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Marrone v. Philip Morris — Defense of Class Action Cases

Ohio Supreme Court Rejection of Class Action Against Tobacco Company of Limited Value to Class Action Defendants

On June 14, 2006, the Ohio Supreme Court issued an opinion reversing certification of a class action against a tobacco company for the allegedly “unfair, deceptive, and unconscionable practice[]” of labeling certain cigarettes as “light.” Marrone v. Philip Morris USA, Inc., ___ N.E.2d ___, 2006 WL 1584163 (Ohio 2006). While this victory has been widely reported in the press, it is of limited value to class action defendants.

Marrone turned entirely upon Ohio’s Consumer Sales Practices Act (CSPA), which prohibits unfair, deceptive and unconscionable practices in consumer sales transactions. However, alleged violations of CSPA may be brought as class actions only “if the violation is an act or practice that was declared to be deceptive or unconscionable by a rule adopted by the Attorney General before the consumer transaction on which the action is based, or if the violation is an act or practice that was determined by a court to violate the CSPA and the court’s decision was available for public inspection in accordance with R.C. 1345.05(A)(3) before the consumer transaction,” Slip Opn., ¶ 1.

The limited applicability of Marrone is evident from the following excerpt:

We must determine how similar the defendant’s conduct must be to the conduct that was previously determined to be deceptive in order for a consumer to qualify for class-action certification under R.C. 1345.09(B) for a violation of the CSPA. For the reasons that follow, we hold that a consumer may qualify for class-action certification under Ohio’s CSPA only if the defendant’s alleged violation of the Act is substantially similar to an act or practice previously declared to be deceptive by one of the methods identified in R.C. 1345.09(B). Because the plaintiffs’ claims in this case did not meet that standard, we reverse the judgment of the court of appeals.

Slip Opn., ¶ 2. Marrone is thus limited to a determination of what, under Ohio state law, satisfies the “substantially similar” requirement of R.C. 1345.09(B) so as to authorize a class action. In fact, the Court expressly stated that “plaintiffs may be entitled to pursue class-action relief,” but that “they failed to identify any prior rule or court decision that would entitle them to pursue CSPA relief under R.C. 1345.09(B).” Slip Opn., ¶ 30 (itaclis added).

The opinion does have an excellent discussion of the history and purpose behind cigarette tar and nicotine tests, Slip Opn., ¶¶ 26 et seq., and that discussion may prove useful to tobacco defendants in state and federal courts outside of Ohio.

Download PDF file of Marrone v. Philip Morris