Philip Morris Cos. Inc. v. Miner

2015 Ark. 73, 462 S.W.3d 313, 2015 Ark. LEXIS 83
CourtSupreme Court of Arkansas
DecidedFebruary 26, 2015
DocketCV-14-193
StatusPublished
Cited by35 cases

This text of 2015 Ark. 73 (Philip Morris Cos. Inc. v. Miner) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philip Morris Cos. Inc. v. Miner, 2015 Ark. 73, 462 S.W.3d 313, 2015 Ark. LEXIS 83 (Ark. 2015).

Opinions

RHONDA K. WOOD, Associate Justice

I,Class certification is proper if six, rule-based prerequisites are satisfied. Two of those prerequisites are at issue in this case: predominance and superiority. Another issue is whether the elass is ascertainable. Here, the class plaintiffs alleged that Philip Morris deceived them by advertising Marlboro Lights as being safer and having less tar and nicotine than other cigarettes. The circuit court certified the plaintiffs’ class action against Philip Morris based on the Arkansas Deceptive Trade Practices Act; Philip Morris appeals the class certification. Because common issues predominate, because the class-action mechanism is a superior method to adjudicate at least some parts of the plaintiffs’ cause of action, and because the class is ascertainable, we affirm the circuit court’s order certifying the class.

|¾1. Procedural History

Wayne Miner and James Easley filed a class-action complaint against Philip Morris Companies Inc. and Philip Morris Incorporated. Plaintiffs alleged, on their behalf and for others similarly situated, that Philip Morris violated the Arkansas Deceptive Trade Practices Act (ADTPA)1 by falsely representing that its Marlboro Lights cigarettes were healthier and contained less tar and nicotine than regular cigarettes. Specifically, plaintiffs allege that Philip Morris violated the ADTPA in the following ways:

• Falsely representing that Lights cigarettes delivered lowered levels of tar and nicotine and were less harmful than regular cigarettes;
• Describing the product as “Light” and having “lowered tar and nicotine” when Lights did not, in fact, lower the tar and nicotine delivered to the consumer;
• Intentionally manipulating the design and content of Lights in order to maximize nicotine and tar delivery when deceptively claiming lowered tar and nicotine; and
• Using techniques that purportedly reduce machine-measured levels of Lights’ tar and nicotine content while actually increasing harmful biological effects, like specific constituent toxicity and mutagenicity.

Plaintiffs argued that the circuit court should certify a class to bring the ADTPA claim against Philip Morris. After a hearing, the circuit court agreed with plaintiffs and certified the following class:

All persons who purchased Defendants’ Marlboro Light [or Ultra Light] cigarettes in Arkansas for personal consumption from November 1, 1971, through June 22, 2010. Excluded from the Class are Defendants, any parents, subsidiary, affiliate, or controlled person of Defendants, as well as the officers, directors, agents, servants, or employees of Defendants, and the immediate family members of such persons.

|3The court concluded, inter alia, that common issues among all class members predominated over any individual issues and that a class action was a superior method of resolving the claim. Philip Morris has brought this interlocutory appeal from the circuit court’s order certifying the class. See Ark. R. App. P. — Civ. 2(a)(9) (2014).

II. Standard of Review and, Applicable Law

The certification of a class action is governed by Arkansas Rule of Civil Procedure 23 (2014). Circuit courts have broad discretion regarding class certification, and we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. Union Pac. R.R. v. Vickers, 2009 Ark. 259, 308 S.W.3d 573. When reviewing a class-certification order, we focus on the evidence contained in the record to determine whether it supports the circuit court’s conclusion regarding certification. Asbury Auto. Grp., Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006). Our focus is “whether the requirements of Rule 23 are met” and “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.” Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004). Stated another way, we “will not delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met.” Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 116, 205 S.W.3d 127, 130 (2005).

Rule 23 imposes six prerequisites for certification of a class-action complaint: (1) numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) superiority. Ark. R. Civ. P. 23(a), (b); Asbury Auto., supra; Lenders Title Co. v. Chandler, 358 Ark. 66, 73, 186 S.W.3d 695, 699 (2004). Philip Morris has not challenged the circuit court’s ruling regarding numerosity, commonality, typicality, and adequacy, so the only prerequisites at issue are predominance and superiority.2

III. Commonality and Predominance

Although Philip Morris did not challenge the court’s finding of commonality in its points on appeal, we discuss commonality here because it is intertwined with predominance. “One or more members of a class may sue or be sued as representative parties on behalf of all only if ... (2) there are questions of law or fact common to the class.” Ark. R. Civ. P. 23(a). Citing to a leading treatise, we have noted that the commonality requirement is satisfied when a single common issue is present among the class members:

Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... that there need be only a single issue common to all members of the class.... When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.

Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., 347 Ark. 89, 96, 60 S.W.3d 428, 432 (2001) (quoting Newberg, Class Actions § 3.10 (3d ed. 1993)). The circuit court must determine what elements in a cause of action are common questions for the purpose of | ¡¡certifying a class. Id. “The requirement is not difficult to meet.” David Newbern et al., Arkansas Civil Prac. & Proc. § 8:3 (5th ed. 2010).

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Bluebook (online)
2015 Ark. 73, 462 S.W.3d 313, 2015 Ark. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philip-morris-cos-inc-v-miner-ark-2015.