Last Thursday, the Second Circuit issued McLaughlin v. American Tobacco Company, No. 06-4666 (2d Cir. Apr. 3, 2008), reversing Judge Jack Weinstein's certification of a class including virtually all Americans who had purchased cigarettes labeled as "light" or "lights." Plaintiffs alleged that they were deceived into believing that “light” cigarettes are healthier than “full-flavored” cigarettes. The court of appeals held that the class could not meet Federal Rule of Civil Procedure 23(b)(3)'s requirement that the common questions predominate over the individual questions for a number of reasons, including the need for each plaintiff to show that he or she relied on defendants' deceptions. The court of appeals acknowledged that a district court may partially certify a case on common issues (even where individual questions predominate on other issues) under Rule 23(c)(4), but held that use of that Rule was impermissible in this case because it would not “reduce the range of issues in dispute and promote judicial economy.”
Note that the Supreme Court has granted review in another "light" tobacco case, Altria v. Good, 07-562. That case presents the question whether the plaintiffs' claims are preempted by federal law.
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