(proposed class of all children with learning disabilities too difficult to identify and not adequately defined); Intratex Gas Co. v. Beeson, 22 S.W.3d 398 (Tex. 2000); Hamilton v. Ohio Savings Bank, 82 Ohio St. 3d 67, 694 N.E.2d 442 (1998). Clearly defining the class insures that those people who are actually harmed by the defendant's wrongful conduct will participate in rhe relief ultimately awarded. See Simer v. Rios, 661 F.2d 655 (7th Cir. 1981).
Ferguson, 343 Ark. at 631–32, 37 S.W.3d at 593.
The case before us appears to be exactly like Kroger. As Philip Morris notes, there are no records that would tie a specific consumer to a particular purchase. While there are obviously records of how many packs of Marlboro Light cigarettes Philip Morris sold in Arkansas, there is no way to determine how many smokers bought them, as there is no concrete data on how many packs each smoker smokes. Also, the class is defined so broadly, all purchasers of Marlboro Lights in Arkansas, as to reach even those who had no actual damage.
In my view, the majority is wrong to approve of a class that cannot reasonably be ascertained, and is so broad as to include perhaps thousands of members who have sustained no actual damages and are thus not entitled to pursue a cause of action under the Arkansas Deceptive Trade Practices Act. I am mindful that this cause of action is drrected against the manufacturer of cigarettes, a highly unpopular consumer good. However, this case will stand as precedent for all consumer goods. "Light" is the term that has been demonized today because it is associated with cigarettes. Should we countenance equally low standards for class certification when it comes to foods that are labeled "diet," "all natural," "low-fat," or—dare I say—"light?"
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