by Stephen Gardner
When Judge Jack Weinstein (pictured here) issued his opinion on September 25, agreeing that the New York lawsuit against Big Tobacco should be a class action, he sent a shockwave through the marketing community in general, not just the tobacco companies.
Asking “What's the Judge Smoking?” the Wall Street Journal said that this case was just another in a series of those nasty trial lawyers using “current public sentiment against Big Tobacco to create a more lawsuit-friendly legal environment, which is what these ‘consumer fraud’ cases are really about.” This utterance by the Journal was on the paper's editorial pages; its high journalistic standards would not have permitted it to report such errant nonsense as fact.
In truth, this lawsuit is simply another example of lawyers acting in the public interest to try to rein in the depredations of American marketers. Although this case is about a relatively unique product — one that is fatal when used properly — the methods used by Big Tobacco are no different in kind or scope than those used by Big Food, Detroit, lenders, or used car dealers. At the heart of the light tobacco case is the fact that Big Tobacco engaged in a variety of bait and switch, promising a healthier cigarette but delivering something else. What is perhaps most remarkable about Judge Weinstein’s opinion is that he did hold Big Tobacco to a higher standard than any marketer, simply holding that tobacco companies had to comply with consumer protection laws.
However, there are several other aspects of the ruling that are very significant and warrant discussion.
The opinion was by no means easy pickings for the plaintiffs. At the outset, the court said that it had conducted a “rigorous analysis” of the case, including an examination of the merits, noting that “courts should not launch the heavy and expensive machinery of the class action unless there is a chance for a recovery.” And the court proceeded to do so, within the framework of the tobacco companies’ motion for summary judgment.
This case is the largest class action ever certified, representing as many as 60 million light cigarette smokers. Judge Weinstein recognized that without a class action, the economics of litigation would prevent all these people from ever getting a day in court.
Proving Classwide Reliance
Judge Weinstein recognized that reliance, which is often presents a proof problem in class actions, could be proven by something short of the individual testimony of all 60 million victims. His opinion discussed the various ways that reliance could be proven, including “fraud on the market” and expert testimony.
The judge recognized that “Where the fraudulent scheme is limited in scope and specifically targeted at only one or a few individuals, organizations, or entities, the establishment of causation may require reliance on identifiable misrepresentations.” However, in this case, he noted that “sophisticated, broad-based fraudulent schemes by their very nature are likely to be designed to distort the entire body of public knowledge rather than to individually mislead millions of people. From the perspective of the fraudulent actors, clear efficiencies are gained by co-opting the media and other outlets of information as unwitting tools for such a pervasive scheme.”
In other words, he allowed the companies to be hoist by their own petards, recognizing that the heart and soul of deceptive marketing practices is that consumers rely on the representations by buying the product. He refused to permit the tobacco companies to advance the makeweight argument that people who bought “light” tobacco products were just acting on a variety of individualized whims, rather than responding to a carefully orchestrated marketing campaign.
The Opposite of Radical
In addition to the Wall Street Journal, other media waxed wroth over the radical ideas of this judge. The New York Sun published an editorial describing Judge Weinstein as “the most skillfully activist judge on the federal bench” (using as its source the redoubtable Wall Street Journal’s editorial page).
Judge Weinstein’s opinion was the opposite of radical. He simply hewed to decades of class action jurisprudence, recognizing what the Supreme Court has said several times — that without class actions, some rights will never be vindicated. He would have been acting in an activist manner had he done what the tobacco companies wanted, allowing them to escape liability for their misdeeds.
One example of the opinion conservatively following decades of law was in its review of the question whether a class action was “superior” to other methods of resolving the controversy. Too often these days, some courts — the true “activist” ones — have used the excuse of the complexity of a large class action to hold that a class action was not superior, apparently concluding that no litigation at all — which is what the defendants wish — is truly superior. This never has been the standard, but some courts are advancing it now.
Judge Weinstein instead applied the law, recognizing that — no matter how difficult it might be to apply multiple different state laws with 60 Million plaintiffs, it was still more efficient, more effective — indeed, “superior” — to the only true alternatives of 60 Million separate trials or no trials at all.
It’s a sad thing indeed when a court is labeled radical when it merely applies the law without any bias except a commitment to the operation of the rule of law. But after years of pro-business appointments to the federal bench and massive infusions of business money to elect their own state judges, this is what we get all too often. It’s refreshing to see a judge who is determined to do nothing but to apply the law. Let’s hope it strikes fear into the hearts of all marketers, who have grown lazy and fat of late, in the absence of any effective control by the federal government on their excesses (but that’s another article).
Related: CL&P first mentioned the opinion here, on the day it was issued.
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