Lawrence v. Philip Morris USA, Inc.: New Hampshire Supreme Court Reverses Class Certification in 'Light' Cigarette Case

Yesterday (08/21/2012), the New Hampshire Supreme Court reversed the certification of a class of purchasers of "Light" cigarettes in a case alleging that Philip Morris USA, Inc. (Philip Morris), by using the name "Lights" and describing the cigarettes as "Lowered Tar & Nicotine," violated the New Hampshire Consumer Protection Act. Lawrence v. Philip Morris USA, Inc., No. 2011-574 (N.H. Aug. 21, 2012). As in similar cases filed in other jurisdictions, plaintiff alleged that these descriptions falsely represented that Lights would deliver less tar and nicotine than other cigarettes. The plaintiff alleged that the filters of Lights had ventilation holes that diluted the tar and nicotine delivered per puff as measured by smoking machines, and claimed that Philip Morris specifically designed Lights to "pass" the machine tests while delivering to human smokers the same amount of tar and nicotine delivered by regular Marlboro cigarettes. Thus, she contended, the product as purchased was worth less than the product as advertised.

The trial court certified a class of consumers who purchased Marlboro Lights in New Hampshire from January 1, 1995, to the date of trial. Philip Morris challenged that decision by interlocutory appeal to the state's highest court, arguing that common issues of law or fact did not predominate over questions affecting only individual class members. (Superior Court Rule 27-A, New Hampshire's procedural rule governing class actions includes a predominance requirement. Super. Ct. R. 27-A(a)(2).)

Applying the standard the court adopted in a 2007 decision, that the determination of class certification requirements entails a "rigorous analysis" that "must go beyond the facts alleged in the pleadings," the high court found that individual issues regarding injury predominated because...

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