Academic journal article Defense Counsel Journal

New Yorkers' Novel Theory Fails to Impress

Academic journal article Defense Counsel Journal

New Yorkers' Novel Theory Fails to Impress

Article excerpt

New Yorkers' Novel Theory Fails to Impress

Five class actions against cigarette manufacturers, each of which could have contained one million persons, were knocked out of the box by New York courts. The New York Appellate Division decertified the putative class actions, 679 N.Y.S.2d 593 (App.Div. 1st Dep't 1998), and the New York Court of Appeals affirmed in Small v. Lorillard Tobacco Co., 1999 WL 976090, October 26, 1999.

The plaintiffs, supported by the New York attorney general, grounded their case on New York's consumer fraud statute, Section 349 of the General Business Law, and low-balled their claims to shape a legally de minimus theory of the case--that is, create a "negative value" suit in which each member's damages would be so small that only a class action would be worth the expense of litigation. They sought only reimbursement of the purchase cost of cigarettes they would not have brought but for the cigarette manufacturers' fraudulent and deceptive practices--that the companies concealed the additive quality of nicotine, controlled the level of nicotine to cause or maintain addiction, and secretly used chemicals to enhance the addictive qualities. Although they won class certification in the trial court, the plaintiffs accepted that court's elimination of the addiction factor. …

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