Tobacco and Smokers Litigation

Nationwide Punitive Damages Smokers Class Action

Lieff Cabraser Heimann & Bernstein, LLP serves as Lead Counsel in a nationwide smokers class action in the federal court for the Eastern District of New York, In re Simon II Litigation, No. 00-CV-5332 (JBW).

The Simon case alleges that over a course of decades the cigarette companies manufactured and sold cigarettes in a dangerous condition because the cigarettes were not accompanied with adequate warnings and the cigarette companies fraudulently denied and concealed from smokers the significant health risks, including nicotine addiction, of smoking.

Appellate Court Vacates Class Certification Order

The Second Circuit Court of Appeals in New York has vacated Judge Weinstein’s certification of a class of cigarette smokers.

On September 19, 2002, the Honorable Jack B. Weinstein, a judge in the federal court in Brooklyn, New York, issued an order certifying a class of cigarette smokers. The class consisted of:

All persons residing in the United States, or who were residents of the United States at the time of their deaths, who smoke or smoked Defendants’ cigarettes, and who were first diagnosed by a physician with one or more of the following diseases from April 9, 1993 through the date notice to the class is ordered disseminated: lung cancer; laryngeal cancer; lip cancer; tongue cancer; mouth cancer; esophageal cancer; kidney cancer; pancreatic cancer; bladder cancer; ischemic heart disease; cerebrovascular disease; aortic aneurysm; peripheral vascular disease; emphysema; chronic bronchitis; or, chronic obstructive pulmonary disease (also called chronic air flow obstruction).

This means that if you are a resident of the United States, or you are the legal representative of someone who was a resident of the United States at the time of their deaths, and you or the decedent you represent smoked defendants’ cigarettes, and you or the decedent were diagnosed by a physician with one of the diseases listed above at any time after April 9, 1993 until the present, you or the decedent were a member of the class certified by Judge Weinstein.

The court’s class certification order was limited to punitive damages only. Punitive damages are damages intended to punish a wrongdoer for its serious misconduct. The purpose of this case is to prove that the class as a whole (including you) is entitled to an award of punitive damages for the serious wrongful conduct of the cigarette companies.

The cigarette companies appealed Judge Weinstein’s class certification order to the United States Court of Appeals for the Second Circuit in New York City. All briefing was completed concerning the appeal, and oral argument took place on November 20, 2003. The cigarette companies asked the appellate court to reverse or vacate Judge Weinstein’s class certification order. We argued, on behalf of the certified class, that Judge Weinstein’s class certification order was appropriate and should be affirmed by the appellate court.

On May 6, 2005, the Court of Appeals "vacated" Judge Weinstein's class certification order. This means the that the Second Circuit has concluded that Judge Weinstein's certification of the punitive damages class was wrong under the law. Our request that all of the judges of the Second Circuit reconsider the rejection of Judge Weinstein's class certification order was denied on August 4, 2005. There is no longer a class.

District Court Enters Order of Dismissal

On February 6, 2006, U.S. District Court Judge Jack B. Weinstein dismissed the Simon case, and stayed the entry of judgment for 30 days. The Court ruled that if no further motion to stay the order of dismissal is received within 30 days, the Clerk of the Court shall enter a judgment for defendants. To read a copy of the Court's order of dismissal, click here.

Government Action Against the Tobacco Industry

Lieff Cabraser represented the Attorneys' General of Massachusetts, Illinois, Louisiana, Indiana, Rhode Island and New Hampshire and 18 cities and counties in California, including the City and County of San Francisco, the City of Los Angeles and the City of San Jose, in litigation against Philip Morris, R.J. Reynolds and other cigarette manufacturers. The suits were part of the $206 billion settlement announced in November 1998 between the tobacco industry and the states' attorney generals. In California alone, our clients will receive an estimated $12.5 billion over the next 25 years.

KEY FACT

Since the MSA was signed, tobacco usage in California has dropped significantly, by 60% from 2000 to 2002. Californians consume less than half the tobacco compared to the national average, and only 16% of Californians smoke.

The states, cities and counties sought both to recover the public costs of treating smoking-related diseases and to require the tobacco industry to undertake extensive modifications of its marketing and promotion activities in order to reduce teenage smoking. The marketing curbs, part of the Master Settlement Agreement ("MSA") with the tobacco industry, consist of bans on billboards, transit ads, cartoon characters, targeting of minors, youth access to free samples, and paid-for product placement in movies, TV shows, plays and concerts. Tobacco brand-name sponsorships are also limited.

On December 9, 1998, California Superior Court Judge Ronald S. Prager approved the final judgment between the State of California and the tobacco industry. The court found the "settlement is fair, just and proper, and will benefit all the citizens of the State of California.

Commenting one year after approval of the settlement, Owen Clements, Chief of Special Litigation for the San Francisco City Attorneys' Office, observed, "Just a few years ago, you'd see a dozen tobacco billboards en route to any airport, not to mention cigarette t-shirts and all sorts of products. Now they're vanishing. They're not a part of the cultural landscape anymore."

Government Lawsuits Under the MSA

On June 6, 2002, in a lawsuit filed by California Attorney General Bill Lockyer against R.J. Reynolds Tobacco Company for violating the MSA, California Superior Court Judge Ronald Prager found that R.J. Reynolds had sought to avoid losing market share through an aggressive ad campaign that exposed teens to its advertising to the same degree as adult smokers. The Court ordered R.J. Reynolds to change its marketing practices and fined the company $20 million. To read a copy of this Order (in Adobe Acrobat format), click here.

Project SCUM Marketing Campaign

In 1997 in the California tobacco litigation, Lieff Cabraser served document requests on R.J. Reynolds seeking their current marketing data for Red Kamel. After months of litigation, R.J. Reynolds finally produced the documents. Inside the scores of boxes of documents produced and reviewed was the Project SCUM document.

The document showed that R.J. Reynolds targeted San Francisco area gay and homeless communities for special marketing efforts in the mid-1990s. The plan was labeled "Project SCUM" for "Subculture Urban Marketing."

Not only is the document offensive because it reveals targeting of the homeless and gay communities, it also used the code words "rebellious" and "Generation X" which allegedly referred to youth targeting. In late 2002, the American Legacy Foundation launched a public awareness campaign concerning Project SCUM, and set up a website for the campaign: www.projectscum.org.

To read a copy of the Project SCUM document (in Adobe Acrobat format), click here.