978-1285770178 Case Printout Case CPC-24-06 Part 1

N.D.Ill.,2010.

Cleary v. Philip Morris USA, Inc.

683 F.Supp.2d 730 United States District Court,

228 Judgment

228XIII Merger and Bar of Causes of Action and Defenses

228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded

228k584 k. Nature and elements of bar or estoppel by former adjudication. Most Cited Cases

Under Illinois law, final judgment on merits rendered by court of competent jurisdiction bars any subsequent actions

between same parties or their privies on same cause of action.

[4] Judgment 228 540

action.

[5] Judgment 228 585(2)

228 Judgment

228XIII Merger and Bar of Causes of Action and Defenses

228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded

228k587 k. Theory of action or recovery. Most Cited Cases

205HI Nature and Grounds of Obligation

205HI(A) In General

205Hk2 Constructive or Quasi Contracts

205Hk3 k. Unjust enrichment. Most Cited Cases

Under Illinois law, plaintiff may recover under theory of unjust enrichment if defendant unjustly retains benefit to

228XVII Foreign Judgments

228k828 Effect of Judgments of State Courts in United States Courts

228k828.15 Identity of Cause of Action or Relief Sought

[8] Judgment 228 677

228 Judgment

228XIV Conclusiveness of Adjudication

228XIV(B) Persons Concluded

228XIV Conclusiveness of Adjudication

228XIV(B) Persons Concluded

228k677 k. Persons represented by parties. Most Cited Cases

Class members who were not active representatives in prior class action are bound by judgment, so long as they

were adequately represented by class representatives.

170AII(D)1 In General

170Ak164 k. Representation of class; typicality. Most Cited Cases

Failure to pursue every potential theory of relief does not render class representative inadequate. Fed.Rules

Civ.Proc.Rule 23, 28 U.S.C.A.

228k828.9(5) k. Dismissal and nonsuit. Most Cited Cases

Judgment 228 828.11(3)

228 Judgment

to that particular brand. For the following reasons, the Court now denies the motion for judgment on the pleadings

on Count 3 of the third amended complaint insofar as it relates to Marlboro Lights and vacates the order previously

entered by the state court in this case dismissing that particular claim.

Background

Plaintiffs first asserted light cigarettes claims in their first amended complaint, which they filed in state court on

January 19, 2000. In that complaint, plaintiffs requested certification of a separate class of plaintiffs-Illinois resi-

dents who purchased and smoked Marlboro Lights, a brand of cigarettes manufactured and sold by Philip Morris.

Plaintiffs alleged that Philip Morris marketed Marlboro Lights cigarettes as safer than regular cigarettes even though

they were just as dangerous. They sought recovery under the Illinois Consumer Fraud Act (ICFA) and based on a

theory of unjust enrichment.

Philip Morris moved to strike portions of plaintiffs’ first amended complaint that referred to the Marlboro Lights

claims. In response, plaintiffs did not oppose the striking of the claims; they again said the claims were no longer

before the Court “because another circuit court certified that class on February 1, 2001.” Pls.’ Mem. In Opp. To

Def.’s Mot. to Strike ¶ 1. Plaintiffs opposed, however, the striking of certain factual allegations. The state court

companies’ concealment of the true nature of light cigarettes under the ICFA (the only claim before the court at the

time) failed because the Act exempts from liability “conduct in compliance with orders” of a federal agency. Id.

Concluding that the defendants were authorized by FTC practice and consent orders in their marketing of light ciga-

rettes, the court ruled that plaintiffs’ claims were barred. Id.

Shortly after the decision in Altria, plaintiffs moved the state court for leave to file a third amended complaint, a

motion the state court granted. The new complaint reasserted one of the light cigarettes claims from the first amend-

ed complaint-the unjust enrichment claim-and expanded it to encompass other defendants in addition to Philip Mor-

ris and all low tar, light, and ultra light cigarette brands made and sold by Philip Morris, not just Marlboro Lights.