Aspinall v. Philip Morris Companies, Inc.

• Decision Date: 05 April 2004
• Citation: 813 NE 2d 476,442 Mass. 381
• Parties: LORI ASPINALL & another v. PHILIP MORRIS COMPANIES, INC., & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

442 Mass. 381

813 NE 2d 476

LORI ASPINALL & another¹ v. PHILIP MORRIS COMPANIES, INC.,² & another.³

Supreme Court of Massachusetts, Suffolk.

April 5, 2004.

August 13, 2004.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Thomas V. Urmy, Jr. (Todd S. Heyman with him) for the plaintiffs.

Kenneth J. Parsigian (Paul E. Nemser & Michael J. Tuteur with him) for the defendants.

Evan Slavitt, for Washington Legal Foundation, amicus curiae, submitted a brief.

GREANEY, J.

The essential question presented by this appeal is whether the marketing of Marlboro Lights as "light" cigarettes that deliver "lowered tar and nicotine" may be challenged in a class action seeking damages, as deceptive conduct in a trade or business, in violation of G. L. c. 93A, §§ 2 and 9. The individual plaintiffs, smokers of Marlboro Lights, allege in their second amended complaint that Philip Morris Companies, Inc., and its subsidiary, Philip Morris, Inc., have engaged in practices prohibited by our consumer protection statute by misleading the public into believing that their product, Marlboro Lights, would deliver lower levels of tar and nicotine, when the defendant companies knew the truth to be otherwise and, in fact, intentionally designed the product so that most smokers of Marlboro Lights would receive as much, or more, tar and nicotine than if they had smoked regular cigarettes. The allegations, set forth below, are quite specific.⁴ The plaintiffs seek, on behalf of themselves and all other purchasers of Marlboro Lights in Massachusetts, actual damages or, in the alternative, statutory damages under G. L. c. 93A.⁵ The plaintiffs also allege that the defendants' "willful and knowing" conduct and bad faith refusal to respond to the plaintiffs' demand for relief entitles them to a statutory award of multiple damages.

The plaintiffs filed a class certification motion pursuant to G. L. c. 93A, § 9 (2), that portion of our consumer protection statute allowing persons who have been injured by an unfair or deceptive act or practice to pursue a class action "if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons."⁶ After a hearing, a judge in the Superior Court certified a class consisting of purchasers of Marlboro Lights in Massachusetts during the four years preceding the filing of the complaint.⁷ The defendants filed a petition under G. L. c. 231, § 118, first par., with a single justice of the Appeals Court, seeking interlocutory review of the certification order. The single justice decertified the class and granted the plaintiffs leave to appeal from her decision to a panel of the Appeals Court. We granted the plaintiffs' application for direct appellate review. For reasons that follow, we now affirm the order of the Superior Court judge granting class certification. We shall first set forth, in some detail, the facts alleged, then deal with two procedural issues, and finally decide the certification issue.⁸

1. The plaintiffs' second amended complaint alleges the following facts. Since 1971, the descriptor "Lights" and the words "LOWERED TAR AND NICOTINE" have appeared on every pack of Marlboro Lights sold in Massachusetts. "Light" cigarettes are generally defined as cigarettes containing between seven and fifteen milligrams of tar. The defendants have long known, however, that most smokers are likely to receive as much or more tar and nicotine from Marlboro Lights as they would receive from regular Marlboro (or other "full-flavored") cigarettes.⁹ (Careful attention should be paid to the latter footnote, and to the footnotes that follow in Part 1 of this opinion, as they set forth documented materials and other facts that bear on the defendants' level of knowledge with respect to the alleged lower tar and nicotine quality of Marlboro Lights and the defendants' approach to marketing the cigarettes based on that information.) The defendants in fact purposefully have designed Marlboro Lights to produce Federal Trade Commission smoking machine test (FTC test)¹⁰ results that enable, as a matter of Federal law, the defendants to promote their cigarettes to consumers as "lights" with "lower tar and nicotine." At the same time, the defendants took steps to ensure that Marlboro Lights would deliver to smokers amounts of tar and nicotine that are higher than those registered by the FTC test. The defendants achieved this through a variety of design modifications, including, but not limited to, the strategic placement of microscopic ventilation holes in or around cigarette filters;¹¹ the modification of tobacco blend and weight, rod length and circumference;¹² the use of reconstituted tobacco sheets or expanded tobacco;¹³ and the increase of smoke pH level¹⁴ through the use of chemical additives and processes such as ammoniation.¹⁵ The defendants conducted their own internal tests to ensure that the actual amounts of tar and nicotine delivered under normal use remained at higher levels than those registered by the FTC test. By marketing their cigarettes as "Marlboro Lights," and branding them with the label "LOWERED TAR AND NICOTINE," the defendants intended to create an impression in the minds of customers that the cigarettes were "healthier" than regular cigarettes, thereby promoting the illusion of decreased tar and nicotine deliveries, in full awareness that Marlboro Lights would (as they were designed to) continue to deliver addictive levels of tar and nicotine. According to the plaintiffs, the defendants exploited their knowledge of the shortcomings of the FTC test method for measuring tar and nicotine levels in Marlboro Lights as part of their strategy to continue to increase sales and market shares, while concealing this information from the consumers. The plaintiffs characterize the defendants' conduct as a "campaign of deception and omission on Massachusetts consumers which persists to this day."¹⁶

2. We next take up two procedural issues. The parties argue over the role of the single justice of the Appeals Court in considering the judge's order granting class certification. The plaintiffs contend that only a panel of the Appeals Court can rule on the merits of a class certification because an order by a single justice vacating class certification would (at least in a case like this) be tantamount to the single justice making a final determination of the case — a matter usually reserved to a panel. The defendants contend that a class certification order is simply an interlocutory order, like any other interlocutory order, that may be reviewed on its merits under G. L. c. 231, § 118, first par. The issue need not be decided. Both parties want the propriety of the certification order decided by an appellate panel. The single justice of the Appeals Court appropriately certified the correctness of her ruling to a panel of the Appeals Court, and, as noted, we granted direct appellate review. The matter, therefore, is properly before an appellate panel for disposition.

3. There is also disagreement between the parties over the order being reviewed — is it that of the motion judge or that of the single justice. The authority of the single justice on petitions arising under G. L. c. 231, § 118, first par., is "plenary, with the result that [the single justice's] order will be reviewed [by a panel] on appeal as if it were an identical order by the trial judge considering the matter in the first instance." Jet-Line Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988). See Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412 (1996); Thorn Transit Sys. Int'l, Ltd. v. Massachusetts Bay Transp. Auth., 40 Mass. App. Ct. 650, 652 (1996); Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 395 (1994); Demoulas v. Demoulas Super Mkts., Inc., 33 Mass. App. Ct. 939, 940 (1992). The essential legal question for the reviewing court will be "whether the single justice abused [her] discretion by entering an order without having a supportable basis for doing so." Id., quoting Highland Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 240 (1988). Answering that question, however, requires examination of the trial judge's order. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000) ("While the focus of the petition should be on whether the single justice of the Appeals Court erred, the resolution of that inquiry might require [a reviewing court] to look indirectly at the underlying order of the judge in the trial court, to see whether there was an abuse of discretion or error of law when evaluating the competing interests and issuing the [relevant] order . . ."). The single justice is not a fact finder and must accept any relevant facts found by the judge when those facts have support in the record. Considerable deference is also required on the part of the single justice to determinations by the judge, especially where those determinations involve an exercise of discretion. "In most cases, based on the deference normally accorded determinations by the judge who heard the matter in the first instance, the single justice will decline to act on an application for relief under G. L. c. 231, § 118, first par., that does not disclose clear error of law or abuse of discretion." Jet-Line Servs., Inc. v. Selectmen of Stoughton, supra. As to a certification order like the one before us, where the judge in the Superior Court has (as we shall subsequently discuss) broad discretion in making a determination, we examine the single justice's decision to determine whether it is legally correct (including whether discretion has been abused), bearing in mind that the Superior Court judge's order should ordinarily not be overturned if it is factually supported and unaffected by clear error of law. The analysis of whether the single justice has abused her discretion, therefore, requires examination of the...