The biggest thing that Big Tobacco fears is fear itself -- specifically, the terror that grips investors contemplating the barrage of lawsuits against the industry. For the past decade, cigarette executives have been trying to convince Wall Street that their legal expenses are predictable and manageable. But every time they appear to be on the verge of succeeding, a new courtroom threat chills the markets.
Now tobacco companies are coming off their most important legal victory in years, the dismissal of the so-called Engle class action in Florida. Yet they may still have a hard time calming nervous investors. One big reason: an 84-year-old federal judge in Brooklyn, N.Y., named Jack B. Weinstein. The very definition of a judicial maverick, he likes big class actions. He has presided over controversial cases involving everything from asbestos to Agent Orange. Up next on his docket: a decision on whether to green-light a class action potentially covering tens of millions of people who bought "light" cigarettes dating as far back as 1971. Plaintiffs' lawyers claim smokers were defrauded because the cigarettes were no safer than regular smokes and manufacturers knew it. They're seeking damages that, at least by their calculations, could hit $40 billion -- and any award would automatically be tripled because the suit is being brought under the Racketeer Influenced & Corrupt Organizations, or RICO, Act.
It makes little difference that similar claims have made no headway in a dozen other courts. Weinstein is a famously independent thinker who has long championed an expansive approach to class actions as a remedy for large-scale industry wrongdoing. On Aug. 14 he's scheduled to hear oral arguments on whether to certify the "Schwab" light cigarette class action, named for the lead plaintiff. Most observers expect him to do so. "The combination of cigarettes, class actions, and Judge Weinstein constitutes something of a perfect storm for the tobacco makers," says Jonathan Turley, a professor at George Washington University Law School.
If Weinstein allows the class action to go forward, of course, the plaintiffs' attorneys, Cohen, Milstein, Hausfeld & Toll, would still have to prove their case. And even if tobacco makers lose in his court, they could still go to the more conservative Second Circuit Court of Appeals in New York City -- which has reversed many of Weinstein's decisions in past class actions. But these are the kinds of rational legal arguments that, to the frustration of the tobacco industry, fail to mollify investors who worry that the ordinary rules may no longer apply to such a widely vilified industry.
Weinstein happens to be somebody who has never cared that much about the ordinary rules. In his nearly 40 years on the bench, he has developed a reputation as a plaintiff-friendly judge willing to develop novel theories to resolve the complex legal and social issues underlying most mass litigation. In 1999 he presided over the first jury trial ever to find gun manufacturers liable for the way their products are sold. While critics complain that Weinstein often stretches the law, he has repeatedly argued that broad class actions are the most efficient way to force manufacturers to pay up when large numbers of people have been harmed.
That reputation is precisely why the Schwab case ended up in Weinstein's court. While cases are normally assigned randomly to judges within the federal district where they are filed, plaintiffs can ask for a judge who has previously handled related cases. Because of Weinstein's track record, which has included several major tobacco cases, the Schwab case was filed in Brooklyn, and it went to him. "The plaintiffs put this before Judge Weinstein for a reason," says David J. Adelman, an analyst at Morgan Stanley (MS). "He's far more inclined than the typical judge to certify this as a class action."
By Jane Sasseen, with Danna Cook in Brooklyn