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

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N.D.Ill.,2010.
Cleary v. Philip Morris USA, Inc.
683 F.Supp.2d 730 United States District Court,
page-pf2
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
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
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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
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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.
page-pf6
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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.

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