Small v. Lorillard Tobacco Co.

Decision Date26 October 1999
Citation94 N.Y.2d 43,698 N.Y.S.2d 615,720 N.E.2d 892
PartiesPHYLLIS SMALL et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v. LORILLARD TOBACCO COMPANY, INC., et al., Respondents, et al., Defendants. CATHERINE ZITO et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v. AMERICAN TOBACCO COMPANY, INC., et al., Respondents, et al., Defendants. SHARLENE HOBERMAN et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION et al., Respondents, et al., Defendants. ROSE FROSINA et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v. PHILIP MORRIS, INC., et al., Respondents, et al., Defendants. MARY A. HOSKINS, as Executrix of EDWIN P. HOSKINS, Deceased, Individually and on Behalf of All Others Similarly Situated, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY et al., Respondents, et al., Defendants.
CourtNew York Court of Appeals Court of Appeals

94 N.Y.2d 43
720 N.E.2d 892
698 N.Y.S.2d 615

PHYLLIS SMALL et al., Individually and on Behalf of All Others Similarly Situated, Appellants,
v.
LORILLARD TOBACCO COMPANY, INC., et al., Respondents, et al., Defendants.
CATHERINE ZITO et al., Individually and on Behalf of All Others Similarly Situated, Appellants,
v.
AMERICAN TOBACCO COMPANY, INC., et al., Respondents, et al., Defendants.
SHARLENE HOBERMAN et al., Individually and on Behalf of All Others Similarly Situated, Appellants,
v.
BROWN & WILLIAMSON TOBACCO CORPORATION et al., Respondents, et al., Defendants.
ROSE FROSINA et al., Individually and on Behalf of All Others Similarly Situated, Appellants,
v.
PHILIP MORRIS, INC., et al., Respondents, et al., Defendants.
MARY A. HOSKINS, as Executrix of EDWIN P. HOSKINS, Deceased, Individually and on Behalf of All Others Similarly Situated, Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY et al., Respondents, et al., Defendants

Court of Appeals of the State of New York.

Argued September 14, 1999.

Decided October 26, 1999.


94 N.Y.2d 44
94 N.Y.2d 45
94 N.Y.2d 46
Goodkind Labaton Rudoff & Sucharow, L. L. P., New York City (Martis Ann Brachtl and Louis Gottlieb of counsel), and Henry Monaghan for appellants

94 N.Y.2d 47
Shook, Hardy, Bacon, L. L. P. (Gary R. Long and John K. Sherk, III, of the Missouri Bar, admitted pro hac vice, of counsel), Greenberg Traurig, New York City (Alan Mansfield, Robert J. Kirshenberg and Stephen Saxl of counsel), Deichert Price & Rhoads; Jones, Day, Reavis & Pogue (Harold K. Gordon of counsel) and Chadbourne & Parke, L. L. P., for Lorillard Tobacco Company and others, respondents

94 N.Y.2d 48
Simpson Thacher & Bartlett, New York City (Roy L. Reardon, Mary Elizabeth McGarry and Joseph M. McLaughlin of counsel), for B.A.T. Industries P. L. C., respondent

94 N.Y.2d 49
Debevoise & Plimpton, New York City (Harry Zirlin and Steven Klugman of counsel), for Council for Tobacco Research-U.S.A., Inc., respondent.

Seward & Kissel, L. L. P., New York City (Jack Yoskowitz and Anthony Mansfield of counsel), for Tobacco Institute, Inc., respondent.

94 N.Y.2d 50
Eliot Spitzer, Attorney General, New York City (Deon J. Nossel and Preeta D. Bansal of counsel), pro se, amicus curiae.

Judges BELLACOSA, SMITH, CIPARICK, BRACKEN,6 CARDONA6 and LAWTON6 concur; Chief Judge KAYE and Judges LEVINE and ROSENBLATT taking no part.

OPINION OF THE COURT

WESLEY, J.

These consolidated appeals encompass five proposed class action suits. They are brought by plaintiffs alleging that defendants individually and collectively deceived them about the addictive properties of cigarettes and fraudulently induced them to purchase and continue to smoke cigarettes.

The trial court determined that class certification was a statutorily authorized method to adjudicate the multiplicity of claims. After the court found that plaintiffs pleaded valid causes of action against defendants and that their claims were not preempted by the Federal Cigarette Labeling and Advertising Act (15 USC § 1331 et seq.), it denied without prejudice defendant B.A.T. Industries' motion to dismiss for lack of personal jurisdiction.1

The Appellate Division decertified the classes. It also concluded that certain claims were preempted by the Federal Act, and dismissed the remaining causes of action. In granting

94 N.Y.2d 51
leave to appeal, the Appellate Division certified the usual question to us: "Was the order of this Court, which reversed the orders of the Supreme Court, properly made?" We answer yes, and affirm the Appellate Division order.

I.

Five class actions on behalf of New York consumers were filed against defendant tobacco companies and two other entities, the Council for Tobacco Research and the Tobacco Institute. In each of the suits, plaintiffs sought to represent a class of New York residents who, on or after June 19, 1980,2 became or continued to be nicotine dependent as a result of buying and smoking cigarettes in New York that were manufactured by defendants.

Plaintiffs allege that defendants used deceptive commercial practices to sell their cigarettes to New Yorkers and that they would not have bought these cigarettes had they known that nicotine is an addictive drug; that the tobacco companies controlled the level of nicotine in their cigarettes to cause or maintain nicotine addiction; and, that the companies secretly used chemicals to enhance the addictive propensities of nicotine. Plaintiffs also assert that the companies suppressed research indicating that nicotine is addictive. They seek only the reimbursement of the purchase cost of cigarettes that they claim they would not have bought, but for defendants' fraudulent and deceptive practices.3

In each case, plaintiffs' lawyers moved to certify the class of addicted smokers alleged in the various complaints. In considering the requirements for class certification pursuant to CPLR 901 (a), the trial court determined that "a claim which turns on proof of actual addiction would involve far too many

94 N.Y.2d 52
subjective factors" (Small v Lorillard Tobacco Co., 175 Misc 2d 294, 300). The court concluded that issues regarding addiction are not part of the claims presented because "the central issue is whether plaintiffs and the class members can recoup the money they spent in a transaction that was purportedly riddled with fraudulent activities" (id., at 301). The court sua sponte eliminated the need to prove an individual's nicotine addiction; redefined the proposed class definition to include plaintiffs and potential class members who purchased defendants' cigarettes while the defendants were allegedly engaging in a pattern of fraudulent activities; and, as redefined, certified the classes. Plaintiffs have accepted the court-modified class definition for purposes of the litigation and their appeal to this Court.

In a separate order, the trial court also determined that plaintiffs pleaded fraud with sufficient particularity and that their claims were not preempted by the Federal Labeling Act (Small v Lorillard Tobacco Co., 176 Misc 2d 413). The court also denied without prejudice defendant B.A.T.'s motion to dismiss for lack of personal jurisdiction.

The Appellate Division reversed both orders on a composite appeal of the entire matter (Small v Lorillard Tobacco Co., 252 AD2d 1). After analyzing the requirements of CPLR 901 (a), the Court held that class certification was not justified under the statutory criteria. It also determined that plaintiffs' claims were preempted by the Federal statute, insofar as they allege fraudulent concealment and failure to warn of the dangers of nicotine. While it concluded that plaintiffs' claims alleging affirmative misrepresentation were not preempted by the Federal statute, the Court nonetheless dismissed those claims because they were not...

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