Some Wins, Some Losses in Tobacco Class Action Suits

In November, this blog published an article about the ways in which class action lawsuits–cases in which a group of individuals (a class) may stand together against wrongdoing–have the ability to protect Americans from a variety of threats: discriminatory and predatory lending and insurance policies, invasion of privacy, racial and gender discrimination, and mortgage loan hikes. This list, however, leaves out one of the most valuable outcomes of class action suits–consumer protection.

As the civil justice blog ThePopTort points out, the American judicial system has dealt Big Tobacco a number of blows dating back decades: in 2006, a federal district court wrote that the tobacco industry–having known about the dangers of its products as early as 1964–still lied to individuals about the risks of smoking; a federal judge in 2012 mandated that the industry must admit in a series of advertisements that it misled consumers. But as smoking and chewing tobacco have faced strict regulation, the emerging electronic cigarette and vaporizer sectors have gone relatively unchecked.

According to the New York Times, more middle and high school students are smoking e-cigarettes than typical combustible cigarettes. Critics argue that such devices are easily purchased online by underage children and that the government should do more to ensure the legality of all tobacco-related transactions. ThePopTort notes that one possibility would be to file a class action lawsuit arguing that the relative safety of e-cigarettes has yet to be proven. They go on to indicate that only weeks ago the Arkansas Supreme Court allowed a similar case to proceed against Philip Morris. In a 6-1 decision, the justices decided that members of the class–those who purchased Marlboro Lights between 1971 and 2010–were entitled to refunds based on misleading marketing that implied the light cigarettes were less dangerous than other cigarettes.

But not all tobacco class action suits are allowed to proceed. In 2006, for example, the Florida Supreme Court dismissed a case against three tobacco companies worth $145 billion. This means that each of these hundreds of cases would have to be tried individually, leading to a massive strain on already underserved courts. This is a less obvious outcome of class action suits, but one that is important to note.

In 2005, Congress passed the Class Action Fairness Act (CAFA), which allows a defendant to “transfer state class actions into the smaller, already clogged federal court system.” Since this bill passed, “federal court judges have been unable to deal with the flood of new state cases, and as a result, have begun throwing out meritorious class action cases.”

Government regulators have shown their inability to oversee various industries–pharmaceuticals, auto manufacturing, and herbal supplements, to name a few. The dangers that these corporations pose to consumers was only revealed–in a few cases–through class action lawsuits, which makes them crucial in enforcing oversight measured against rule-breakers. As a recent report from the Center for Justice and Democracy puts it, without class actions, many citizens and small businesses “would be unable to recover stolen money, stop discrimination, hold large corporations accountable for wrongdoing or deter future misconduct.”