Media Statement: Illinois Supreme Court Rules on Light Tobacco Litigation

Published August 24, 2007

(Chicago, Illinois – August 24, 2007) In a 4-2 ruling, the Illinois Supreme Court on August 22 refused to reopen a lawsuit against Philip Morris USA over its light cigarettes.

The following background and comments on the state supreme court’s decision are from Maureen Martin, The Heartland Institute’s senior fellow for legal affairs. You may quote directly from this statement or contact Martin directly at [email protected].

The Illinois Supreme Court Friday sounded the death knell–again–in consumer fraud litigation over “light” and “low tar” tobacco products, proving it takes two tolls of the bell before the plaintiffs’ lawyers can accept the demise of their $10.1 billion judgment against Phillip Morris.

The state supreme court in 2005 originally reversed the judgment entered by Madison County Circuit Court Judge Nicholas G. Byron in a class-action case, Price v. Phillip Morris USA Inc. At that time, the court held the Illinois consumer fraud statute immunizes defendants from consumer fraud suits if their use of advertising terms was authorized by the Federal Trade Commission.

Following an exhaustive review of 50 years of regulatory history before the Federal Trade Commission culminating in a consent decree authorizing use of the terms “light” and “low tar,” the state court concluded the FTC had authorized use of these terms. In November 2006, the U.S. Supreme Court refused to disturb this ruling. The case was remanded to Judge Byron’s court, where he entered judgment in favor of Phillip Morris.

Early in 2007, however, the class-action plaintiffs asked Judge Byron for a new trial in the case, arguing this was required due to newly discovered, previously unavailable evidence. The “evidence” consisted of statements by the U.S. Solicitor General in a subsequent U.S. Supreme Court case that “The FTC has never promulgated official regulatory definitions of terms such as ‘light’ or ‘low tar.'” But this is not evidence. It is fact–or, rather, the lack of fact. No one in the Price case ever contended these terms had regulatory definitions. And the lack of such definitions can hardly be newly discovered since the regulatory history of these terms spans the past 50 years.

Judge Byron must have recognized he was on thin ice. Rather than ruling on the plaintiffs’ motion, he asked the Illinois Supreme Court to tell him whether he could rule on it. Phillip Morris, in turn, asked the Illinois Supreme Court to exercise its supervisory authority over Judge Byron, which is what the court did. Deny the motion, the court told Judge Byron in a 4-2 opinion.

Judge Byron had a dilemma. If he denied the motion for a new trial, he would disappoint his campaign contributors in the plaintiffs’ trial bar by depriving them of their last chance at a $10.1 billion recovery. But the grounds for the motion were flimsy at best, so if he granted it, he risked reversal or worse. Asking the Illinois Supreme Court for instruction must have seemed a clever way out for the judge.

The majority of the Illinois Supreme Court saw through Judge Byron’s procedural ploy, however. One can only hope this dead case stays dead.