Not infrequently, the law calls upon a court to decide what another court would do with a particular issue or case. In the closing days of its September term, the Illinois Supreme Court agreed to take up Price v. Philip Morris, Inc. in order to answer one of the more interesting dilemmas in that category of cases – just how far can a lower court go on a motion to set aside a judgment in trying to determine what the Illinois Supreme Court itself would have done in different circumstances?

The plaintiff filed a putative class action alleging that the defendant had violated by Illinois Consumer Fraud and Deceptive Business Practices Act – 815 ILCS 505/1 – by advertising cigarettes as “light” and “low tar.” In 2003, the court entered a judgment for plaintiffs in the startling amount of $10.1 billion. In 2005, the Illinois Supreme Court reversed that judgment, finding that the claim was barred by Section 10b(1) of the Act, which provides that the Act doesn’t apply to conduct “specifically authorized” by any federal regulatory body. The theory was that the Federal Trade Commission had specifically authorized the use of the terms “light” and “low tar” in various consent decrees entered into with other cigarette manufacturers.

In 2008 – two years after the Supreme Court’s judgment became final – the FTC filed an amicus brief in an unrelated case before the United States Supreme Court saying that it had never intended to specifically authorize the use of those terms. Shortly after that, the FTC issued a “rescission of guidance” revoking a 1966 document concerning representations manufacturers could make in advertising and packaging about tar and nicotine content.

Ten days after the rescission of guidance was issued, the plaintiffs in Price filed a petition for relief from judgment, seeking to overturn the judgment against them issued at the Illinois Supreme Court’s instruction. The trial court dismissed the petition on the grounds it was untimely, but the Fifth District Appellate Court reversed.

On remand, the trial court held that it was more likely than not, had the FTC’s new actions been available at the time of trial, that the defendant’s Section 10b(1) defense would have failed. The court then turned to the question of whether it was more likely true than not that the Illinois Supreme Court would have affirmed, had the Section 10b(1) defense been rejected. The court held that the Court would have reversed on other grounds, and denied the petition.

The Fifth District reversed once again. The court first affirmed the trial court’s determination that the plaintiffs had acted with sufficient diligence in uncovering the FTC’s new position on the issues. The defendant argued that the plaintiffs had made no attempt to involve the FTC in the litigation until their petition for rehearing in the Illinois Supreme Court, but the Appellate Court said it “defies logic” to conclude that due diligence requires that litigants in a state court proceeding seek the input of a federal agency.

The court then addressed the question of the proper scope of review on a motion to set aside. The court found that the trial court had erred by determining what the Supreme Court would have decided in the first appeal, if it had had the input from the FTC about the Section 10b(1) issue. Rather, once the trial court held that it was more likely than not that the Section 10b(1) defense would have failed with the FTC’s input, since no other issues were decided in the original appeal, the court should have granted the petition and reinstated the verdict, despite the Supreme Court’s reversal of the judgment.

Price is certain to be one of the most high-profile cases on the Supreme Court’s civil docket during the fall and winter. We expect a decision in six to eight months.

Image courtesy of Flickr by Fried Dough (no changes).