Phillip Morris v. Byron

No. 104657
IN THE
SUPREME COURT OF ILLINOIS
______________________________________________________________________________
PHILIP MORRIS USA, INC., )
)
Petitioner, )
)
vs. ) Motion for writ of mandamus/
) prohibition
HON. NICHOLAS G. BYRON, Judge of the )
Third Judicial Circuit, et al., etc., )
)
Respondents. )
_____________________________________________________________________________
ORDER
This cause coming to be heard on the motion of the petitioner, Philip Morris USA, Inc., an
objection having been filed by the respondents Sharon Price, et al., a reply having been filed by the
petitioner, and the court being fully advised in the premises;
IT IS ORDERED that the motion for leave to file a petition for writ of mandamus or prohibition
is denied. The motion for supervisory order is allowed. In the exercise of this court’s supervisory
authority, the circuit court of Madison County is directed to vacate its order of May 9, 2007,
certifying questions for interlocutory appeal pursuant to Supreme Court Rule 308 in Price et al. v.
Philip Morris USA Inc., No. 00 L 112, and to enter an order dismissing plaintiffs’ motion to vacate
or withhold final judgment pursuant to section 2–1203 of the Code of Civil Procedure (735 ILCS
5/2–1203 (West 2006)).
Order entered by the Court.
CHIEF JUSTICE THOMAS took no part.
JUSTICE FREEMAN, dissenting:
This court allows the motion of Philip Morris USA, Inc., for a supervisory order (188 Ill. 2d R.
383). In the exercise of our supervisory authority, this court directs the circuit court of Madison
County to vacate its certification of questions for interlocutory appeal to the appellate court pursuant
to Supreme Court Rule 308 in Price v. Philip Morris USA, Inc., No. 00 L 112, and to enter an order
dismissing plaintiff’s postjudgment motion pursuant to section 2–1203 of the Code of Civil Procedure
(735 ILCS 5/2–1203 (West 2006)). I respectfully dissent.
I. BACKGROUND
The supervisory order in this case is the capstone of a highly publicized class action, which
resulted in a multibillion dollar judgment in favor of plaintiffs. Some background is in order to
appreciate the significance–and predictability–of this court’s unusual action.
A. Underlying Action
Plaintiffs brought a class action against Philip Morris USA, Inc. (PMUSA), alleging violations of
the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS
505/1 et seq. (West 1998)) and the Uniform Deceptive Trade Practices Act (Deceptive Practices Act)
(815 ILCS 510/1 et seq. (West 1998)). Plaintiffs brought the action on behalf of a class of Illinois
residents who had purchased “Light” cigarettes in Illinois since the introduction of Marlboro Lights
in 1971. Plaintiffs claimed that the word “lights” and the phrase “lowered tar and nicotine” were
deceptive in that those words led each consumer to believe that he or she would receive lower tar and
nicotine from these cigarettes and that, as a result, smoking them would be less hazardous than
smoking regular, full-flavored cigarettes. Plaintiffs alleged that all class members purchased Lights
because of a belief that those cigarettes were less hazardous and provided health benefits not
associated with regular, full-flavored cigarettes, and that no class member would have purchased
Lights “but for” PMUSA’s unfair or deceptive acts or practices. The circuit court certified the class.
PMUSA asserted as an affirmative defense section 10b(1) of the Consumer Fraud Act, which
exempts conduct “specifically authorized by laws administered by any regulatory body or officer
acting under statutory authority of this State or the United States.” 815 ILCS 505/10b(1) (West
1998). In pretrial proceedings and at trial, it was PMUSA’s position, established through testimony
and exhibits, that its use of the terms “lights” and “lowered tar and nicotine” complied with Federal
Trade Commission (FTC) policies. Plaintiffs presented evidence that the FTC did not have an official
policy that permitted cigarette companies to use these terms.
The parties did not dispute that there is no industrywide formal rulemaking authorizing the use
of the disputed descriptors at issue in this case. Further, the FTC does not have any industrywide
formal rule that authorizes or requires cigarette manufacturers to use the terms “light” or “low tar”
or any variation thereof. Moreover, the FTC views what it considers to be a “regulatory” scheme in
this area as a “voluntary approach.”
Dr. John Peterman, PMUSA’s expert witness, testified, inter alia, that a 1971 agreement between
the FTC and a cigarette company, memorialized in a consent order, In re American Brands, Inc., 79
F.T.C. 225 (1971), was “an official act of the FTC,” the terms of which provided “industry guidance
to [PMUSA] and others regarding the use of descriptors.” Likewise, according to Peterman, in a
1995 consent order, In re American Tobacco Co., 119 F.T.C. 3 (1995), the FTC intended to provide
industrywide guidance with respect to the use of descriptors.
At the close of the trial, the circuit court denied PMUSA’s affirmative defense based on section
10b(1) of the Consumer Fraud Act. Specifically finding Dr. Peterman’s testimony to be unpersuasive,
the circuit court ruled that the descriptors “lights” and “lowered tar and nicotine” were false and
misleading, and that the use of those descriptors has never been specifically authorized by law. The
court ruled that PMUSA “voluntarily chose to use these terms on its packages of Marlboro Lights
and Cambridge Lights. No regulatory body has ever required (or even specifically approved) the use
of these terms by Philip Morris. The court finds that Philip Morris has not established that its conduct
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is ‘specifically authorized’ by law.” The circuit court found in favor of plaintiffs and awarded them
damages totaling $10.1 billion.
This court took the appeal directly from the circuit court pursuant to Supreme Court Rule 302(b)
(134 Ill. 2d R. 302(b)). This court concluded that “the FTC’s informal regulatory activity, including
the use of consent orders, comes within the scope of section 10b(1)’s requirement that the specific
authorization be made ‘by laws administered by’ a state or federal regulatory body.” Price v. Philip
Morris, Inc., 219 Ill. 2d 182, 258 (2005) (plurality op.). According to the plurality opinion, through
the 1971 and 1995 consent orders, “the FTC could, and did, specifically authorize all United States
tobacco companies to utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying terms, such as
‘light,’ so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the
‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette.” Price,
219 Ill. 2d at 265 (plurality op.). In the course of reaching this conclusion, the plurality “note[d] with
great interest” Watson v. Philip Morris Cos., No. 4:03–CV–519 GTE (E.D. Ark., December 12,
2003), aff’d, 420 F.3d 852 (8th Cir. 2005). After discussing the case, the plurality concluded that “the
federal district court’s detailed analysis does support our conclusion that specific authorization for
the use of the disputed descriptors may be found in consent orders rather than in formally
promulgated trade regulation rules of the FTC.” Price, 219 Ill. 2d at 265 (plurality op.). This court
reversed the judgment and remanded the cause to the circuit court with instructions to dismiss the
action. Price, 219 Ill. 2d at 274 (plurality op.).
Dissenting, two justices of this court opined that the FTC’s regulatory activity did not rise to the
level of “specific authorization” for PMUSA to use the disputed descriptors in marketing Marlboro
Lights and Cambridge Lights. Price, 219 Ill. 2d at 299 (Freeman, J., dissenting, joined by Kilbride,
J.). The dissenters specifically disagreed with the plurality’s treatment of the Watson case. Price, 219
Ill. 2d at 309-13 (Freeman, J., dissenting, joined by Kilbride, J.).
Plaintiffs filed a petition for rehearing, which was denied by a divided court (see Price, 219 Ill.
2d at 337 (Freeman, J., dissenting upon denial of rehearing, joined by Kilbride, J.)). On November
27, 2006, the United States Supreme Court denied plaintiffs’ petition for a writ of certiorari. Price
v. Philip Morris, Inc., __ U.S. __, 166 L. Ed. 2d 517, 127 S. Ct. 685 (2006). On December 5, 2006,
this court issued its mandate to the circuit court. On December 18, 2006, the circuit court complied
with the instruction of this court and entered an order dismissing the action with prejudice.
B. Postjudgment Motion
On January 17, 2007, plaintiffs filed a postjudgment motion pursuant to section 2–1203 of the
Code of Civil Procedure (735 ILCS 5/2–1203 (West 2006)). The motion noted that on January 12,
2007, the United States Supreme Court had granted certiorari to review Watson v. Philip Morris
Co., the case which the Price plurality “note[d] with great interest.” Price, 219 Ill. 2d at 263
(plurality op.). The section 2–1203 motion further noted that the federal government filed an amicus
curiae brief in support of the certiorari petition. In its brief, the federal government explained that
“the FTC has neither requested nor required tobacco companies to describe or advertise its cigarettes
using [‘light’ or ‘low tar’] or any other descriptors.” Brief of United States as Amicus Curiae in
Support of Petition for Writ of Certiorari in Watson v. Philip Morris Co., No. 05-1284 (U.S. filed
Dec. 15, 2006).
Further, the record shows that the federal government filed an amicus curiae brief on the merits
in Watson, in which the federal government again declared: “The FTC has never promulgated official
regulatory definitions of terms such as ‘light’ or ‘low tar.’ ” Indeed, continued the federal
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government: “Far from issuing detailed and specific regulations that govern respondent’s marketing
of light cigarettes, the FTC has not issued any such regulations at all.” Brief of United States as
Amicus Curiae Supporting Petitioners in Watson v. Philip Morris Co., No. 05-1284 (U.S. filed
February 26, 2007).
On May 2, 2007, the circuit court held a hearing on plaintiffs’ section 2–1203 postjudgment
motion. The court stated that it would not take any action to disturb the judgment, but would certify
the question of whether it had jurisdiction to consider the merits of the motion. On May 9, 2007, the
circuit court certified the following questions for interlocutory appeal pursuant to Supreme Court
Rule 308 (134 Ill. 2d R. 308):
“(1) May a circuit court vacate or set aside a judgment, which the Illinois Supreme Court
directed the court to enter, within 30 days of its entry based on the discovery of new evidence
which was unavailable before the judgment was entered if the newly discovered evidence
discloses an error of fact upon which the judgment was based?
(2) May a circuit court vacate or set aside a judgment which the Illinois Supreme Court
directed the court to enter, if a subsequent United States Supreme Court decision makes plain
that the basis for the judgment was erroneous?
(3) May a circuit court hear and rule on a motion to return to a party documents filed
under seal with the circuit court pursuant to a protective order after the court has entered
judgment as directed by the Illinois Supreme Court?”
The record further shows that on June 11, 2007, the United States Supreme Court handed down
Watson v. Philip Morris Cos., 551 U.S. ___, 168 L. Ed. 2d 42, 127 S. Ct. 2301 (2007), reversing
the decisions of the lower courts, which the plurality opinion in Price discussed with approval. Price,
219 Ill. 2d at 263-65 (plurality op.). On May 17, 2007, Philip Morris filed its motion for a supervisory
order.
II. ANALYSIS
The case law of this court clearly establishes that, beyond our leave to appeal docket, the use of
supervisory orders is disfavored. See People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 513 (2001)
(and cases therein). Generally, this court will not issue a supervisory order absent a finding that (i)
the normal appellate process will not afford adequate relief, (ii) the dispute involves a matter
important to the administration of justice, or (iii) our intervention is necessary in order to prevent an
inferior tribunal from acting beyond the scope of its authority. See Bakalis, 196 Ill. 2d at 513. None
of these circumstances are present in this case.
As an initial matter, the use of a supervisory order in this case is unnecessary because the circuit
court has not acted beyond the scope of its authority. The circuit court had jurisdiction over the
parties because our mandate in Price reinvested the court with jurisdiction. PSL Realty Co. v. Granite
Investment Co., 86 Ill. 2d 291, 304-05 (1981) (collecting cases). Pursuant to that mandate, the circuit
court, in fact, entered the judgment as directed by this court. Thus, the circuit court has complied
with this court’s mandate. What this application for supervisory authority turns on is what happened
after the court complied with the mandate.
Subsequent to the circuit court’s entry of judgment in compliance with this court’s mandate,
plaintiffs filed a motion for postjudgment relief pursuant to section 2–1203 of the Code of Civil
Procedure (735 ILCS 5/2–1203 (West 2006)). Section 2–1203 provides as follows:
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“Motions after judgment in non-jury cases. (a) In all cases tried without a jury, any party
may, within 30 days after the entry of the judgment or within any further time the court may
allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial,
or modification of the judgment or to vacate the judgment or for other relief.
(b) A motion filed in apt time stays enforcement of the judgment.” 735 ILCS 5/2–1203
(West 2006).
One purpose of a section 2–1203 postjudgment motion is to alert the circuit court to errors it has
made and to afford an opportunity for their correction. See In re Marriage of King, 336 Ill. App. 3d
83, 87 (2002); Federal Kemper Life Assurance Co. v. Eichwedel, 266 Ill. App. 3d 88, 98-99 (1994);
Regas v. Associated Radiologists, Ltd., 230 Ill. App. 3d 959, 967 (1992). Another recognized
purpose of a section 2–1203 motion is to bring to the court’s attention newly discovered evidence
which was not available at the time of trial, changes in the law, or errors in the court’s previous
application of existing law. See Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627
(1991); Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 987 (1987). Information
cognizable under a section 2–1203 motion includes actions taken by other courts. See, e.g., Federal
Kemper Life, 266 Ill. App. 3d at 98-99 (affirming circuit court’s grant of section 2–1203 motion to
vacate judgment and consolidate action with another case based on being informed of other judge’s
rulings). The motion is addressed to the circuit court’s sound discretion. Whether a trial court has
abused its discretion turns on whether the court’s refusal to vacate violates the moving party’s right
to fundamental justice and manifests an improper application of discretion. See In re Marriage of
King, 336 Ill. App. 3d at 87 (and cases cited therein); Federal Kemper Life, 266 Ill. App. 3d at 98-99
(and cases cited therein). Relevant here, section 2–1203 makes no distinction between those
judgments entered before an appeal and those entered after an appeal.
Rather than rule on the motion, the circuit court questioned its jurisdiction to consider the motion.
Such an action accords with the notion that a court is obligated to consider its jurisdiction. See Trent
v. Winningham, 172 Ill. 2d 420, 424-25 (1996); Eastern v. Canty, 75 Ill. 2d 566, 570 (1979)
(explaining the courts have a duty to examine their jurisdiction even if not raised by the parties). The
circuit court stated that it would not disturb the judgment entered pursuant to this court’s mandate
but, instead, would certify the question of its jurisdiction to entertain the postjudgment motion.
Supreme Court Rule 308 governs certified questions. Merely because a circuit court certifies a
question of law to the appellate court does not mean that the reviewing court must consider it.
Whether the appeal proceeds is discretionary with the appellate court. In my view, the appellate court
is quite capable of exercising its discretion pursuant to our Rule 308 (155 Ill. 2d R. 308, Committee
Comments, at xcvii (noting that “[t]he appellate courts themselves can insure that this authority to
allow interlocutory appeals is not abused”)). As such, the normal appellate process is adequate to
address the question raised in this motion and thus use of a supervisory order is unwarranted. It has
been the longstanding policy of this court that “applications to this court for original actions of
mandamus and prohibition or for supervisory orders should not be allowed as a way of circumventing
the normal appellate process.” Moore v. Strayhorn, 114 Ill. 2d 538, 540 (1986).
This matter will have no impact on the procedural administration of the courts. Rather, as I have
shown, this is a routine, discretionary appeal. In light of the circumstances of the case and the circuit
court’s actions so far, I do not believe that the question presented here can be characterized as being
of such importance to the administration of justice that it necessitates this court’s exercise of
supervisory authority.
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The court’s action today is entirely predictable because it quickly and quietly closes the book on
a case that a majority of this court, I am sure, would rather forget. Had the court taken steps on
rehearing to learn more about the various FTC actions that exist and thus render a more informed
opinion, as I suggested at the time (Price, 219 Ill. 2d at 342-52 (Freeman, J., dissenting upon denial
of rehearing, joined by Kilbride, J.)), we would not be in the situation that we are in today. I warned,
in my dissent on denial of rehearing, that the court’s suspect analysis with respect to the doctrine of
primary jurisdiction would prove embarrassing over time. Price, 219 Ill. 2d at 342-52 (Freeman, J.,
dissenting upon denial of rehearing, joined by Kilbride, J.). And indeed, time has not been kind to the
plurality’s conclusion that the FTC had “specifically authorize[d]” PMUSA’s use of the terms “lights”
and “lower tar.” Price, 219 Ill. 2d at 265 (plurality op.). The first shot across the bow was fired on
December 16, 2006, when the federal government filed its amicus brief in support of certiorari in the
United States Supreme Court in the Watson case. Then, several months later in the same case, on
February 26, 2007, the federal government, in its amicus brief, told the Supreme Court that “(1) the
FTC has never required tobacco companies to use the Cambridge Method to determine tar levels or
to report the results of those tests in advertising; (2) the FTC has never adopted any official
regulatory definitions of the terms ‘light,’ or ‘low tar’; and (3) the FTC has neither requested nor
required tobacco companies to describe or advertise their cigarettes using those or any other such
descriptors.” (Emphases added.) Next, on June 11, 2007, the United States Supreme Court
unanimously reversed the decisions of the lower courts in Watson, upon which the plurality found
support for its conclusions. Price, 219 Ill. 2d at 263-65. And just a few weeks ago, the United States
Senate Health, Education, Labor and Pension Committee approved a bill which would “for the first
time allow federal regulation of cigarettes.”(Emphasis added.) M. Jalonick, Senate Committee
Approves Tobacco Regulation, Chicago Daily Law Bulletin, August 1, 2007, at 1. Given this turn
of events, it is hardly surprising to see the court grant supervisory relief despite Philip Morris’ utter
failure to satisfy the criteria for this extraordinary remedy.
For the foregoing reasons, I respectfully dissent from the issuance of a supervisory order.
JUSTICE KILBRIDE joins in this dissent.
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