Page:Philip Morris Companies v. Miner.pdf/18



CV-14-193 PHILIP MORRIS COMPANIES, INC., a corporation and PHILIP MORRIS INCORPORATED, a corporationAPPELLANTS

V.

WAYNE MINER and JAMES EASLEY, individually and on behalf of all others similarly situatedAPPELLEES February 26, 2015

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, [NO. 60CV-03-4661]

HONORABLE TIMOTHY DAVIS FOX, JUDGE

DISSENTING OPINION. 

I respectfully dissent. The circuit court erred by certifying the class in this case because the appellees failed to satisfy the commonality and superioriry requiremenrs under the Arkansas Deceptive Trade Practices Act. A private cause of action may only be brought by individuals who have sustained "actual damages." The "actual damages" requirement, as codified at Arkansas Code Annotated section 4-88-113(f) leaves unsatisfied the commonality and superiority requirements of Rule 23 of the Arkansas Rules of Civil Procedure. I would also deny certification of this class because it is not ascertainable.

The circuit court certified the class as "All persons who purchased Defendants' Marlboro Light [and Marlboro Ultra Light] cigarettes in Arkansas for personal consumption from November 1, 1971, through June 22, 2010." The appellees' theory of the case was that anyone who purchased the Light cigarettes was misled by Philip Morris's marketing that Light cigarettes delivered less tar and nicotine, which it knew would be interpreted as being