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Philadelphia lawyers in Florida were disputing the certification of a class of smokers there who puffed on “light” cigarettes, believing their allegedly lower tar and nicotine count was better for smokers’ health. Tobacco giant Philip Morris prevailed last week when a state appeals court in West Palm Beach reversed a trial court’s certification of a class of Marlboro Lights and Ultra Lights smokers. The ruling makes the 4th District Court of Appeals in Florida the first state appellate court to rule on the class action “lights” smokers’ issue. An attorney for the Florida smokers in Philip Morris USA Inc. v. Hines, Stephen A. Sheller of Sheller Ludwig & Badey in Philadelphia, has pioneered consumer fraud class actions against “light” cigarette manufacturers in states such as Massachusetts, California and Illinois, where his clients won more than $10 billion in punitive and compensatory damages against Philip Morris last year. This time, Sheller lost. The consumer fraud claims his clients brought against Philip Morris alleged that the company knew its “light” cigarettes really didn’t contain less nicotine and tar but deceptively designed and marketed a filter system that diluted smoke from the cigarette with outside air. The plaintiff smokers alleged that Philip Morris knew how many smokers cover the ventilation holes in the cigarette filters with their fingers or lips when they inhale, causing the smoker to take in the same amount of tar and nicotine as they would had they smoked regular Marlboros, according to the opinion. Lawyers from Dechert, including Robert C. Heim, had argued against the class certification, saying Philip Morris would defend its design and marketing of “lights” by detailing individual smokers’ behavior and motivations for choosing “lights.” Heim and his defense team presented evidence that a substantial number of smokers purchase low-tar and low-nicotine cigarettes for their taste rather than any perceived health benefits. They also said smokers who buy “lights” for health purposes and don’t cover up ventilation holes would have in hand a product with less nicotine and tar, which is what they paid for, according to the opinion. The Palm Beach County trial judge had ruled that neither the subjective motives of the individual purchasers nor their smoking habits were relevant to the case’s central issues. The appeals court said Dec. 31 that this was an error. Because the individual behavior of each smoker would be relevant to Philip Morris’ defense of the case, the plaintiffs’ claims failed to satisfy the requirements of class certification under Florida’s state rules of civil procedure, the appeals court concluded. “Despite a common nucleus of facts concerning a prospective class action defendant’s conduct, a lawsuit may present individualized plaintiff-related issues which make it unsuitable for class certification,” the per curiam opinion said. Heim said the ruling establishes that class actions for alleged economic loss due to “lights” are “overwhelmingly individual” in how the consumers’ circumstances would be analyzed under Federal Rule 23 of Civil Procedure, which governs class action certification and serves as the basis of the Florida state rule. “We think this will be instructive for other courts around the country,” said Heim, who worked on the case with Ezra K. Rosenberg, Judy L. Leone and Ronni E. Fuchs. In 2000, Philadelphia Common Pleas Judge Stephen E. Levin denied class certification to a group of “light” cigarette smokers in Oliver v. R.J. Reynolds Tobacco Co.

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