Boies, Schiller & Flexner L. L. P. (
David Boies and
Sherab Posel, Armonk;
Donald Flexner and
Amy Mauser, Washington, D.C.; and
Jack Stern, New York City, of counsel), and
Heller Ehrman White & McAuiffe, L. L. P., Washington, D.C. (
Darryl Snider and
Kenneth Chernof of counsel), for Philip Morris Companies, Inc., defendant.
Davis Polk & Wardwell, New York City (
Vincent Chang of counsel), for R.J.R. Nabisco Holdings Corp. and another, defendants.
Jones Day Reavis & Pogue, Washington, D.C. (
Thomas F. Cullen, Jr., William V. O'Reilly and
Edwin L. Fountain of counsel), for R.J. Reynolds Tobacco Co. and another, defendants.
Simpson Thacher & Bartlett, New York City (
Demetra Frawley of counsel), for B.A.T. Industries, PLC, defendant.
Cravath Swaine & Moore, New York City (
Ronald S. Rolfe and
Max R. Shulman of counsel), for British American Tobacco Co., Ltd., defendant.
Kirkland & Ellis (
Colin R. Kass, Washington D.C., and
Stephen R. Patton and
Andrew R. McGaan, Chicago, Illinois, of counsel), for Batus Holdings, Inc., and another, defendants.
Weil Gotshal & Manges L. L. P., Washington, D.C. (
Peter Isakoff and
Holly E. Loiseau of counsel), for Lorillard Tobacco, Inc., defendant.
Shook, Hardy & Bacon, L. L. P., Kansas City, Missouri (
James Eiszner of counsel), for Loews Corporation, defendant.
Clifford Chance Rogers & Wells L. L. P., Washington, D.C. (
Kenneth Gallo of counsel), for Liggett Group, Inc., and another, defendants.
Wechsler Harwood Halebian & Feffer L. L. P., New York City (
Robert I. Harwood and
Samuel K. Rosen of counsel), for plaintiffs.
Stull, Stull & Brody, New York City, for Joseph Nierman, plaintiff.
Richard B. Brualdi, New York City, for Dorothy Sylvester, plaintiff.
OPINION OF THE COURT
CHARLES EDWARD RAMOS, J. Motion sequences Nos. 003, 004, and 006 are consolidated for purposes of disposition. In this purported antitrust class action commenced on behalf of smokers, defendants, Philip Morris Companies, Inc., Philip Morris Incorporated (Philip Morris), R.J.R. Nabisco Holdings Corp., R.J. Reynolds Tobacco Co. (RJR), B.A.T. Industries, PLC, British American Tobacco Co., Ltd. (BAT), Batus Holdings, Inc., Brown & Williamson Tobacco Corp., Lorillard Tobacco, Inc., Loews Corporation, Liggett Group, Inc., and Brooke Group, Ltd. (defendants), move to dismiss, pursuant to CPLR 3211 (a) (5) and (7), on the ground that CPLR 901 (b) prohibits an action, such as this, seeking treble damages. Plaintiffs, Virginia Lennon, Joseph Nierman, and Dorothy Sylvester, claim that defendants have violated General Business Law § 340 (6), commonly referred to as the Donnelly Act base, standing alone, are not sufficient to state a claim of conspiracy. Because plaintiffs fail to oppose defendants' motion to dismiss their claims under General Business Law § 349, that claim must also be dismissed. Accordingly, it is ordered that defendants' motion is granted and the complaint is dismissed in its entirety. [*] Although not relevant here, if plaintiffs' allegations are true, it would appear that the multi-billion dollar National Tobacco Litigation Settlement (which this court did not approve) was a brilliant slight-of-hand by the tobacco companies. By taking the additional price per pack for cigarettes from smokers and transferring that money to the settling state governments and the lawyers who represented those governments, as the settlement amount, these defendants have not been paying the settlement out of their own money, they are merely circulating money from smokers to state governments. It would be as if a retailer found to have overcharged his customers was permitted to repay his customers out of future overcharges.