Cite as 2015 Ark. 73
and reliance require individual inquiries, the circuit court can decertify the class in a bifurcated proceeding.
C. Damages
Bifurcation also solves Philip Morris's concern that damages are so individualized that the issue destroys predominance. According to Philip Morris, a plaintiff can only recover if he or she (1) failed to receive less tar or nicotine and (2) would have smoked less or quit smoking but for Philip Morris's fraud. For support, Philip Morris cites to a Second Circuit case that succinctly summarizes the point:
[S]mokers who would have purchased full-flavored cigarettes instead of Lights had they known that Lights were not healthier would have suffered no injury because Lights have always been priced the same as full-flavored cigarettes. By contrast, those who would have quit smoking altogether could recover their expenses in purchasing Lights. And those who would have continued to smoke, but in greater moderation, could recover something in between. Thus, on the issue of out-of-pocket loss, individual questions predominate; plaintiffs cannot meet their burden of showing that injury is amenable to common proof.
McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 228 (2d Cir. 2008).[1] The plaintiffs counter that they are entitled to damages for buying a product that was not as represented—that is, a safer, healthier, and less addictive cigarette.
- ↑ Philip Morris further cites Wallis v. Ford Motor Co., where we held that a classaction claim failed to state a cause of action under the ADTPA because no actual damages lie where the only injury complained of is a diminution in value. 362 Ark. 317, 208 S.W.3d 153 (2005). But in that case, we affirmed the circuit court's decision to dismiss a claim under Ark. R. Civ. P. 12(b)(6). Because Wallis was not about class certification under Rule 23, it is inapposite. Our focus in interlocutory appeals from class-certification orders is "whether the requirements of Rule 23 are met" and "it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action." Am. Abstract, 358 Ark. at 9, 186 S.W.3d at 710.
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