Juul Plaintiffs Win Class Certification in Multidistrict Federal Fraud and Injury Litigation

On June 29, 2022, plaintiffs in the federal Juul fraudulent advertising and injury litigation won a significant procedural victory when District Court Judge William H. Orrick issued an order formally certifying four classes of plaintiffs in the sprawling national Juul case. Certification, which permits the litigation to advance on behalf of all injured plaintiffs collectively, was opposed by all four of the defendants in the case – Juul Labs Inc., the Altria entities, the Founder entities, and other director defendants – who argued that differences among the injured plaintiffs precluded class treatment and required each one to file a separate, individual action.

“The whole purpose of the class action laws is to simplify and streamline litigation for the benefit of all parties – including the defendants in an action,” stated Lieff Cabraser partner Sarah R. London, who serves as Co-Lead Counsel for the plaintiffs in the Juul teen injury, fraud, and RICO litigation. “This is a tremendous victory for the plaintiffs, whose case collectively brings common issues of law, fact, circumstance, wrongdoing, fraud, and injury, as the Court clearly observed. We are delighted to be able to proceed with the litigation in a focused and efficient manner, and look forward to winning our case on behalf of the injured and defrauded teen plaintiffs and their families.”

The defendants in the Juul teen injury and fraud litigation sought to avoid certification on the grounds that no tobacco addiction and fraud case could ever rightly be certified because the “highly individualized nature of decision-making surrounding purchases of products that contain an addictive ingredient” precludes “any finding of common reliance, materiality, and injury, given class members’ different reasons for use and levels of addiction.” In his opinion and order, Judge Orrick dismissed this claim head-on: "[d]efendants paint with too broad a brush. They ignore the specific facts and legal theories here that distinguish the cases they rely on and the expert support provided by plaintiffs that was missing in those cases." Order, page 18.

Defendants also sought escape from liability under an argument that not all of them participated in every stage or element of the alleged fraud and corporate scheming. Highlighting the example of Altria (formerly serial tobacco harm and addiction defendant Philip Morris Companies, Inc.), Judge Orrick held unambiguously, "Each of these arguments fails to undermine class certification with respect to Altria for the same reason. The five schemes identified by plaintiffs, interrelated and together, establish the overall pattern of racketeering activity alleged. That Altria was only directly involved in some of the racketeering activity is not significant. Under Ninth Circuit precedent, all defendants who participated in the RICO enterprise are liable for the entire injury caused by the enterprise’s illegal conduct, regardless of whether they personally participated in every aspect of the conspiracy." Order, page 30.

Defendants further argued that plaintiffs' experts' opinions and evidence should be excluded from the case for a wide variety of reasons. Judge Orrick rejected each and every one of these evidentiary exclusion attempts, ruling that plaintiffs could indeed proceed to have their experts' findings heard and try their case in court.

The Court certified four distinct classes for treatment in the litigation:

• Nationwide Class: All persons who purchased, in the United States, a JUUL product;
• Nationwide Youth Class: All persons who purchased, in the United States, a JUUL product and were under the age of eighteen at the time of purchase;
• California Class: All persons who purchased, in California, a JUUL product; and
• California Youth Class: All persons who purchased, in California, a JUUL product and were under the age of eighteen at the time of purchase.

Judge Orrick also designated specific individual representatives for each class, then appointed Sarah London, along with Girard & Sharp partner Dena Sharp, Keller Rohrback partner Dean Kawamoto, and Weitz & Luxenberg partner Ellen Relkin, as Co-Lead Class Counsel across the full litigation.

"We are extremely pleased with the result achieved here," noted Dena Sharp, "and could not be more proud of our clients and the classes for standing up for their rights and taking on a defendant group with vast resources and a demonstrated willingness to fight against their claims at every turn. We look forward to winning our case in court and obtaining the fullest justice and recompense for the teens, families, and individuals harmed by the defendants' improper and injurious schemes and conduct."

Judge Orrick's Order concluded with a direction to plaintiffs to propose a Notice and Notice plan after meeting and conferring with the defendants within 45 days of the Order, and, that as part of that process, plaintiffs should propose a formal Class Period for the classes certified.

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