Ohio high court restricts class actions
Lower-court ruling in Philip Morris suit is overturned

T.C. Brown, Cleveland Plain Dealer

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Columbus- A split Ohio Supreme Court Wednesday imposed new restrictions on residents who want to file class-action lawsuits against companies accused of deceptive practices.

In a 4-3 ruling, justices overturned lower-court decisions that granted class status in a case filed by Northeast Ohioans who sued Philip Morris, Inc., claiming fraud in marketing its Marlboro Light and Virginia Slims cigarettes.

The court's majority said a judge can certify a case for class action under Ohio's Consumer Sales Practices Act only if the violation cited is "substantially similar" to an act or practice previously declared deceptive by the attorney general or a court.

Joan Claybrook, president of Public Citizen, which was not part of the case, called the ruling outrageous.

"I think this is a political decision by the court and has nothing to do with the merits," Claybrook said. "Consumers suffer the consequences of death and injury, and the court moves on behalf of business interests."

Philip Morris issued a statement calling the ruling sensible and reflective of the intent of the state's consumer protection law.

Catherine Marrone, of Seville, and Greg and Eva Phillips, of Medina, filed the original lawsuit. The plaintiffs accused Philip Morris of marketing the cigarettes as a safer alternative. But the company knew medical tests showed that smokers inhaled the same amount of tar and nicotine as they did in regular cigarettes, according to the lawsuit.

A Medina County Common Pleas judge granted class-action status, a ruling upheld by the 9th Ohio District Court of Appeals.

But the Supreme Court, in a decision written by Justice Evelyn Lundberg Stratton, reversed those rulings. The lower courts improperly considered past cases in which companies used deceptive practices in selling gasoline and automobiles. Thus, Philip Morris was not provided advance notice, as required by law, that it was involved in a deceptive practice, Stratton wrote.

"These cases did not involve the cigarette or tobacco industries," Stratton wrote. Stratton acknowledged that the ultimate question in the lawsuit was whether the company deliberately deceived customers, but that issue was not appealed to the court.

Chief Justice Thomas Moyer and Justices Maureen O'Connor and Terrence O'Donnell agreed. Justice Judith Lanzinger and Judge Thomas Grady, of the 2nd Ohio District Court of Appeals sitting in for Justice Alice Robie Resnick, agreed in part and dissented in part. Justice Paul Pfeifer dissented.

In a separate opinion, Grady said that requiring a substantially similar test undermines the intent of the Consumer Sales Practice Act. Pfeifer called the ruling an "unconscionably narrow" reading of the law.

"I would certify the class and allow the plaintiffs to proceed to trial," Pfeifer wrote. "To do otherwise is to encourage everyone doing business in this state to engage in deceptive practices."

Charles "Rocky" Saxbe, the plaintiffs' lawyer, said the ruling gives "unscrupulous suppliers one free bite at the apple, or one free deception or misrepresentation before they can be subject to a class-action lawsuit."

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