Class-action status OK’d in tobacco suit

Pulaski County Circuit Judge Tim Fox on Friday formally granted class-action status to a deceptive-trade practices lawsuit against the manufacturer of Marlboro Lights cigarettes, a move that has the potential to create Arkansas’ largest plaintiffs pool ever, with possibly more than a million litigants.

Plaintiffs’ attorneys claim that tobacco company Philip Morris, now the tobacco division of Virginia-based Altria Group Inc., deliberately marketed the cigarettes as “safer, healthier and less addictive than regular cigarettes,” when in reality they were not, a fact that PhilipMorris knew, according to court filings.

“The plaintiffs’ allegations are that Marlboro Lights are exactly what the defendants designed them to be: a gold mine of a killing machine,” Fox wrote. “The plaintiffs’ allegations are that Marlboro Lights as promised were not Marlboro Lights as delivered. They allege they were promised and sold a ‘safer, healthier’ cigarette, and that Marlboro Lights are not a ‘safer, healthier’ cigarette.”

The plaintiffs’ attorneys want to force the cigarette manufacturer to repay affected customers the difference between the retail price of the cigarettes and whatthey are actually worth, once customers know the cigarettes are not as safe as the company led them to believe.

Plaintiffs will be everyone in Arkansas, aside from employees and relatives of the defendants, who bought Marlboro Lights or Ultra Lights from Nov. 1, 1971, when Lights first went on sale, until June 22, 2010, when a federal law went into effect barring advertising from describing cigarettes as light or mild.

Potential plaintiffs all sharecommon questions about Philip Morris’ operations, the judge wrote, such as whether the company represented Lights as healthier or safer than regular-brand cigarettes, whether those representations were true and whether customers got what the company had promised.

Fox’s two-page order, supplemented by nine pages of fact-finding and legal conclusions, codifies his ruling from a hearing last month. The written order and legal findings start the clock on the defendant’s appeal of the class-action certification to the Arkansas Supreme Court. That high-court reviewwill create another delay in the 10-year-old litigation, which has already been before the U.S. Supreme Court and 8th Circuit Court of Appeals on questions of jurisdiction.

The plaintiffs’ attorneys, the Thrash Law Firm and Carney Williams Bates Pulliam & Bowman firm of Little Rock, and seven out-of-state firms, estimate that plaintiffs would number in the hundreds of thousands, if not millions. The last 10 years worth of the class, from 2000 to 2010, is expected to number more than 162,200, court filings show.

The plaintiffs’ attorneys met the six-point test for class-actioncertification established under Rule 23 of the Arkansas Rules of Civil Procedure, Fox wrote. Plaintiffs claim the makers of Marlboro Lights deliberately deceived customers through advertising that claimed the brand carried a lower risk for consumers by delivering less nicotine and smoke.

Fox’s findings cited the company’s own research documents that showed that, as early as 1967, “heavy smokers of low nicotine cigarettes are in considerably more danger than smokers of high nicotine cigarettes even when tar and nicotine intake appear to be roughly equivalent.”