Tobacco makers win legal question over term `aggrieved consumer'

Journal Record, The (Oklahoma City), Sep 22, 2000 by Marie Price The Journal Record

Merely buying a pack of cigarettes does not qualify a person as an "aggrieved consumer" under the Oklahoma Consumer Protection Act, the Oklahoma Supreme Court has held.

The state justices answered a series of questions posed by U.S. District Judge Sven Erik Holmes in the Northern District of Oklahoma, in a case filed by Brian Walls and others against the American Tobacco Co. At issue is whether Walls and other cigarette smokers should be certified as a class in a case against six current or former cigarette manufacturers and the Council for Tobacco Research. The plaintiffs are represented by a Wichita law firm.

The original consumer protection act was enacted in 1972. The law allows the attorney general to bring actions to restrain unlawful practices and to levy civil penalties.

A 1980 change in the statute allows aggrieved consumers to recover actual damages for activities that violated the act. However, suit had to be brought by the attorney general or a district attorney.

Consumers were finally given the right to sue under the law in 1988. A 1994 amendment authorizes the attorney general or a district attorney to recovery civil penalties of up to $10,000 per violation, in addition to other penalties for violation of the act.

Before Holmes, the smokers contended that being an aggrieved consumer merely requires proof that a plaintiff was the consumer in an unlawful transaction, but the unanimous state court said that is not the case.

"Even the term `aggrieved consumer' implies that the consumer must have suffered some detriment caused by violation of the OCPA," the court said.

That being the case, the justices told Holmes, a person may not bring an action as an aggrieved consumer under the consumer protection act as a result of paying the purchase price for a product -- there must be some actual injury or damaged caused by the violation.

The court said individuals are also not permitted to bring actions for recovery of civil penalties, because this authority is expressly reserved for the attorney general and district attorneys.

The justices also held that a consumer's right to bring an action under the act is limited to conduct that occurred after the effective date of the 1988 amendment. They pointed out that statutes that bring about changes in substantive rights are presumed to operate prospectively.