Today, the Tenth Circuit issued a divided opinion in Dunn v. Santa Fe Natural Tobacco Company, a consumer class action brought against the manufacturers of Natural American Spirit (NAS) cigarettes. The consumers allege that they were misled into believing that the company’s cigarettes were less harmful than those produced by other companies. On interlocutory review of the district court’s class certification decisions, the majority affirmed the district court’s certification of a class of menthol cigarette purchasers, and reversed its denial of certification for a class of all NAS cigarette purchasers.
The parties raised many issues in their cross-appeals, all of which were discussed in the Tenth Circuit’s lengthy opinion. Two topics were of particular note. The court rejected the defendant’s argument that the requirement that a class be ascertainable includes an administrative feasibility requirement, which would have prohibited certifying the menthol class, instead suggesting that administrative feasibility, or “manageability” may be considered in balance with other factors as part of the predominance analysis. The court also rejected the plaintiff’s argument that the district court had erred in considering feasibility in denying certification as to the larger class.
Turning to the plaintiffs’ damages and causation models, the Court agreed that the district court had erred in rejecting their proposed model for the larger class, and rejected the defendants’ challenge to the damages model for the menthol clast. The court held that the models satisfied Comcast v. Behrend- finding that the defendant’s challenges to that model went to the merits, not the predominance question.
Dissenting, Judge Tymkovich would have found certification of either class improper on the ground that the damages models were insufficient under Comcast. As to administrative feasibility, he agreed that the majority had properly applied Tenth Circuit law, but called for the Supreme Court to visit the issue and adopt an administrative-feasibility rule as more consistent with the Rules Enabling Act
