United States: Significant Decision Redefines Class Certification in Massachusetts Deceptive Advertising Cases

In a stunning 4–3 decision last week, the Massachusetts Supreme Judicial Court expanded companies’ exposure to consumer fraud class actions.

In Aspinall v. Philip Morris Companies, Inc., the court held that the mere purchase of a deceptively advertised product can satisfy the element of injury for purposes of certifying a class under the Massachusetts Consumer Protection Act, M.G.L. c. 93A. The court’s holding will affect companies in numerous industries that advertise products for sale in Massachusetts.

The plaintiffs in Aspinall, purchasers of "Marlboro Lights" cigarettes, claimed that the defendants’ marketing of "light" cigarettes, described in advertising as having "lowered tar and nicotine," was deceptive because most smokers would receive as much tar or nicotine from Marlboro Lights as they would from regular Marlboro cigarettes. Plaintiffs sought certification of a class of "purchasers of Marlboro Lights cigarettes in Massachusetts" under chapter 93A, § 9(2). Defendants contended that plaintiffs could not prove that all members of the class had suffered a similar injury, in part because plaintiffs conceded that some smokers of Marlboro Lights in fact received lower tar and nicotine.

In upholding class certification, the court held that plaintiffs do not need to prove any injury beyond the purchase of a deceptively advertised product. The court’s willingness to equate the mere purchase of a deceptively advertised product with a legally redressable injury severely dilutes, if not eliminates, the elementsof injury and causation in consumer fraud class actions. Its holding that deceptive advertising may effect "a per se injury on consumers who purchased" the advertised product greatly expands businesses’ exposure for deceptive advertising in Massachusetts and simplifies the plaintiffs’ burden in seeking certification of a consumer class.

The predictable outcome of the court’s decision in Aspinall will be a flood of consumer fraud class actions in Massachusetts courts, as well as efforts by the plaintiffs’ bar to persuade other states to follow suit. Future cases will determine whether the opinion will apply as broadly as some of its language suggests.

The dissent interprets the court’s decision "to mean simply that purchase of a deceptively advertised product may in certain circumstances be alone sufficient to meet the injury requirement of G.L. c. 93A, §9(2), not that the mere purchase of a deceptively advertised product necessarily constitutes per se injury." Even if the dissent is correct, the majority opinion gives no guidance as to the circumstances that may give rise to per se liability, which will have to be determined in future litigation.

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