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Price v. Philip Morris12/15/2005
a(e) (West 1998)). According to PMUSA, Consumer Fraud Act claims based on purchases that occurred more than three years prior to the filing of this lawsuit are barred by section 10a(e) of the Consumer Fraud Act. The discovery rule tolls the running of the limitations period with respect to claims that would have put a reasonable person on notice of the need to investigate " `whether actionable conduct is involved.' " Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 86 (1995), quoting Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). Thus, PMUSA asserts, application of the discovery rule to extend the class period beyond three years raises additional individual questions of fact regarding when individual class members were exposed to public information about the controversy regarding "light" and "low tar" cigarettes.
Plaintiffs respond that because the circuit court found each of the factual elements of the fraud claimed proven, PMUSA cannot now argue that the class certification was improper without demonstrating to this court that each of the court's factual findings was against the manifest weight of the evidence.
3. Motion for Summary Judgment Based on PMUSA's Claims of Preemption and Exemption
PMUSA filed a motion for summary judgment on its affirmative defenses of express and implied federal preemption and exemption from liability under sections 2 and 10b of the Consumer Fraud Act (815 ILCS 505/2, 10b (West 1998)).
On October 28, 2002, a hearing was held to consider PMUSA's motion for summary judgment. PMUSA argued that plaintiffs' claim is expressly preempted by the Federal Cigarette Advertising and Labeling Act, which provides that " o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with [this Act]." 15 U.S.C. ยง1334(b) (2000). PMUSA also argued that under the Supreme Court's decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L.Ed. 2d 407, 112 S.Ct. 2608 (1992), plaintiffs cannot base their claim on an allegation that defendant has neutralized the warning Congress requires on cigarette packages and, under Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 148 L.Ed. 2d 854, 121 S.Ct. 1012 (2001), plaintiffs' claim cannot be predicated on an alleged fraud upon the FTC. Based on the comprehensive federal regulatory scheme governing the labeling and advertising of cigarettes as well as the disclosure of tar and nicotine levels, PMUSA argued implied preemption.
PMUSA further argued that section 10b(1) of the Consumer Fraud Act "exempts conduct that complies with federal laws or the rules, regulations, or decisions of federal agencies" and that the "enormous record" of "advertising guides, agreements, proposed trade regulation rules, consent orders, investigations, determinations, and rulemakings * related specifically to the use of `low tar' and `lights' " in cigarette advertising and labeling. Because the record clearly demonstrates that PMUSA has used these terms only on products "below the fifteen milligram cutoff," PMUSA asserted that such compliance provided a "full defense" to plaintiffs' Consumer Fraud Act claim. Relying on this court's decisions in Lanier v. Associates Finance, Inc.,114 Ill. 2d 1, 18 (1986) (finding compliance with disclosure requirements of federal Truth in Lending Act as interpreted by Federal Reserve Board staff to be a defense to liability under the Consumer Fraud Act), Jackson v. South Holland Dodge, Inc., 197 Ill. 2d 39, 47 (2001) (finding compliance with federal statute to be a defense to liability under the Consumer Fraud Act), and
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