Academic journal article Defense Counsel Journal

No Class Action Because of Individual Issues

Academic journal article Defense Counsel Journal

No Class Action Because of Individual Issues

Article excerpt

In Small v. Lorillard Tobacco Co., 1998 WL 398176, July 16, the New York Appellate Division, First Department, reversed the trial court and decertified two huge class actions against five major cigarette manufacturers. (See 668 N.Y.S.2d 307 (Sup.Ct. N.Y. Cty. 1997).)

For each of the five class actions, the trial court certified a class defined as persons who purchased and smoked the defendants' cigarettes in New York state on or after June 19, 1980. So defined, the plaintiff class for each of the five lawsuits would exceed a million persons.

The plaintiffs did not seek damages for ill health caused by smoking. Their suit was cast as a consumer fraud case in which they sough recovery of the money they had spent on cigarettes since 1980, as well as an injunction preventing the cigarette manufacturers from making further misrepresentations about nicotine and ordering them to notify the class members about the drug's true effect on smokers. They alleged common law fraud, civil conspiracy by lying about nicotine's addictive properties, and violations of New York's deceptive business practices legislation.

In an opinion by Justice Rosenberger, the Appellate Division rested its decision on the predominance of individual issues. …

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