Beatrice Romero, et al., v. Philip Morris Incorporated, et al., Case No. D-117-CV-2000-972, First Judicial District, County of Arriba, State of New Mexico

Plaintiffs alleged that Philip Morris, Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., Liggett Group, Inc. and Brooke Group Ltd. conspired to “raise, fix, advance, control and maintain at artificially high and non-competitive levels the prices at which they sold cigarettes throughout the State of New Mexico.” They alleged that the conspiracy was effectuated by

“[t]he Defendants, through their officers, directors, employees, and/or agents, including certain of their attorneys, [who] participated in meetings at various times during the Class Period in which future price increases for cigarettes were discussed, agreed upon, and implemented. Those meetings included meetings of the Committee of Counsel, a group of high-level, in-house counsel from the Defendants who met frequently to discuss a wide variety of highly-sensitive issues of concern to the tobacco industry.”

Cuneo Waldman & Gilbert, of Washington, D.C. and Ball & Scott of Knoxville retained Nathan Associates and Nathan’s Principal Consultant Robert McCormick to assess issues related to common impact and to determine whether a methodology or methodologies existed for assessing class-wide damages.

To confirm class-wide impact, Nathan Associates and Professor McCormick conducted a correlation analysis that compared manufacturers’ list prices for cigarettes to actual retail cigarette prices in New Mexico throughout the class period, and calculated aggregate damages for the class period.

In April 2003, New Mexico District Judge James A. Hall ruled from the bench in certifying the plaintiff class: persons who purchased cigarettes indirectly from defendants in the New Mexico at any time from November 1, 1993 to the date of filing of the action. Judge Hall agreed with Professor McCormicks’s conclusion that impact could be shown on a class-wide basis. In discussing damages, he said that

“I think the fact of damage is established with a plausible methodology, therefore, the issue of the amount of damages need not be addressed…Alternatively, I would conclude based upon the affidavit[s] submitted, that if it is required that some reasonable method be addressed for purposes of the amount of damages, that that has been established…”