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Watson v. Philip Morris

Tobacco companies are facing a blizzard of illegitimate class actions and class certifications over light cigarettes in state court. One sympathizes with the tobacco companies being sued for labeling cigarettes' tar and nicotine content under the "Cambridge Method" given that the FTC threatened companies with suit were they to vary from that formulation, as well as with the defendants' desire to get out of state courts that misapply procedural rules for class certification. (Preventing such forum shopping was the rationale behind the Class Action Fairness Act, but the law was not retroactive.) But the tobacco companies have resorted to a, shall we say, aggressively creative interpretation of federal jurisdiction, and removed several suits to federal court under 28 U.S.C. � 1442(a)(1), a provision creating federal jurisdiction when federal officers were sued.

It's not a wildly crazy extension. For example, in Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482 (1st Cir. 1989), a court held there was � 1442(a)(1) federal jurisdiction over a lawsuit brought against a private telephone company that, at the behest of federal officers, assisted an allegedly illegal wiretapping. The Eighth Circuit bought into this use of the law in Watson v. Philip Morris, and plaintiffs sought a writ of certiorari, arguing that the FTC's regulation of cigarette advertising was not so extensive as to be acting at the behest of federal officers and thus did not merit � 1442(a)(1) jurisdiction.

Deepak Gupta reports that the Solicitor General, filing a brief at the request of the Court, has agreed with the petitioners that the Eighth Circuit is factually incorrect, but recommends against a grant of certiorari. Gupta finds this inconsistent, but a reading of the SG's brief shows that the distinction arises from the Supreme Court's decision to limit its workload by taking itself out of the business of mere "error correction" in cases where the lower court has not misstated the law but merely applied it incorrectly to the facts. One can find fault with the Supreme Court's policy in this regard, but not with the SG's application of it.

If the Supreme Court does decide to accept certiorari, it's fairly likely that this is a signal that it will reverse the Eighth Circuit. If so, class actions will be remanded to state courts in Arkansas, Missouri, and Minnesota, and the last two states have already joined Massachusetts as the only states to certify classes (though those rulings may not withstand appeals down the line—a second court in Minnesota refused to certify a class). A similar case in Madison County, Price v. Philip Morris, resulted in $10.1 billion in implausible damages and attorneys' fees being awarded before the Illinois Supreme Court intervened. Judge Weinstein's certification of a federal class is currently on appeal in the Second Circuit (Oct. 1 and links therein).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.