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light cigarettes

Altria v Good affirmed 5-4

by Ted Frank on December 15, 2008

The Supreme Court rejected (h/t Beck/Herrmann) tobacco companies’ argument that the FTC’s use of the Cambridge Filter Method standard of measuring tar and nicotine impliedly preempted lawsuits against the tobacco companies for advertising their cigarettes using data from the Cambridge Filter Method standard of measuring tar and nicotine.  The fact that the federal government disavowed preemption lends another data point in support of Professor Catherine Sharkey’s argument that the Court tends to defer to the Solicitor General’s position on preemption disputes.  Justice Thomas’s dissent, which would undo the unworkable Cipollone plurality, appears to me to be the stronger argument, but it didn’t carry the Kennedy Five.

The fact pattern is the subject of numerous multi-billion dollar lawsuits against tobacco companies alleging that their sales of light cigarettes are fraudulent.  The light-cigarette consumer fraud litigation still suffers from constitutional flaws relating to due process in aggregate litigation, but these remain to be resolved.

April 16 roundup

by Ted Frank on April 16, 2008

  • Schadenfreude overload: Eliot Spitzer fighting with Bill Lerach’s old law firm. You see, Spitzer returned Lerach firm’s money after the indictment (unlike many other Democrats); when Lerach left the firm, Spitzer hit them up for cash again; now, they’re the ones seeking money. [WSJ Law Blog; NY Sun]
  • Breakthrough on Keisler nomination. [Levey]
  • Sued for accurately saying government employee was a Mexican. [Volokh]
  • Global warming lawsuit finds conspiracy in free speech. [Pero]
  • Yet another free speech lawsuit: 50-Cent sued for “promoting gangsta lifestyle.” [Torts Prof]
  • 3-2 decision in NY Appellate Division: Not a design defect for tobacco companies to sell cigarettes that aren’t light cigarettes. [Rose v. Brown & Williamson Tobacco Co.; NYLJ/law.com via Prince]
  • Meanwhile, tobacco companies are also being sued over light cigarettes. Second Circuit tosses Judge Weinstein’s novel class certification (Point of Law); Supreme Court grants cert in Altria Group v. Good.
  • Defensive medicine one of many reasons that health-care costs so much in US [New York Times]
  • Eyewitness testimony: you can’t always believe your eyes. [Chapman]
  • First-hand report on Obama’s views on guns. [Lott]
  • Ethical problem for law firm to be representing judges in litigation seeking pay raise? [Turkewitz]

Seatbelts = light cigarettes?

by Ted Frank on December 23, 2005

Via Martin Grace, Craig Newmark tag teams with David Kopel on the Price v. Philip Morris case:

The plaintiff’s theory–agreed to, mind you, by the trial court–was that
. . . the marketing of “light” cigarettes was a form of consumer fraud. Because the cigarettes have less tar, some smokers compensated for the lower quantity of tar in an individual cigarette by inhaling deeper, or smoking larger quantities. Thus, according to the trial court, Philip Morris deceived smokers into thinking the cigarettes were safer.

How strange, except that if the theory were widely accepted the plaintiff’s bar would have more work than they could handle until the end of the world. Economists have good evidence that seatbelts change drivers’ behavior a little for the worse. So should any devices–padded dashes, anti-lock brakes, airbags–that make drivers safer. “Child-proof” caps on medicines also seem to have made people less careful in storing drugs. And Kopel notes that the theory seems tailor-made to sue makers of low-calorie foods. If this theory of harm were accepted, all those companies and more–many more–would, I assume, be liable.

Kopel concludes:

That the tobacco companies were sued for manufacturing and advertising a safer product is a good example of the perversity of modern tort law, and of the determination of anti-tobacco extremists to punish cigarette companies even when cigarette companies took affirmitive steps to reduce the dangers of smoking.

“Perversity,” indeed.

Previous commentary at Point of Law and links therein.

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March 31 – Gun-suit thoughts. Our editor has contributed an op-ed to the New York Sun outlining his view that the NAACP’s lawsuit against gunmakers (which went to trial last week amid a flurry of favorable press notices; see Mar. 24) is plenty lame and derives its only real vitality from having been filed before a favorable judge (Walter Olson, “Gun Lawsuit Meets Activist Judge”, New York Sun, Mar. 26). On an unrelated note, the House Judiciary Committee has asked our editor to discuss federal pre-emption of anti-gunmaker litigation at a hearing this Wednesday before the Subcommittee on Commercial and Administrative Law (Rayburn HOB 2141, 10 a.m.) (DURABLE LINK)

March 31 – Teachers afraid.Educators in Baltimore County and beyond say the threat of lawsuits prevents administrators from backing their punishment of disorderly or dishonest students.” One of the more thorough explorations of this topic we’ve seen recently (Jonathan D. Rockoff, “Teachers say the law adds to disorder in classroom”, Baltimore Sun, Mar. 23) (via Joanne Jacobs). (DURABLE LINK)

March 31 – Some reader letters. We’ve fallen lamentably behind in publishing readers’ letters. Here’s a batch of four, on terrorism suits against foreign entities, Sen. Edwards and cerebral palsy, one New Jersey judge’s dismissal of a playground lawsuit, and an unwelcome (to us) advertising intrusion into our newsletter. Quite a few other letters remain in our pipeline — we’ll try to get to them soon. (DURABLE LINK)

March 25-30 – Fast food opinion roundup. “The word “addiction” is perilously close to losing any meaning. If lawyers can turn fast food into an addiction and pin liability on restaurants, it won’t be long before adulterers sue Sports Illustrated, claiming its swimsuit issue led them astray.” (Sally Satel, “Fast food ‘addiction’ feeds only lawyers”, USA Today, Mar. 12, reprinted at AEI site). One 270-lb., 5-foot-6 plaintiff “said her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner”, but Chris Rangel at RangelMD concludes that the calorie count doesn’t add up — the only way you could get up to 270 pounds would be by consuming a whole lot more food than that. (RangelMD, Feb. 23). “Big Food stands charged with making the plaintiffs fat, notes Howard Fienberg in a review of a fairly dreadful-sounding book on the much-ballyhooed obesity epidemic. Yet “Grocery stores are easily accessible for most Americans. …. Healthy choices are everywhere.” (“Supersize Nation?”, AmericasFuture.org, Winter). As expected, attorney Samuel Hirsch has re-filed his suit against McDonald’s (John Lehmann, “McFatties Bite Back”, New York Post, Feb. 20). “And now, Hirsch tells Newsweek, he’s targeting companies selling weight-loss products such as herbal supplements. Within weeks, he says, his law firm will begin placing ads in magazines to invite clients who bought the products but failed to lose weight to join a class-action lawsuit.” (Daniel McGinn, Newsweek, Feb. 10). See also “Tobacco-war lawyers taking aim at fast food”, Sacramento Bee, Feb. 24; Duane Freese, “Frankensuits”, Tech Central Station, Feb. 27.
(DURABLE LINK)

March 25-30 – “How a lawyer blew the whistle on a judge”. “It was the most distasteful thing I ever had to do in my life” said Joel Persky of his decision to turn in Allegheny County Common Pleas Judge Joseph A. Jaffe, who offered favorable rulings in Persky’s asbestos cases in exchange for a cash quid pro quo (see Sept. 3, 2002). Had Persky merely ignored the judge’s overtures, according to one “seasoned” lawyer, he might have been laying himself open to legal malpractice charges. “Jaffe, 52, pleaded guilty last month to extorting money from Persky and will be sentenced May 16. Jaffe has qualified for a temporary, $60,000 a year disability from the State Employees’ Retirement System because he is depressed. The system’s board of trustees will vote on whether to award the money in March.” (Marylynne Pitz, Pittsburgh Post-Gazette, Mar. 2). (DURABLE LINK)

March 25-30 – Gone for a few days. The site will lie fallow while our editor gives several speeches to promote his new book. See you Monday. (DURABLE LINK)

March 24 – Mad County pays out again. “A judge in Madison County, Ill., ordered Philip Morris USA Inc. to pay $10.1 billion in a class-action lawsuit that claimed the tobacco giant misled smokers about the dangers of light cigarettes.” Circuit Judge Nicholas G. Byron “gave the plaintiffs’ lawyers a quarter of the compensatory damages, or nearly $1.8 billion.” (“Philip Morris Hit With $10.1B Verdict in Illinois Case, Dow Jones/Quicken, Mar. 21; Trisha Howard and Paul Hampel, “Tobacco firm lawyer derides court’s reputation”, St. Louis Post-Dispatch, Mar. 22; related stories; Sherri Day, “Philip Morris Faces Big Penalty”, New York Times, Mar. 22). Madison County, Ill. is located east of St. Louis (map); its main cities include Alton, Edwardsville and Granite City. For more on its fame as a “plaintiff’s paradise” and “judicial hellhole” for defendants, see notes below, including work sponsored by the Manhattan Institute, with which our editor is associated. (Update Apr. 2-3: Philip Morris says it is unable to post appeals bond; more updates.)

MORE ON MADISON COUNTY: “Study finds Madison County has most class action suits per capita”, AP, Sept. 11, 2001; Jim Getz, “Class-Action Suits Soar In Madison County, Study Says; Think Tank Argues For Moving Cases To Federal Court”, St. Louis Post-Dispatch, Sept. 11, 2001; John H. Beisner and Jessica Davidson Miller, “They’re Making a Federal Case Out of It … In State Court”, Manhattan Institute Civil Justice Report #3, Sept. 2001; Noam Neusner with Brian Brueggemann, “The judges of Madison County”, U.S. News, Dec. 17, 2001 (fee); Sen. Herb Kohl (D-Wis.), Statement on Class Action Fairness Act, Congressional Record, Nov. 15, 2001; Lester Brickman, “Anatomy of a Madison County (Illinois) Class Action: A Study of Pathology”, Manhattan Institute Civil Justice Report #6, press release, Aug. 12, 2002. (DURABLE LINK)

March 24 – Stalking horse for anti-gun litigators. If the NAACP really does have legal standing to sue firearms manufacturers and demand that a court impose gun-control measures on them, one might reasonably conclude that in the future anyone will henceforth have standing to sue anyone over anything. Still, this notional standing has been the excuse for longtime anti-gun litigators to make yet another pilgrimage to the Brooklyn courtroom of federal judge Jack Weinstein, who’s considered far more sympathetic to their cause than most of his colleagues (Tom Hayes, “Ex-Lobbyist to Testify for Gun Foes in Federal Trial”, AP/Law.com, Mar. 21). Jacob Sullum comments on the resulting trial set to begin today (“Jack B. Trick”, syndicated/Reason Online, Mar. 21), as does Eugene Volokh, who points out that the arguments for holding gun manufacturers liable would, if taken seriously, also lead to findings of liability against liquor manufacturers for “foreseeable misuse” of their wares — not that some ambitious lawyers wouldn’t like to do that too (Volokh Conspiracy blog, archive link not working, scroll to Mar. 23). The NAACP case seeks injunctive relief; per the AP, above, Judge Weinstein “has decided the jury will play only an ‘advisory role,’ leaving himself to make the final determination on liability and remedy.” For our earlier coverage of the suit, click here. See also “Off Target: Anti-gunners again take aim at manufacturers”, (editorial), McAllen (Tex.) Monitor, Mar. 21; and Hunting and Shooting Sports Heritage Fund site (& welcome Kausfiles readers). Updated to include correct HSSHF link (DURABLE LINK)

March 21-23 – “Lawyers find gold mine in Phila. pension cases”. Philadelphia Inquirer exposes how the city’s municipal pension funds enlisted as the complaisant clients of two prominent class action law firms, Berger & Montague and Barrack, Rodos & Bacine, which between 1996 and 2002 scooped up $19 million in fees representing the city in securities litigation. Then-Mayor Ed Rendell green-lighted the suits, and also happens to have received $460,000 in contributions from the lawyers since 1990. “‘The truth is, there was just a bounty hunter prowling the security industry, picking things and putting our names on it,’ said Joseph Herkness, the pension fund’s former director. ‘We were told, basically, to sign these things.'” “It was an opportunity to make money for the city without any risk,” claims Rendell, who is now Pennsylvania’s governor. But perhaps not quite so much money as if the city had driven a harder bargain: “Funds in Florida, Connecticut, Wisconsin, and New York City have trimmed millions off legal fees by seeking bids and setting fees in advance,” but not Philadelphia, the paper reported. As reported earlier (see Jan. 31) the FBI is investigating the actions of city officials in hiring the firms and resisting a judge’s efforts to encourage competitive bidding. (Joseph Tanfani and Craig R. McCoy, Philadelphia Inquirer, Mar. 16; “Lawyer’s responses scrutinized”, Feb. 14). Name partner Leonard Barrack of Barrack, Rodos, a big-league political donor, served as finance chairman for the Democratic National Committee under President Clinton (Washington Post, Jan. 12, 1999); he has said his firm is cooperating with the FBI probe. (DURABLE LINK)

March 21-23 – More notices for The Rule of Lawyers. Free-Market.net, one of the major libertarian sites, names our author’s new book “Freedom Book of the Month”, with reviewer Sunni Maravillosa calling it “clear, compelling” and “very important” and saying its “revelations will likely astonish most people who aren’t intimately acquainted with the American legal system” (March). In a review for the Indianapolis Star, reviewer Peter J. Pitts applauds the book as “insightful and frightening” (“Lawyers get rich; we get a warped idea of blame”, Mar. 15). And in American Hunter and its sister publications (American Rifleman, etc.), National Rifle Association Executive Vice President Wayne LaPierre uses his monthly column to call NRA members’ attention to the continuing outrage of the municipal gun suits and to The Rule of Lawyers in particular (April, not online). If you haven’t ordered your copy yet, what are you waiting for? (DURABLE LINK)