Tillery's attempt to reopen $10 billion tobacco case may fail in light of USSC decision

Steve Korris Jul. 4, 2007, 12:00pm

Stephen Tillery

Stephen Tillery must take a mighty leap to convince the Illinois Supreme Court that a new U.S. Supreme Court decision automatically revives his $10 billion class action against cigarette maker Philip Morris.

For months Tillery predicted a U.S. Supreme Court declaration that the Federal Trade Commission never authorized labeling of light and low tar cigarettes, but the Justices declared no such thing.

In fact, they unanimously agreed June 11 that Philip Morris complied with FTC labeling regulations.

That sounds more like an argument for Philip Morris than for Tillery, who seeks an Illinois Supreme Court order reopening his suit in Madison County.

In 2005 the Justices in Springfield reversed Circuit Judge Nicholas Byron, who had entered judgment against Philip Morris in excess of $10 billion for fraudulent labeling.

The Justices in Springfield held that smokers could not sue over labels in state court because Philip Morris printed labels under federal authority.

Tillery asked for reconsideration. He did not get it.

Last year he asked the U.S. Supreme Court for a hearing. He did not get it.

The Illinois Supreme Court ordered Byron to dismiss the suit. In December Byron dismissed it.

In January Tillery asked Byron to vacate the judgment.

Tillery argued that a new brief from the U.S. Solicitor General disputed the notion that the FTC authorized light and low tar labeling.

He argued that the U.S. Supreme Court would render a decision before June 21, approving the Solicitor General's position.

At a hearing in May, Tillery told Byron that in light of the U.S. Supreme Court decision, the Illinois Supreme Court would see its error and correct it.

Byron certified a question of his jurisdiction to the Fifth District appellate court in Mount Vernon.

For Philip Morris, former Gov. James Thompson asked the Illinois Supreme Court to stop the Fifth District action and set Byron straight.

"This Court can and should put a stop once and for all to plaintiffs' futile efforts to resurrect their case…," Thompson wrote.

Then everyone waited for word from Washington.

When it came, the Justices decided nothing more than whether compliance with FTC regulations entitled private persons to remove lawsuits from state court to federal court.

They ruled against Philip Morris and ordered the federal court to bounce the suit back to state court.

Justice Stephen Breyer wrote, "…a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone."

He rejected Philip Morris's argument that a federal statute allowing removal of suits against federal officers allowed removal for those assisting federal officers.

"In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law," Breyer wrote.

He stressed regulation even more strongly than Philip Morris, which argued that the FTC delegated authority to tobacco companies.

"...[W]e have found no evidence of any delegation of legal authority from the FTC to the industry association...," Breyer wrote.

"We have examined all of the documents...none of the documents establish the type of formal delegation that might authorize Philip Morris to remove the case.

"This sounds to us like regulation, not delegation."

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