at 11 n. 10.
. The Plaintiffs also separately argue that Mr. Tyrer is an adequate class representative because he meets the "unique class representative standing requirements" found in California’s UCL. Pis.’ Mot. at 20. The Defendants respond that the issue is addressed in Philip Morris USA, Inc.'s Motion for Summary Judgment on the Plaintiffs' Claims for Lack of Causation. Defs.’ Resp. at 31 n. 28. Having concluded that standing is a fact question in its Order addressing the Defendants' motion, the Court need not readdress the issue. Order Denying Philip Morris USA, Inc’s Motion for Summary Judgment on the Plaintiffs' Claims for Lack of Causation at 15 n.13. (Docket # ss).
. The Plaintiffs address the requirements of each cause of action separately by state. See, e.g., Pis.' Mot. at 25. The Court groups the common arguments together for summarizing purposes.
. The Plaintiffs question whether voluntary payment is an available defense under either the UCL or CLRA, Pis.' Proffer at 24, assert that its use is "particularly disfavored in cases involving intentional and/or fraudulent misconduct” in D.C., Id. at 28, and contend that the doctrine is inapplicable to this action in Illinois because the claims sound in fraud and misrepresentation, Id. at 34.
. Defendants' experts assert that compensation is the act of changing how one smokes in order to receive as much tar and nicotine from lower yield cigarettes as one would from higher yield cigarettes. It can be accomplished by, for example, smoking a lower yield cigarette more intensely or smoking more lower yield cigarettes than higher yield cigarettes. One who compensates to the extent that he or she receives the same levels of tar and nicotine smoking lower yield cigarettes as he or she would receive smoking higher yield cigarettes is said to compensate completely, or 100 percent. See Defs. Reply at 6-8; see also generally, Peter A. Valberg Decl. Attach. 10 (Docket # 204), Errol Zeiger Decl. Attach. 24 (Docket # 204), and Eric M. Kaplan Decl. Attach. 26 (Docket # 204)
. Another case, Price v. Philip Morris, Inc., No. 00-L-112,
. The Defendants contend that the predominance of individual issues means there cannot "be any ‘typical’ plaintiff to assert lights claims.” Defs.'Resp. at 65 n. 55. (Citing Cleary, 265 F.R.D. at 292). The Court recognizes that typicality and predominance are related. Canadian Export,
. Some courts hold that a class action "is one of the recognized exceptions to the rule against claim-splitting.” Gunnells v. Healthplan Servs., Inc.,
. Courts insert standing into the class certification requirements by either implying a prerequisite or through typicality. Some federal courts assess whether a proposed class is defined so that it is "reasonably clear that the proposed class members have all suffered a constitutional or statutory violation warranting some relief.” Adashunas v. Negley,
. Although plaintiffs can sometimes raise the rights of others, those circumstances are not present here. Playboy Enterprises, Inc. v. Public Service Com’n of Puerto Rico,
. The Defendants argue that Canadian Export requires that the Plaintiffs "provide a sufficient record of 'how ’ they would establish class-wide injury to enable the Court 'to test the viability of plaintiffs’ theory.” Defs.’ Resp. at 41 (quoting Canadian Export,
. "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossuaries for the argument, and put flesh on its bones.” United States v. Zannino,