Page:Philip Morris Companies v. Miner.pdf/20

 people of Arkansas without identifying specific individuals who have been harmed or might potentially be harmed, the private cause of action requires "actual damages." A Person who has not sustained "actual damages" simply cannot bring a private lawsuit under the Arkansas Deceptive Trade Practices Act. Ark. Code Ann. 4-88-113(f). Accordingly, that person should not be made an unnamed plaintiff in a class action.

I agree with Philip Morris's assertion that the proposed class is manifestly unsuitable for class-wide adjudication because the core elements of the Arkansas Deceptive Trade Practices Act claim are that (1) Philip Morris misrepresented that Lights deliver lower tar and nicotine in a way "likely to deceive" a reasonable consumer, and (2) the misrepresentation caused plaintiffs (3) to suffer "actual damage or injury." Philip Morris contends that "[a]ny representation that Lights were lower in tar or nicotine was not false as to class members who smoked Lights in ways that actually delivered lower tar and nicotine." In those instances, the consumers got exactly what they were seeking.

Furthermore, these representations did not apply to those individuals who did not believe the alleged misrepresentations and thus did not rely on the alleged misrepresentation and purchased Lights for reasons other than lower tar and nicotine, such as taste. Philip Morris argues that injury could be shown "only if the purchasers did not receive less tar and nicotine and they would have spent less money on cigarettes in the absence of the alleged misrepresentation. Actual damages would depend on each class member's smoking habits, beliefs, and purchasing history. Obviously, a class member has suffered no "actual damages" if he or she bought Lights because of the taste, peer pressure, or for reasons other than he or