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ant's conduct had caused “spinal injury which consisted of one or more crushed vertebrae.” Porter, 227 Ill.2d at 362-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
325, 199 N.E.2d 652, 655-56 (1964).
Plaintiffs cite two sets of “changed circumstances” that they argue justify vacating the 2002 order: the decision by
the class representatives in Price to voluntarily dismiss their parallel unjust enrichment claim, and the Supreme
Court's 2008 decision in Altria, which they contend constitutes a subsequent change in the law that undermines the
1. The requirements for claim preclusion
Philip Morris argues that there is no reason to vacate the earlier dismissal order because the plaintiffs' claim regard-
ing Marlboro Lights is precluded by the Illinois Supreme Court's decision in Price. A final judgment on the merits
of an action precludes the parties to that action and their privies from litigating claims that were or could have been
actions between the same parties or their privies on the same cause of action.” Rein v. David A. Noyes & Co., 172
Ill.2d 325, 334, 216 Ill.Dec. 642, 665 N.E.2d 1199, 1204 (1996). Three requirements must be satisfied for claim
preclusion to apply: a final judgment on the merits rendered by a court of competent jurisdiction; identity of the par-
ties or their privies; and identity of the causes of action. Downing v. Chicago Transit Auth., 162 Ill.2d 70, 73-74, 204
Ill.Dec. 755, 642 N.E.2d 456, 458 (1994). If these requirements are met, the judgment in the earlier suit bars “not
tiff class in Price. Plaintiffs contend, however, that there is no identity of the causes of action because class mem-
bers in this case raise a different claim from the one that was decided in Price and seek a different remedy.
[5] Illinois law applies the “transactional test” to determine whether there is an identity to the cause of action at is-
sue. Under this test, “separate claims will be considered the same cause of action ... if they arise from a single group
good conscience. E.g., HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 160, 137 Ill.Dec. 19,
545 N.E.2d 672 (1989). Plaintiffs allege that Philip Morris promoted the sale of its light cigarettes by encouraging
smokers to believe they were healthier than regular cigarettes, when they are in fact just as dangerous. Plaintiffs con-
tend that Philip Morris was unjustly enriched as a result of these claims about light cigarettes and that allowing Phil-
ip Morris to keep the money it made selling light cigarettes would violate principles of justice, equity, and good con-
representatives elected not to pursue the unjust enrichment theory. Whether or not this is enough to render the repre-
intervening change in law between the first and second cases creates a materially altered situation. See Statler v.
Catalano, 293 Ill.App.3d 483, 487, 229 Ill.Dec. 274, 691 N.E.2d 384, 387 (1997) (“Res judicata does not operate as
an automatic bar where between the time of the first and the second there has been an intervening decision or a
change in the law creating an altered situation.”); see also, C.O. Baptista Films v. Cummins, 9 Ill.2d 259, 265, 137
N.E.2d 393, 397 (1956) (“a definitive interpretation [of a statute] which was directly opposed to the [earlier] deci-
gument, the Court first considers the basis for the decision in Price.
As noted earlier, in Price the Illinois Supreme Court determined that the ICFA claim in that case was barred on the
ground that the FTC's actions constituted authorization of the tobacco companies' marketing practices. The court
concluded that “the FTC could, and did, specifically authorize all United States tobacco companies to utilize the
265-66, 302 Ill.Dec. 1, 848 N.E.2d at 50.
The plaintiffs in Altria were Maine residents who smoked Marlboro Lights and Cambridge Lights. They alleged that
Philip Morris (and its parent company Altria Group) deliberately deceived consumers about “the true and harmful
nature of ‘light’ cigarettes” in violation of a Maine statute that, like the ICFA, prohibits “unfair methods of competi-
of those yields through the use of “light” or “low tar” descriptors.” Id. And the Court specifically addressed and re-
jected the argument about the FTC's American Brands consent order that the Illinois Supreme Court had accepted in
Price. The Court stated that the consent order authorized nothing; it “only enjoined conduct,” and in any event it was
binding only on the parties to the consent order. Id. at 550 n. 13.FN2 In short, the Supreme Court's decision in Altria
reads the FTC's actions in a way that directly contradicts the interpretation on which the Illinois Supreme Court re-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
325, 199 N.E.2d 652, 655-56 (1964).
Plaintiffs cite two sets of “changed circumstances” that they argue justify vacating the 2002 order: the decision by
the class representatives in Price to voluntarily dismiss their parallel unjust enrichment claim, and the Supreme
Court's 2008 decision in Altria, which they contend constitutes a subsequent change in the law that undermines the
1. The requirements for claim preclusion
Philip Morris argues that there is no reason to vacate the earlier dismissal order because the plaintiffs' claim regard-
ing Marlboro Lights is precluded by the Illinois Supreme Court's decision in Price. A final judgment on the merits
of an action precludes the parties to that action and their privies from litigating claims that were or could have been
actions between the same parties or their privies on the same cause of action.” Rein v. David A. Noyes & Co., 172
Ill.2d 325, 334, 216 Ill.Dec. 642, 665 N.E.2d 1199, 1204 (1996). Three requirements must be satisfied for claim
preclusion to apply: a final judgment on the merits rendered by a court of competent jurisdiction; identity of the par-
ties or their privies; and identity of the causes of action. Downing v. Chicago Transit Auth., 162 Ill.2d 70, 73-74, 204
Ill.Dec. 755, 642 N.E.2d 456, 458 (1994). If these requirements are met, the judgment in the earlier suit bars “not
tiff class in Price. Plaintiffs contend, however, that there is no identity of the causes of action because class mem-
bers in this case raise a different claim from the one that was decided in Price and seek a different remedy.
[5] Illinois law applies the “transactional test” to determine whether there is an identity to the cause of action at is-
sue. Under this test, “separate claims will be considered the same cause of action ... if they arise from a single group
good conscience. E.g., HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 160, 137 Ill.Dec. 19,
545 N.E.2d 672 (1989). Plaintiffs allege that Philip Morris promoted the sale of its light cigarettes by encouraging
smokers to believe they were healthier than regular cigarettes, when they are in fact just as dangerous. Plaintiffs con-
tend that Philip Morris was unjustly enriched as a result of these claims about light cigarettes and that allowing Phil-
ip Morris to keep the money it made selling light cigarettes would violate principles of justice, equity, and good con-
representatives elected not to pursue the unjust enrichment theory. Whether or not this is enough to render the repre-
intervening change in law between the first and second cases creates a materially altered situation. See Statler v.
Catalano, 293 Ill.App.3d 483, 487, 229 Ill.Dec. 274, 691 N.E.2d 384, 387 (1997) (“Res judicata does not operate as
an automatic bar where between the time of the first and the second there has been an intervening decision or a
change in the law creating an altered situation.”); see also, C.O. Baptista Films v. Cummins, 9 Ill.2d 259, 265, 137
N.E.2d 393, 397 (1956) (“a definitive interpretation [of a statute] which was directly opposed to the [earlier] deci-
gument, the Court first considers the basis for the decision in Price.
As noted earlier, in Price the Illinois Supreme Court determined that the ICFA claim in that case was barred on the
ground that the FTC's actions constituted authorization of the tobacco companies' marketing practices. The court
concluded that “the FTC could, and did, specifically authorize all United States tobacco companies to utilize the
265-66, 302 Ill.Dec. 1, 848 N.E.2d at 50.
The plaintiffs in Altria were Maine residents who smoked Marlboro Lights and Cambridge Lights. They alleged that
Philip Morris (and its parent company Altria Group) deliberately deceived consumers about “the true and harmful
nature of ‘light’ cigarettes” in violation of a Maine statute that, like the ICFA, prohibits “unfair methods of competi-
of those yields through the use of “light” or “low tar” descriptors.” Id. And the Court specifically addressed and re-
jected the argument about the FTC's American Brands consent order that the Illinois Supreme Court had accepted in
Price. The Court stated that the consent order authorized nothing; it “only enjoined conduct,” and in any event it was
binding only on the parties to the consent order. Id. at 550 n. 13.FN2 In short, the Supreme Court's decision in Altria
reads the FTC's actions in a way that directly contradicts the interpretation on which the Illinois Supreme Court re-
