Page:Philip Morris Companies v. Miner.pdf/7

 We address these three issues in turn. We conclude that proof of misrepresentation does not turn on each class member's smoking habit because the key inquiry under the ADTPA focuses on the defendant’s actions. We further conclude that any individual issues regarding causation and damages can be addressed, if necessary, using the bifurcated approach. And we agree that the circuit court did not abuse its discretion when it reached the same conclusion: "The other issues raised by [Philip Morris] in an attempt to negate predominance are downstream of the common, predominate threshold allegation of the plaintiffs: that Marlboro Lights, as designed, manufactured, advertised, and sold, were misrepresented."

A. Misrepresentation
Philip Morris argues that the misrepresentation element of plaintiffs' ADTPA claim can be resolved only by considering each class member's smoking habit. This argument is premised on a phenomenon known as compensation. Compensation, as another court has explained, is "the tendency of smokers of light cigarettes to inhale more deeply, hold the smoke in their lungs longer, or cover up the ventilation holes in the cigarette paper or filter, in order to receive the same amount of tar and nicotine as when smoking Regulars." Lawrence v. Philip Morris USA, Inc., 53 A.3d 525, 529 (N.H. 2012). Philip Morris argues that because some smokers failed to "fully compensate," they actually received less tar and nicotine; therefore, smokers who failed to fully compensate were not deceived. The plaintiffs respond that whether an individual received less tar or nicotine is irrelevant—the issue is Philip Morris’s advertising Lights cigarettes as safer, healthier, and