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Predominance Requirement for Class Certification

By Martin Flumenbaum and Brad S. Karp
September 29, 2008

Recently, the U.S. Court of Appeals for the Second Circuit reversed the district court's certification of a class action by smokers alleging they were deceived by the defendant tobacco companies' marketing of so-called light cigarettes as a healthier alternative to regular, or “full-flavored,” cigarettes. McLaughlin v. American Tobacco Co., Docket No. 06-4666-cv, 2008 U.S. App. LEXIS 7093 (2nd Cir. April 3, 2008).

The court ruled that class certification was inappropriate because “numerous issues” in the case, including issues of reliance, causation, and injury, were “not susceptible to generalized proof.” Id. at *47. Although this decision received media attention for its high-profile subject matter, it is extremely significant legally for the high bar it sets for putative class-action plaintiffs seeking class certification of fraud-based claims.

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