Deceptive Advertising Cases: Do They Survive McLaughlin?

In McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008), the Second Circuit, in a federal RICO case, decertified a nationwide class consisting of cigarette smokers allegedly deceived into believing "light" cigarettes were healthier than "full-flavored" cigarettes. The Second Circuit held that individualized issues relating to reliance, injury, and damages outweighed issues susceptible to common proof. The Eighth Circuit reached a similar result in In Re St. Jude Medical Inc., 522 F.3d 836 (8th Cir. 2008). These cases should make it more difficult to maintain class actions alleging deceptive advertising and may influence other courts.

Join Brent Austin, Esq. and Lisa Simmons, Esq., of the Litigation Department at Wildman Harrold as they discuss the following:

• How have other courts approached similar reliance or deception issues?
• Is reliance or deception ever susceptible to common proof?
• How have other courts approached similar injury and damages issues?
• Are consumer transactions distinguishable from financial transactions?
• How should courts address certification of statutory deception claims that do not require reliance?
• How should courts address requests for partial certification of an issue class in a deceptive advertising case?
• When should courts resolve contested merits issues as part of the class certification analysis?
• How will these court decisions affect settlement classes?

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