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First Circuit Court of Appeals Rules Against Philip Morris in 'Lights' Class Action

Thursday, September 6, 2007 General News J E 4
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BOSTON, Sept. 5 On Friday, August 31, 2007, the FirstCircuit Court of Appeals reinstated a class action lawsuit brought by Maineresidents against Philip Morris by unanimously rejecting Philip Morris'argument that the claims were preempted by federal law. The case brought byMaine residents challenges the cigarette company's representations thatcertain brands of its cigarettes are "light" or have "lowered tar andnicotine," alleging that Philip Morris, USA, Inc., and its parent company,Altria Group, Inc., violated Maine Unfair Trade Practices laws by engaging inunfair and deceptive acts or practices. The plaintiffs allege that theso-called "light" cigarettes are deceptively designed and marketed to thepublic, and that a smoker consumes the same quantities of tar and nicotinefrom light cigarettes as from full-flavored, or "regular," ones.

In this case, and in other cases around the country, Philip Morrischallenged the claims on the ground that the Federal Cigarette Labeling andAdvertising Act and the FTC's actions preempted the state law claims broughtunder the Maine consumer protection statutes, essentially arguing that onlybranches of federal government could bring actions against the tobaccocompanies for deception. While the Maine district court dismissed the classaction suit on this basis in May 2006, Judge Jeffrey R. Howard, who wrote theunanimous opinion, said that Philip Morris' arguments were "unavailing."

In its 68 page opinion, Judge Howard also noted that despite PhilipMorris' contention that was a coherent federal policy that barred state law,low-tar claims, this was expressly contradicted by a Supreme Court filing bythe United States Solicitor General in 2006, which stated that the FTC "hasnever promulgated definitions of terms such as 'light' and 'low tar' and thatits previous statements purporting to define them "did not reflect an officialregulatory position."

Gerard Mantese, lead attorney for the plaintiffs, commented, "the Court ofAppeals categorically rejected Philip Morris' assertion that cigarettecompanies have an immunity for fraud," adding, "we now look forward topresenting the merits of this case to a Maine jury."

Mr. Mantese's firm, Mantese and Rossman, P.C., is also representingplaintiffs in "lights" class actions currently pending in Arkansas and NewMexico.

Link to Court Opinion:

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=06-1965.01A

SOURCE Mantese and Rossman, P.C.
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