Price v. Philip Morris, Inc.

Decision Date04 November 2015
Docket NumberNo. 117687.,117687.
Citation43 N.E.3d 53
PartiesSharon PRICE et al., Appellees, v. PHILIP MORRIS, INC., Appellant.
CourtIllinois Supreme Court

James R. Thompson, George C. Lombardi, and Matthew R. Carter, Winston & Strawn LLP, Michele Odorizzi, Mayer Brown LLP, and Kevin M. Forde and Joanne R. Driscoll, Forde Law Offices LLP, Chicago, Larry Hepler and Beth Bauer, HeplerBroom LLC, Edwardsville and Lisa S. Blatt and Sarah M. Harris, Arnold & Porter LLP, Washington, DC, for appellant.

Joseph A. Power, Jr., and Todd A. Smith, of Power Rogers & Smith, Chicago, and George A. Zeles, Maximillian C. Gibbons and Matthew C. Davies, Chicago, and Stephen M. Tillery, Robert L. King and Aaron M. Zigler, St. Louis, Missouri, Korein Tillery, Michael J. Brickman and Nina Fields Britt, Richardson, Patrick Westbrook & Brickman, Charleston, South Carolina, and David C. Frederick and Joshua D. Branson, Kellogg, Huber, Hansen, Todd, Evans & Figel, Washington, D.C., for appellees.

Michael Resis and Britta Sahlstrom, SmithAmundsen, LLC, Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

Stephanie A. Scharf, Sarah R. Marmor and George D. Sax, Scharf Banks Marmor LLC, Chicago (Hugh F. Young, Jr., Reston, Virginia, of counsel) for amicus curiae Product Liability Advisory Council, Inc.

Patricia C. Bobb, Chicago, for amicus curiae Economic Scholars.

Joel J. Africk and Todd D. Fraley, Chicago, for amici curiae Public Health Associations et al.

Bruce Robert Pfaff, Pfaff, Gill & Ports, Ltd., Chicago, for amicus curiae Cooney & Conway.

John B. Kralovec, Kralovec, Jambois & Schwartz, Chicago, for amici curiae Law Professors of Civil Procedure.

OPINION

Justice BURKE delivered the judgment of the court, with opinion.

¶ 1 The plaintiffs, Sharon Price and Michael Fruth, as individuals and on behalf of a class of similarly situated individuals, filed a petition in the circuit court of Madison County seeking relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012) ). The circuit court denied the petition on the merits and the appellate court reversed (2014 IL App (5th) 130017, 380 Ill.Dec. 928, 9 N.E.3d 599 ).

¶ 2 Because plaintiffs' petition sought vacatur of the judgment rendered by this court in Price v. Philip Morris, Inc., 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1 (2005), we hold that both the circuit court, and the appellate court on review of the circuit court's judgment, erred in considering the merits of plaintiffs' petition. Section 2–1401 does not authorize the circuit court to vacate the judgment of a reviewing court. Instead, a litigant seeking to vacate the judgment of a reviewing court after the rehearing period has expired and the mandate has issued, must file a motion to recall the mandate in the reviewing court which rendered the contested judgment. We therefore vacate the judgments of the lower courts and dismiss this cause of action without prejudice to plaintiffs to file a motion to recall the mandate in this court. We express no opinion on the merits of such a motion, should one be filed at a future date.

¶ 3 BACKGROUND

¶ 4 In February, 2000, plaintiffs filed a class action lawsuit in the circuit court of Madison County against the defendant, Philip Morris, Inc. The suit alleged that defendant's use of the terms “lights” and “lowered tar and nicotine” on the packaging and in the marketing of its Marlboro Lights and Cambridge Lights cigarettes (Lights) violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)), and the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 1998)). Plaintiffs alleged that, ‘when smoked under actual conditions' by consumers, Lights failed to provide ‘lowered tar and nicotine’ as compared to conventional cigarettes and, thus, the descriptors used by defendant were deceptive. Price, 219 Ill.2d at 209–11, 302 Ill.Dec. 1, 848 N.E.2d 1. Plaintiffs did not seek damages for personal injuries, if any, resulting from their consumption of Lights. Instead, they sought only economic damages, based on their contention that they did not receive what defendant told them they would receive when they purchased Lights, i.e., a cigarette that delivered less tar and nicotine than conventional cigarettes and that was, therefore, safer. Id. at 209, 302 Ill.Dec. 1, 848 N.E.2d 1.

¶ 5 Defendant raised numerous defenses in response to plaintiffs' complaint. Relevant here, defendant argued that plaintiffs' complaint was barred by section 10b(1) of the Consumer Fraud Act (815 ILCS 505/10b(1) (West 1998)). This provision states that nothing in the Consumer Fraud Act shall apply to [a]ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.” Id. Relying on various exhibits as well as expert testimony, defendant asserted that its use of the terms “light” and “lowered tar and nicotine” complied with policies promulgated by the Federal Trade Commission (FTC) and, thus, plaintiffs' complaint should not go forward.

¶ 6 The circuit court rejected defendant's proffered defenses, including its defense based on section 10b(1). The court certified a class consisting of all purchasers of Lights in Illinois from 1971 to 2001, approximately 1.14 million people. On March 21, 2003, following a bench trial, the circuit court rendered judgment in favor of plaintiffs and awarded compensatory and punitive damages totalling $10.1 billion.

¶ 7 This court granted direct review under Supreme Court Rule 302(b) ( Ill.S.Ct. R. 302(b) (eff. Oct. 4, 2011)), and, on December 15, 2005, reversed the judgment of the circuit court. In its opinion, this court concluded that the FTC had “specifically authorized” defendant's use of the descriptors “light” and “lowered tar and nicotine,” thereby barring plaintiffs' complaint. In reaching this conclusion, the court first explained that “the FTC's informal regulatory activity, including the use of consent orders, comes within the scope of section 10b(1)'s requirement that the specific authorization be made ‘by laws administered by’ a state or federal regulatory body.” Price, 219 Ill.2d at 258, 302 Ill.Dec. 1, 848 N.E.2d 1. This conclusion was consistent, the court stated, with the testimony of defendant's expert witness, Dr. John Peterman, a former FTC bureau director, who testified that “the FTC uses consent orders to provide guidance to the entire cigarette industry.” Id.

¶ 8 This court then found that, in a 1971 consent order, In re American Brands, Inc., 79 F.T.C. 255 (1971) :

“the FTC could, and did, specifically authorize all United States tobacco companies to utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying terms, such as ‘light,’ so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette.” Price, 219 Ill.2d at 265, 302 Ill.Dec. 1, 848 N.E.2d 1.

¶ 9 The court also found that the FTC reiterated this authorization in a 1995 consent order, In re American Tobacco Co., 119 F.T.C. 3 (1995). This order, the court stated, “forbade the representation of tar ratings as ‘a numerical multiple, fraction or ratio of the tar or nicotine ratings of any other brand,’ but specifically allowed the ‘express or implied representation’ that a cigarette is “low,” “lower,” or “lowest” in tar and/or nicotine.’ Price, 219 Ill.2d at 265–66, 302 Ill.Dec. 1, 848 N.E.2d 1. Accordingly, this court held that plaintiffs' claim was “barred by section 10b(1) of the Consumer Fraud Act.” Id. at 266, 302 Ill.Dec. 1, 848 N.E.2d 1.

¶ 10 Although this ruling resolved the appeal, the court also noted that it had “reservations” about the “existence of individual issues” concerning deception, causation and injury “that might make class certification inappropriate,” as well as “grave reservations” about plaintiffs' theory of damages in the case. Id. at 268–71, 302 Ill.Dec. 1, 848 N.E.2d 1. The court did not, however, rule on these issues. The court concluded its opinion by stating that the judgment of the circuit court was reversed and that the cause was remanded “with instructions to dismiss pursuant to section 10b(1) of the Consumer Fraud Act.” Id. at 274, 302 Ill.Dec. 1, 848 N.E.2d 1.

¶ 11 Justice Karmeier, joined by Justice Fitzgerald, specially concurred, finding that plaintiffs' consumer fraud claim failed for the “additional and more basic reason” that plaintiffs had “failed to establish that they sustained actual damages.” Id. at 275, 302 Ill.Dec. 1, 848 N.E.2d 1 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). Justice Freeman and Justice Kilbride each dissented from the judgment of the court. The dissenting justices rejected the court's conclusion that plaintiffs' complaint was barred by section 10b(1) as well as the special concurrence's conclusion that plaintiffs had failed to establish actual damages. Id. at 285–337, 302 Ill.Dec. 1, 848 N.E.2d 1.

¶ 12 The court stayed its mandate while plaintiffs petitioned the United States Supreme Court for writ of certiorari. The mandate was issued by this court on December 5, 2006, after certiorari was denied. On December 18, 2006, the circuit court dismissed plaintiffs' complaint with prejudice in accordance with this court's mandate.

¶ 13 On December 18, 2008, plaintiffs commenced the present action by filing a petition for relief from judgment under section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012) ), in the circuit court of Madison County. As ultimately amended, plaintiffs' petition focused primarily on an amicus curiae brief that had been filed by the FTC in the United States Supreme Court case, Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). Plaintiffs alleged that, in this brief, which had been filed subsequent to the dismissal order in P...

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