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New York Federal Court Considers Defense Arguments Against Certification Of Class Action Against Tobacco Companies

Melanie Warner and Colin Moynihan report a New York federal court is considering whether to certify as a class action a federal RICO (Racketeer Influenced Corrupt Organizations Act) lawsuit that alleges tobacco companies “deceived smokers for years about the safety of light cigarettes” by making smokers think that they were “safer or less addicting.” Defense attorneys strenuously opposed the motion, reportedly arguing differences in the reasons people smoke – such as “that many people smoked light cigarettes because they liked the taste, not for health reasons or as part of an attempt to quit smoking” – and differences in the ways people smoked rendered the case unsuitable for treatment as a class action. Warner and Moynihan state that the federal court questioned plaintiffs’ attorneys about the size of the class (which plaintiffs’ lawyers estimate to be in the tens of millions given that the sale of light cigarettes accounts for 45% of the market) and the method by which they estimated damages to be in excess of $20 billion.

While many similar cases have proved unsuccessful, the New York federal judge will be considering the motion in the wake of the detailed 1,600-page opinion last month by District of Columbia federal judge Gladys Kessler, “who found that cigarette companies engaged in decades of fraud and racketeering, including misleading smokers and concealing information about the health risks of light cigarettes.” The article describes Judge Kessler’s opinion as “a searing indictment of conduct by tobacco companies over the last 40 years.”

The article by Melanie Warner and Colin Moynihan, entitled “Judge Weighs New Trial Against Tobacco Companies,” may be found in Section C of the September 14, 2006 edition of the New York Times.