Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BERGERON v. PHILIP MORRIS

June 8, 2000

DAVID B. BERGERON; MARK L. ERLICH; ANTHONY J. GRAZIANO; THOMAS HARRINGTON; SIMON JAMES; KIRK FORDYCE; LAWRENCE MORRISROE; DAVID WALLACE; DAVID WOODMAN; WILLIAM J. SULLIVAN; STEPHAN A. ADAMIC; GEORGE BIDGOOD; THEODORE H. BRODIE; DONALD COLAVECCHIO; THOMAS J. GUNNING; MICHAEL SHAUGHNESSY; AND CHRISTOPHER TOPPS ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED TRUSTEES OF HEALTH CARE FUNDS, PLAINTIFFS,
V.
PHILIP MORRIS, INCORPORATED; PHILIP MORRIS COMPANIES, INC.; R.J. REYNOLDS TOBACCO COMPANY; RJR NABISCO, INC.; BROWN & WILLIAMSON TOBACCO CORPORATION; BRITISH AMERICAN TOBACCO CO., LTD.; BATUS HOLDINGS INC.; B.A.T. INDUSTRIES P.L.C.; LORILLARD TOBACCO COMPANY; LORILLARD CORPORATION; LOEWS CORPORATION; THE AMERICAN TOBACCO COMPANY; AMERICAN BRANDS, INC.; LIGGETT GROUP INC.; LIGGETT & MYERS, INC.; THE BROOKE GROUP, LIMITED; HILL & KNOWLTON, INC.; THE COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC.; AND THE TOBACCO INSTITUTE, INC., DEFENDANTS.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

MEMORANDUM and ORDER

TABLE OF CONTENTS

I INTRODUCTION .......................................... 166

II FACTUAL ALLEGATIONS ................................... 166

III STANDARD FOR DISMISSAL ................................ 168

IV CHOICE OF LAW ......................................... 169 A. Principles ......................................... 169 B. Application ........................................ 170 C. Massachusetts' Statute ............................. 171 D. New York's Act ..................................... 172

V CONCLUSION ............................................ 172

I INTRODUCTION

Plaintiffs, trustees of the Massachusetts State Carpenters Health Benefits Fund ("Fund"), bring this action in their fiduciary capacity for damages suffered by the Fund due to "past and ongoing deceptive acts and practices and false advertising" by the major tobacco product manufacturers and related entities ("Tobacco"). Compl. ¶ 1. Plaintiffs seek recovery under New York's Consumer Protection Act. See N.Y.Gen.Bus.Law §§ 349-350. Competence is premised on diversity. See 28 U.S.C. § 1332(a)(1).

Allegedly, Tobacco engaged in deceptive conduct and false advertising that "had the effect of sustaining high levels of smoking among . . . Fund participants," resulting in smoking-related diseases for which the Fund expended "millions of dollars in excess health care costs." Compl. ¶ 62. A substantial portion of this conduct is said to have either initiated or occurred in New York. See Compl. ¶¶ 149, 155.

Defendants have moved for dismissal on three grounds. See Fed.R.Civ.P. 12(b)(6). They argue the following: 1) New York's choice-of-law principles require application of Massachusetts' Unfair and Deceptive Trade Practices Statute rather than New York's Consumer Protection Act; 2) even if New York's Consumer Protection Act applies, it does not provide recovery for derivative injuries such as those the Fund alleges; and 3) even if the New York Act covers derivative injuries, the Fund is not within the class of persons protected by the Act.

Defendants are likely correct on the first ground, that the Massachusetts' Statute governs, making it unnecessary at this time to reach the remaining issues arising under the New York Act. Defendants' motion for dismissal is nonetheless denied; further discovery is necessary to aid final resolution of the conflicts issue. The complaint will be construed to state claims under comparable provisions of the Massachusetts' Statute. See Fed.R.Civ.P. 8(f).

II FACTUAL ALLEGATIONS

According to plaintiffs, today it is beyond dispute that cigarette smoking can lead to cancer, pulmonary diseases, and coronary heart disease. See Compl. ¶ 9. Cigarette smoking causes more than 85% of all lung cancer. It is responsible for at least 30% of all deaths from cancer and more than 80% of deaths from pulmonary diseases such as emphysema and bronchitis. See Compl. ¶ 9(a) & (b). It is also one of the three leading causes of coronary heart disease. See id. ¶ 9(c).

Plaintiffs identify five categories of deceptive and unlawful conduct: (1) denying the addictiveness of cigarettes; (2) manipulating nicotine levels; (3) creating the appearance of an "open controversy" regarding health effects of smoking; (4) marketing cigarettes to teenagers; and (5) co-opting organized labor to deny smoking hazards.

Plaintiffs allege a substantial portion of this deceptive conduct was orchestrated and carried out in New York. In particular, plaintiffs cite the role that the Council for Tobacco Research (CTR), Tobacco's New York based trade organization, played in furthering the alleged national conspiracy regarding smoking. Plaintiffs also rely on the fact that Hill & Knowlton, Inc., an international public relations firm based in New York City, played an "active role in the [Tobacco] conspiracy . . . by aiding the circulation and/or publication of many false statements of the tobacco industry attributable to the . . . Council for Tobacco Research." Compl. ¶ 33.

Founded in 1954, the CTR was initially called the Tobacco Industry Research Committee (TIRC). See Compl. ¶ 69(a). All six of the major cigarette manufacturers were original members except for Liggett. See Compl. ¶ 61. In 1964, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.