A complex suit to certify
This type of action enables a group of people (the class) to bring jointly a single claim where they allege that there are common issues which affect them all. A few examples of these cases are described below.
Class actions by hundreds or even thousands of plaintiffs are permitted in the USA, and a limited number of jursidictions elsewhere in the world. Even in the USA, however, they are only appropriate to very specific situations or single events where common issues predominate, such as an air crash.
Plaintiffs seeking class certification in the US must show that common questions of law or fact predominate and that a class action is superior to other methods of adjudication. Companies in the US tobacco industry are named as defendants in a number of class actions, which are being vigorously defended.
If a judge certifies a class, the risks to defendants are magnified because the outcome of the case depends on a jury verdict that may cover many people and may include a sum for punitive damages.
However, US federal courts and most state courts have found that in smoking and health litigation, the common issues that need to predominate over individual issues for a class action do not exist. In smoking and health personal injury cases, it is issues relating to each individual smoker that predominate.
Cases turn on individual issues relating to facts, such as how much and for how long a person smoked, the disease a person has, the individual's awareness of the risks of smoking, attempts to quit, the plaintiff's reliance on tobacco industry advertising and on many other individual matters.
This is why the vast majority of tobacco class actions on smoking and health issues have been dismissed in the US as being unsuitable for class action treatment and the decertification of the Engle class action may mark the beginning of their end.
Engle is a US class action representing 700,000 citizens in Florida, alleging industry fraud and conspiracy to cover up the health effects of smoking. In 2000, a verdict of compensatory and punitive damages running into billions of dollars was awarded against the defendants.
This decision was appealed and a judgment from the Florida Supreme Court in July 2006 overturned the US$145 billion punitive damages award but upheld compensatory damages awards amounting to US$6.8 million.
The court also decertified the case, meaning that it will no longer be treated as a class action and instead will proceed as a series of individual actions. In October 2007, the defendants sought permission to appeal this final point to the US Supreme Court, however, this was denied allowing the individual actions to proceed.
Schwab was a US class action that challenges the practices of tobacco companies in the US with respect to marketing, advertising, promotion and sale of 'light' cigarettes.
The plaintiffs in this case sought certification of a class of all US residents who purchased 'light' cigarettes manufactured by the defendants and were granted this by the court in September 2006. However, in November 2006, the Second Circuit Court of Appeals granted the defendants a motion to stay the district court proceedings and gave them leave to appeal the class certification order.
In April 2008, certification was overturned on a finding that the issues of reliance, injury and causation predominated over any common issue, which meant the case was unsuitable for class treatment.
Broin was a US class action brought against our then-subsidiary Brown & Williamson and other US tobacco manufacturers on behalf of airline flight attendants allegedly injured by exposure to second-hand tobacco smoke during their employment.
This suit was settled in 1997. No payments were made and under the settlement individual members of the class were able to bring their own individual cases, but not to claim any punitive damages.
There are also class actions ongoing in Canada, notably Blais and Létourneau in Québec. On February 21 2005, Justice Pierre Jasmin certified the two class actions, brought on behalf of a large number of residents of Québec against tobacco company defendants. The plaintiffs are claiming damages as a result of addiction to tobacco products and smoking-related illnesses.
In British Columbia a class action has been brought in the Supreme Court by individuals who purchased 'light' and 'mild' cigarettes. The class of plaintiffs, led by Kenneth Knight, alleges that the defendant engaged in “deceptive trade practices” in the marketing of its 'light' cigarette brands.
In June 2009, one law firm separately filed four class actions in Saskatchewan, Nova Scotia, Manitoba and Alberta.
All seven Canadian cases remain live and are currently being vigorously defended before the courts.