Small v. Lorillard Tobacco Co.

Phyllis Small and other cigarette smokers (smokers) (plaintiffs) brought related putative class-action suits against Lorillard Tobacco Company, Inc. and others (collectively, tobacco companies) (defendants). The smokers alleged that the tobacco companies engaged in consumer fraud by lying about nicotine’s addictiveness. The smokers sought to recover the money they allegedly were defrauded into spending on cigarettes; the smokers did not seek damages regarding any negative health effects they suffered due to smoking. The supreme court certified two classes in each action: (1) a damages class comprised of New York residents who bought and smoked cigarettes from the tobacco companies since June 19, 1980, and (2) an injunction class comprised of persons who bought cigarettes from the tobacco companies in New York. Each class exceeded one million people. Small and the other class representatives testified at their depositions that they could not quit smoking because they were addicted to nicotine. The tobacco companies appealed, arguing, among other things, that class certification was improper because individual facts predominated over common questions. Specifically, the tobacco companies contended that each smoker would have to show that he was addicted to nicotine and that he justifiably relied on the tobacco companies’ alleged false statements notwithstanding the wealth of publicly available information about nicotine’s addictiveness. The smokers responded that smoker-specific issues could be decided at a later phase in the litigation, after the tobacco companies’ liabilities on common issues were established.