In September 2006, the federal district court for the Eastern District of New York certified a $200 billion national class action lawsuit made up of tens of millions of smokers of "light" cigarettes, alleging that health-conscious smokers relied on these terms to buy what they thought was a safer product. James Wilson discusses Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992 (E.D.N.Y. 2006) and its demonstration of how the class action mechanism is being used to seek recovery purely of economic damages and why many expect the Second Circuit Court of Appeals to reverse certification. Mr. Wilson writes:

[M]any expect that the Second Circuit Court of Appeals will reverse certification among other reasons, because the determination of whether a smoker bought “light” cigarettes due to health concerns or due to non-health reasons requires an individualized examination of each class member’s decision-making process. One of the requirements for certifying a class action is that common proof may be used to establish the claims. If individualized examination of proof is required, then a court will deny a request to certify a class. This type of case demonstrates the potential utility of Rule 23(c)(4) of the Federal Rules of Civil Procedure, which permits the certification of issue class or subclasses.

Access the complete commentary on lexis.com