LORI ASPINALL & another [Note 1] vs. PHILIP MORRIS COMPANIES, INC., [Note 2] & another. [Note 3]

GREANEY, J. The essential question presented by this appeal is whether the marketing of Marlboro Lights as "light" cigarettes that deliver "lowered tar and nicotine" may be challenged in a class action seeking damages, as deceptive conduct in a trade or business, in violation of G. L. c. 93A, §§ 2 and 9. The individual plaintiffs, smokers of Marlboro Lights, allege in their second amended complaint that Philip Morris Companies, Inc., and its subsidiary, Philip Morris, Inc., have engaged in practices prohibited by our consumer protection statute by misleading the public into believing that their product, Marlboro Lights, would deliver lower levels of tar and nicotine, when the defendant companies knew the truth to be otherwise and, in fact, intentionally designed the product so that most smokers of Marlboro Lights would receive as much, or more, tar and nicotine than if they had smoked regular cigarettes. The allegations, set forth

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below, are quite specific. [Note 4] The plaintiffs seek, on behalf of themselves and all other purchasers of Marlboro Lights in Massachusetts,

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actual damages or, in the alternative, statutory damages under G. L. c. 93A. [Note 5] The plaintiffs also allege that the defendants' "willful and knowing" conduct and bad faith refusal to respond to the plaintiffs' demand for relief entitles them to a statutory award of multiple damages.

The plaintiffs filed a class certification motion pursuant to G. L. c. 93A, § 9 (2), that portion of our consumer protection statute allowing persons who have been injured by an unfair or deceptive act or practice to pursue a class action "if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons." [Note 6] After a hearing, a judge in the Superior Court certified a class consisting of purchasers of Marlboro Lights in Massachusetts during the four

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years preceding the filing of the complaint. [Note 7] The defendants filed a petition under G. L. c. 231, § 118, first par., with a single justice of the Appeals Court, seeking interlocutory review of the certification order. The single justice decertified the class and granted the plaintiffs leave to appeal from her decision to a panel of the Appeals Court. We granted the plaintiffs' application for direct appellate review. For reasons that follow, we now affirm the order of the Superior Court judge granting class certification. We shall first set forth, in some detail, the facts alleged, then deal with two procedural issues, and finally decide the certification issue. [Note 8]

1. The plaintiffs' second amended complaint alleges the following facts. Since 1971, the descriptor "Lights" and the words "LOWERED TAR AND NICOTINE" have appeared on every pack of Marlboro Lights sold in Massachusetts. "Light" cigarettes are generally defined as cigarettes containing between

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seven and fifteen milligrams of tar. The defendants have long known, however, that most smokers are likely to receive as much or more tar and nicotine from Marlboro Lights as they would receive from regular Marlboro (or other "full-flavored") cigarettes. [Note 9] (Careful attention should be paid to the latter footnote, and to the footnotes that follow in Part 1 of this opinion, as they set forth documented materials and other facts that bear on the defendants' level of knowledge with respect to the alleged lower tar and nicotine quality of Marlboro Lights and the defendants' approach to marketing the cigarettes based on that information.) The defendants in fact purposefully have designed Marlboro Lights to produce Federal Trade Commission smoking machine test (FTC test) [Note 10] results that enable, as a matter of Federal law, the defendants to promote their cigarettes to consumers as "lights" with "lower tar and nicotine." At the same time, the defendants took steps to ensure that Marlboro Lights would deliver to smokers amounts of tar and nicotine that are higher than those registered by the FTC test. The

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defendants achieved this through a variety of design modifications, including, but not limited to, the strategic placement of microscopic ventilation holes in or around cigarette filters; [Note 11] the modification of tobacco blend and weight, rod length and circumference; [Note 12] the use of reconstituted tobacco sheets or expanded tobacco; [Note 13] and the increase of smoke pH level [Note 14] through the use of chemical additives and processes such as

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ammoniation. [Note 15] The defendants conducted their own internal tests to ensure that the actual amounts of tar and nicotine delivered under normal use remained at higher levels than those registered by the FTC test. By marketing their cigarettes as "Marlboro Lights," and branding them with the label "LOWERED TAR AND NICOTINE," the defendants intended to create an impression in the minds of customers that the cigarettes were "healthier" than regular cigarettes, thereby promoting the illusion of decreased tar and nicotine deliveries, in full awareness that Marlboro Lights would (as they were designed to) continue to deliver addictive levels of tar and nicotine. According to the plaintiffs, the defendants exploited their knowledge of the shortcomings of the FTC test method for measuring tar and nicotine levels in Marlboro Lights as part of their strategy to continue to increase sales and market shares, while concealing this information from the consumers. The plaintiffs characterize the defendants' conduct as a "campaign of deception and omission on Massachusetts consumers which persists to this day." [Note 16]

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2. We next take up two procedural issues. The parties argue over the role of the single justice of the Appeals Court in considering the judge's order granting class certification. The plaintiffs contend that only a panel of the Appeals Court can rule on the merits of a class certification because an order by a single justice vacating class certification would (at least in a case like this) be tantamount to the single justice making a final determination of the case -- a matter usually reserved to a panel. The defendants contend that a class certification order is simply an interlocutory order, like any other interlocutory order, that may be reviewed on its merits under G. L. c. 231, § 118, first par. The issue need not be decided. Both parties want the propriety of the certification order decided by an appellate panel. The single justice of the Appeals Court appropriately certified the correctness of her ruling to a panel of the Appeals Court, and, as noted, we granted direct appellate review. The matter, therefore, is properly before an appellate panel for disposition.

3. There is also disagreement between the parties over the order being reviewed -- is it that of the motion judge or that of the single justice. The authority of the single justice on petitions arising under G. L. c. 231, § 118, first par., is "plenary, with the result that [the single justice's] order will be reviewed [by a panel] on appeal as if it were an identical order by the trial judge considering the matter in the first instance." Jet-Line Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988). See Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412 (1996); Thorn Transit Sys. Int'l,

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Ltd. v. Massachusetts Bay Transp. Auth., 40 Mass. App. Ct. 650, 652 (1996); Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 395 (1994); Demoulas v. Demoulas Super Mkts., Inc., 33 Mass. App. Ct. 939, 940 (1992). The essential legal question for the reviewing court will be "whether the single justice abused [her] discretion by entering an order without having a supportable basis for doing so." Id., quoting Highland Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 240 (1988). Answering that question, however, requires examination of the trial judge's order. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000) ("While the focus of the petition should be on whether the single justice of the Appeals Court erred, the resolution of that inquiry might require [a reviewing court] to look indirectly at the underlying order of the judge in the trial court, to see whether there was an abuse of discretion or error of law when evaluating the competing interests and issuing the [relevant] order . . ."). The single justice is not a fact finder and must accept any relevant facts found by the judge when those facts have support in the record. Considerable deference is also required on the part of the single justice to determinations by the judge, especially where those determinations involve an exercise of discretion. "In most cases, based on the deference normally accorded determinations by the judge who heard the matter in the first instance, the single justice will decline to act on an application for relief under G. L. c. 231, § 118, first par., that does not disclose clear error of law or abuse of discretion." Jet-Line Servs., Inc. v. Selectmen of Stoughton, supra. As to a certification order like the one before us, where the judge in the Superior Court has (as we shall subsequently discuss) broad discretion in making a determination, we examine the single justice's decision to determine whether it is legally correct (including whether discretion has been abused), bearing in mind that the Superior Court judge's order should ordinarily not be overturned if it is factually supported and unaffected by clear error of law. The analysis of whether the single justice has abused her discretion, therefore, requires examination of the foundational order of the trial court and the merits of the case for certification presented to the judge. See generally Planned Parenthood League of Mass., Inc.

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v. Operation Rescue, 406 Mass. 701, 706, 709 n.7 (1990). We now turn to those merits.

4. The standards governing certification of a G. L. c. 93A class action require findings that "the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated"; the putative class representation "adequately and fairly represents such other persons"; and the putative class representative brings "the action on behalf of himself and such other similarly injured and situated persons." G. L. c. 93A, § 9 (2). The statutory language differs in significant respects from that of Mass. R. Civ. P. 23, 365 Mass. 767 (1974). See Baldassari v. Public Fin. Trust, 369 Mass. 33, 40 (1975). A class action may be maintained under rule 23 (a), only if findings are made that: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Rule 23 (b) further requires findings that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." A judge deciding a motion under rule 23 has broad discretion whether to grant class status. We have observed that "[t]he standard defies mathematical precision, and our cases reflect that fact." Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 85 (2001), and cases cited.

Although the requirements of rule 23 (a) provide a "useful framework for an analysis," we have cautioned a judge deciding a motion for class certification under G. L. c. 93A to avoid equating the similarity requirements of rule 23 (a) with requirements of § 9 (2) that the parties seeking certification are "similarly situated" and have suffered a "similar injury" as members of the class they seek to represent. Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605 (1985). A judge possesses "a degree of discretion" in this matter, id., but when the judge is deciding a certification request under § 9 (2), the judge must bear in mind " 'a pressing need for an effective private remedy'

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for consumers, and that 'traditional technicalities are not to be read into the statute in such a way as to impede the accomplishment of substantial justice.' " Id. at 605-606, quoting Baldassari v. Public Fin. Trust, supra at 40-41. Even under rule 23, a party moving for class certification need only provide "information sufficient to enable the motion judge to form a reasonable judgment" that certification requirements are met. Weld v. Glaxo Wellcome Inc., supra at 87, citing Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976).

The judge certified a class consisting of purchasers of Marlboro Lights in Massachusetts during the four years preceding the filing of the complaint. His memorandum of decision reflects findings that the traditional criteria set forth in rule 23 (a) were satisfied and, further, that the asserted claim presented common questions of fact and law that make it appropriate for class certification. Implicit in the judge's decision was his finding that, if the plaintiffs' allegations proved true, all of the members of the certified class would have suffered a similar injury that would most effectively be redressed through a G. L. c. 93A consumer class action. In order to ensure that the prosecution of the case focused exclusively on the conduct of the defendants, and not on the smoking behavior of the class plaintiffs, the judge expressly restricted the plaintiffs' theories of actual damages to those "which do not rely upon individual proof." [Note 17]

The judge's conclusion that the plaintiffs' claim warrants certification as a consumer class action is amply supported by the record. The claims of the plaintiffs and members of the purported class (estimated to number in the hundreds of thousands) derive from a common course of conduct on the part of the defendants and present the identical issue -- whether the defendants misrepresented material information concerning the

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design, function, marketing, toxicity, and tar and nicotine yields of Marlboro Lights and, in doing so, violated G. L. c. 93A, §§ 2 and 9. The plaintiffs are similarly situated to other consumers of Marlboro Lights, and, because the injury claimed is an economic, and not a personal, injury, all have been similarly injured. Were there to be individual trials (a highly unlikely scenario due to the lack of economic incentive), the common aspects of the defendants' conduct would become a predominant aspect of each trial. Considerations of delay, high costs, and arbitrary results provide further support for the appropriateness of class certification. We conclude that a class action is not only an appropriate method to resolve the plaintiffs' allegations, but, pragmatically, the only method whereby purchasers of Marlboro Lights in Massachusetts can seek redress for the alleged deception. See Weld v. Glaxo Wellcome Inc., supra at 93.

The heart of the defendants' position, and that adopted by the single justice of the Appeals Court, may be summarized as follows. In order to recover on a class action claim, the plaintiffs need to do more than merely establish that the defendants falsely advertised Marlboro Lights as "lowered tar and nicotine" and that the members of the class purchased the cigarettes. The defendants contend that a successful class action claim demands proof that the deceptive advertising caused each member of the class actual harm. Because, as conceded by the plaintiffs, some smokers of Marlboro Lights did in fact receive "lowered tar and nicotine," the plaintiffs have no chance of demonstrating that every class member was injured. The defendants further posit that whether or not the advertising was deceptive under G. L. c. 93A depends on whether or not a smoker reaped the benefits of a lowered tar and nicotine cigarette which, in turn, varied according to how each individual smoked the cigarette and even why the "light" cigarette was chosen by each smoker over a full-flavored cigarette. Thus, to some smokers, there was no reduced value and no deceptive advertising. The defendants contend that there can be no finding of deceptive advertising with respect to those members of the putative class who received lowered tar and nicotine because, in the words of the single justice, they "got what the advertising promised." Because these individualized issues of causation and injury go to the

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core of the plaintiffs' G. L. c. 93A claim, the defendants maintained, and the single justice concluded, they would overwhelm any common issues with respect to the defendants' conduct. This reasoning and ultimate conclusion are incorrect.

We reject the proposition that the purchase of an intentionally falsely represented product cannot be, by itself, an ascertainable injury under our consumer protection statute. Whether conduct is deceptive is initially a question of fact, to be answered on an objective basis and not by the subjective measure argued by the defendants. See Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 51 (1979); Commonwealth v. AmCan Enters., Inc., 47 Mass. App. Ct. 330, 335 (1999). A successful G. L. c. 93A action based on deceptive acts or practices does not require proof that a plaintiff relied on the representation, see Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975), or that the defendant intended to deceive the plaintiff, see Swanson v. Bankers Life Co., 389 Mass. 345, 349 (1983), or even knowledge on the part of the defendant that the representation was false. See Slaney v. Westwood Auto, Inc., supra. Although our cases offer no static definition of the term "deceptive," we have stated that a practice is "deceptive," for purposes of G. L. c. 93A, "if it 'could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have acted.' " Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 777 (1980), quoting Lowell Gas Co. v. Attorney Gen., supra. In the same vein, we have stated that conduct is deceptive if it possesses "a tendency to deceive." Leardi v. Brown, 394 Mass. 151, 156 (1985), quoting Trans World Accounts, Inc. v. Federal Trade Comm'n, 594 F.2d 212, 214 (9th Cir. 1979). "In determining whether an act or practice is deceptive, 'regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which [the act or practice] might reasonably be expected to have upon the general public.' " Leardi v. Brown, supra, quoting P. Lorillard Co. v. Federal Trade Comm'n, 186 F.2d 52, 58 (4th Cir. 1950).

Our cases, and those of the Appeals Court, also establish that advertising need not be totally false in order to be deemed deceptive in the context of G. L. c. 93A. See Commonwealth v. AmCan Enters., Inc., supra at 336 ("the question is whether

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[use of words 'yellow pages' and 'walking fingers'] in the context of the solicitation as a whole was misleading"). The criticized advertising may consist of a half truth, or even may be true as a literal matter, but still create an over-all misleading impression through failure to disclose material information. See Urman v. South Boston Sav. Bank, 424 Mass. 165, 168 (1997); Underwood v. Risman, 414 Mass. 96, 99-100 (1993); Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 78 (1994) ("One can violate § 2 of G. L. c. 93A . . . by failing to disclose to a buyer a fact that might have influenced the buyer to refrain from the purchase").

The Legislature, in G. L. c. 93A, § 2 (b), has mandated that Massachusetts courts, in construing which acts are deceptive, must be guided by interpretations of that term as found in the analogous Federal Trade Commission Act (FTC Act), 15 U.S.C. § 45 (a) (1). Historically, the standard test for deception prohibited by the FTC Act was whether the act or practice had the capacity or tendency to deceive the general public, rather than whether it was relied on or resulted in actual deception. See, e.g., Federal Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374, 391-392 (1965); American Home Prods. Corp. v. Federal Trade Comm'n, 695 F.2d 681, 687 (3d Cir. 1982); Exposition Press, Inc. v. Federal Trade Comm'n, 295 F.2d 869, 872 (2d Cir. 1961), cert. denied, 370 U.S. 917 (1962). See also Beneficial Corp. v. Federal Trade Comm'n, 542 F.2d 611, 618 n.11 (3d Cir. 1976), cert. denied, 430 U.S. 983 (1977), quoting 1 Callman, Unfair Competition and Trademarks § 19.2 (a) (1) at 341-344 (1950) ( "The general public has been defined as 'that vast multitude which includes the ignorant, [the] unthinking, and the credulous, who, in making purchases, do not stop to analyze but too often are governed by appearances and general impressions' "). The FTC later clarified that test as follows: "if, first, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material." Matter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984). This standard, more difficult to satisfy because it depends on the likely reaction of a reasonable consumer rather than an ignoramus, appears to have been applied

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by Federal courts ever since. See, e.g., Federal Trade Comm'n v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994), cert. denied, 514 U.S. 1083 (1995); Kraft, Inc. v. Federal Trade Comm'n, 970 F.2d 311, 314 (7th Cir. 1992), cert. denied, 507 U.S. 909 (1993); Southwest Sunsites, Inc. v. Federal Trade Comm'n, 785 F.2d 1431, 1436 (9th Cir.), cert. denied, 479 U.S. 828 (1986). Although we need only be guided by, and not strictly adhere to, interpretations of the term "deceptive" under Federal law, what has been said in the above Federal cases comports in substance with what has been said in our own: an advertisement is deceptive when it has the capacity to mislead consumers, acting reasonably under the circumstances, to act differently from the way they otherwise would have acted (i.e., to entice a reasonable consumer to purchase the product). [Note 18]

If, as alleged, the defendants intentionally labeled their cigarettes "Lights" with "lowered tar and nicotine" in order to establish in the individual and collective consumer consciousness the concept that Marlboro Lights are more healthful (or, at least, less unhealthful) to smoke than regular cigarettes, and thereby increase the defendants' market share of cigarette sales,

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with full knowledge that most Marlboro Lights smokers would not in fact receive the promised benefits of "lowered tar and nicotine," then there can be no question that the sales of Marlboro Lights occurred in circumstances that make the sales deceptive under G. L. c. 93A. No individual inquiries concerning each class member's smoking behavior are required to determine whether the defendants' conduct caused compensable injury to all the members of the class -- consumers of Marlboro Lights were injured when they purchased a product that, when used as directed, exposed them to substantial and inherent health risks that were not (as a reasonable consumer likely could have been misled into believing) minimized by their choice of the defendants' "light" cigarettes. [Note 19] The plaintiffs need not prove individual physical harm in order to recover for the defendants' deception. Nor need the plaintiffs show that each individual consumer relied on the defendants' false promise when purchasing Marlboro Lights. See Nei v. Burley, 388 Mass. 307, 313 (1983). Neither an individual's smoking habits nor his or her subjective motivation in purchasing Marlboro Lights bears on the issue whether the advertising was deceptive.

The plaintiffs' claims that most smokers would not get any

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benefit by way of lowered tar and nicotine are pragmatically driven. So far as we are aware, the actual level of tar and nicotine received by an individual smoker is a factor that cannot be measured by any test. [Note 20] In this regard, claiming, as the defendants do, that individual proof is necessary, or that benefits will vary widely between smokers, raises a specious issue that, if followed to conclusion, would eviscerate G. L. c. 93A as a remedy to abate this deceptive advertising. [Note 21] Further, on the plaintiffs' theory of economic damages, which will be described next, the market price for Marlboro Lights was higher than it would have been had the cigarettes been honestly advertised and, therefore, all purchasers of the product paid more because of the deception.

What has been said above disposes of the class certification issue. [Note 22] We take this opportunity to comment on the nature of damages under G. L. c. 93A. The plaintiffs allege that, as a

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result of the defendants' deceptive advertising, all consumers of Marlboro Lights in Massachusetts paid more for the cigarettes than they would have otherwise paid. The plaintiffs expect to offer proof at trial that the amount that all purchasers of Marlboro Lights paid for the cigarettes exceeded their true market value (what purchasers would have paid had they known the truth). If they succeed in their proof, the plaintiffs argue that the correct model for measuring actual damages is the difference between the price paid by the consumers and the true market value of the "misrepresent[ed]" cigarettes they actually received. (Thus, the exact amount of actual damages may be determined by multiplying the number of cigarettes sold, in the years defined by the certification order, by the difference between the price paid and actual fair market value.) This is a variation on the traditional "benefit of the bargain" rule that awards a defrauded party the monetary difference between the actual value of the product at the time of purchase and what its value would have been if the representations had been true. See Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982); Rice v. Price, 340 Mass. 502, 507 (1960). We agree that "the benefit of the bargain" damages, if proved with reasonable certainty, would be appropriate in this case. See GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass. App. Ct. 293, 296 (1997); Chamberlayne School & Chamberlayne Jr. College v. Banker, 30 Mass. App. Ct. 346, 355 (1991). [Note 23]

The defendants suggest that, regardless of whether or not the advertising of Marlboro Lights was unlawful under G. L. c. 93A, the plaintiffs are in no worse economic position than they would have been had they not chosen to smoke Marlboro Lights over regular Marlboro cigarettes. They point to the apparently uncontested fact that Marlboro Lights have always been priced exactly the same in Massachusetts as regular Marlboro

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cigarettes. Logic, on the other hand, suggests that, all other things being equal, a truly low tar and nicotine cigarette would have economic worth greater than a comparable regular cigarette, due to the added value of an inherently "safer" cigarette. Whether plaintiffs ultimately will be successful in proving actual damages is a matter that need not be resolved at the certification stage.

In the event that the plaintiffs are unsuccessful in their attempt to prove actual damages, however, they will be entitled to recover statutory damages under G. L. c. 93A, § 9 (3) ("if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater"). As this court held in Leardi v Brown, 394 Mass. 151, 160 (1985), G. L. c. 93A "create[s] a legal right, the invasion of which, without more, constitutes an injury," and "under circumstances where there has been an invasion of a legally protected interest, but no harm for which actual damages can be awarded . . . the statute provides for the recovery of minimum damages in the amount of [twenty-five dollars]."

The defendants refer to a recent decision of the Appeals Court, Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309 (2004), to support their contention that some monetary loss must be proved before even minimum damages of twenty-five dollars may be awarded. See id. at 321. What was said by the Appeals Court in the Lord decision does not help the defendants. There the defendant insurer was determined to have violated a legal obligation under G. L. c. 93A, § 2, by failing to give the plaintiff timely notice that his automobile coverage had been suspended for noncompliance with the inspection requirement. Id. at 317. The plaintiff had received prior notice that his policy would be canceled for nonpayment of premiums. The trial judge found, as did the jury, that the absence of timely notice was not the reason for the plaintiff's failure to have the vehicle inspected (there was evidence that the plaintiff already knew of the inspection requirement and had acknowledged it in writing), nor was it the reason for his subsequent losses incurred in an automobile accident. The judge nevertheless awarded the plaintiff statutory damages of twenty-five dollars, plus attorney's fees and costs. Id. at 317-318. The Appeals Court vacated the award based on

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its conclusion that "the Legislature, in enacting and amending G. L. c. 93A, § 9, did not intend to confer on plaintiffs who have suffered no harm the right to receive a nominal damage award which will in turn entitle them to a sometimes significant attorney's fee recovery." Id. at 321-322. We agree with this observation. It states nothing more than what our own decisions have made perfectly clear -- causation is a required element of a successful G. L. c. 93A claim. See, e.g., Massachusetts Farm Bur. Fed'n, Inc. v. Blue Cross of Mass., Inc., 403 Mass. 722, 730 (1989) ("In the absence of a causal relationship between the alleged unfair acts and the claimed loss, there can be no recovery"); International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 850 (1983) ("plaintiff must show . . . a causal connection between the deception and the loss").

We do not agree, however, with language of the Appeals Court in the Lord decision ostensibly limiting the reach of our holding in Leardi v. Brown, supra at 159-161, to landlord-tenant actions. See Lord v. Commercial Union Ins. Co., supra at 323 ("To the extent that Leardi v. Brown, [supra], may suggest otherwise, we believe that it was intended to be limited to the peculiar facts presented"). Our decision in Leardi emphasized that "G. L. c. 93A is a 'statute of broad impact,' which forms a 'comprehensive substantive and procedural business and consumer protection package.' " Id. at 159, quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693 (1975). Significantly, the court construed the term "injury," in the context of G. L. c. 93A, to denote "an invasion of a legally protected interest." Leardi v. Brown, supra at 160. Construction of the term was deliberate, framed after careful consideration of the 1979 amendment to the statute, St. 1979, c. 406, § 1 (deleting requirement of § 9 [1] that plaintiffs show some loss of "money or property, real or personal" and adding expansive language providing a right of action to "[a]ny person . . . who has been injured by another person's use or employment of any method, act or practice declared to be unlawful"); consultation of well-respected legal authorities and treatises construing the term "injury"; decisions by the Supreme Court of the United States; and consumer protection statutes in force in other jurisdictions, as well as State court decisions interpreting those statutes. See id. at 158-161.

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The circumstances in the Leardi case, in which members of the plaintiff class challenged a landlord's efforts to mislead tenants by deceptive use of language in a lease, were essentially no different from the case before us. As fully explained above, the deceptive advertising, as alleged by the plaintiffs in this case, if proved, effected a per se injury on consumers who purchased the cigarettes represented to be lower in tar and nicotine. It follows that, if the violations of G. L. c. 93A alleged by the plaintiffs are proved, all members of the class of purchasers of Marlboro Lights in Massachusetts will have been injured (regardless of whether some smokers actually received lower tar and nicotine). This is so because all purchased (and, presumably, smoked) a product that was deceptively advertised, as a matter of law, because it was falsely labeled or, at least, created the over-all misleading impression that all smokers would receive "lowered tar and nicotine." Thus, all will be entitled to statutory damages, without regard to whether the plaintiffs are successful in establishing that consumers were overcharged for the deceptively advertised cigarettes. See Ciardi v. F. Hoffmann-LaRoche, Ltd., 436 Mass. 53, 60 n.14 (2002). In citing to the Lord case, the defendants, once again, have confused issues of whether the plaintiffs will be able to prove actual damages with whether they have been injured by the defendants' allegedly unlawful conduct. Difficult issues with respect to determining the appropriate amount of actual or statutory damages to be awarded in a class action, or potential difficulties with the distribution of the aggregate damages award, do not preclude class certification when all other requirements are met. See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 92 (2001).

5. We affirm the order of certification by the judge in the Superior Court of a class consisting of purchasers of Marlboro Lights cigarettes in Massachusetts during the four years preceding the filing of the plaintiffs' original complaint. [Note 24]

Order affirmed.

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CORDY, J. (dissenting, with whom Ireland and Cowin, JJ., join). This is a case about the propriety of a class certification decision. The issue is not, as the court puts it, "whether the marketing of Marlboro Lights as 'light' cigarettes that deliver 'lower tar and nicotine' may be challenged in a class action" under G. L. c. 93A, ante at 382; of course it may (emphasis added). The issue is whether this class of plaintiffs may bring that challenge. The proper focus in this case is, therefore, the constituency of the plaintiff class.

The plaintiff class certified by the motion judge consists of "purchasers of Marlboro Lights cigarettes in Massachusetts during the four years preceding the filing of [the plaintiffs' original] complaint." It is this description of the plaintiff class that must meet the requirements for certification under G. L. c. 93A. The procedure for these consumer class actions is governed by G. L. c. 93A, § 9 (2). That section provides in relevant part:

"Any persons entitled to bring such action [Note Dissent-1] may, if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of himself and such other similarly injured and situated persons . . . ."

As the court states, ante at 391, and as the language of § 9 (2) itself makes clear, class certification depends on a showing that the defendants' deceptive practice caused "similar injury" to the members of the plaintiff class. G. L. c. 93A, § 9 (2). Accord Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605 (1985) (plaintiffs must allege that they are "similarly situated" and have suffered "similar injury").

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The requirement that the plaintiffs demonstrate an "injury" may not be shrugged off lightly. Rather, as this court has consistently held, the injury requirement is a fundamental aspect of G. L. c. 93A for both individual plaintiffs and plaintiff classes. It is insufficient for a plaintiff to show merely that a trade practice is deceptive; rather, G. L. c. 93A "requires an injury before an award of even nominal damages is justified." Leardi v. Brown, 394 Mass. 151, 165 (1985). [Note Dissent-2] The difficulty for the plaintiffs in this case is that some members of the plaintiff class, as the plaintiffs concede, actually did receive lower levels of tar and nicotine from Marlboro Lights. For simplicity, I will refer to the group of smokers who actually received lower levels of tar and nicotine as the "low-tar group," and those smokers who actually received equal or higher levels of tar and nicotine as the "high-tar group." In the words of the Appeals Court's single justice, the low-tar group "got what the advertising promised," and, as the court concludes, the members of the low-tar group "have not suffered the 'injury' of higher tar and nicotine." [Note Dissent-3] Ante at 398 n.21. How, then, can a class meet the "similar injury" requirement when some of its members (the low-tar group) suffered no injury at all?

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The court answers this question by pointing to the pragmatic considerations surrounding the class certification decision. Specifically, the court concludes that certification is appropriate in this case because "the members of the class who have not suffered the 'injury' of higher tar and nicotine are both very few in number and impossible to identify." Ante at n.21. I agree with the court that, in principle, class certification should not be impeded by the presence of a de minimis number of uninjured class members who are difficult to identify with specificity. Nevertheless, I do not think that, on the record in this case, it is possible to form a reasonable judgment that the low-tar group is made up of "only a very few smokers," who are "impossible to identify." Ante at n.21.

On a motion for class certification, the "plaintiffs bear the burden of providing information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements [for certification]." Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87 (2001). It is therefore the plaintiffs' burden to provide information sufficient to permit the reasonable conclusion that the class as a whole is "similarly injured," despite the presence of the uninjured members of the low-tar group; in other words, if the plaintiffs contend that the low-tar group is only a very few smokers, it is the plaintiffs' burden to provide information concerning the size of the low-tar group, and if the plaintiffs claim that members of the low-tar group are difficult to identify, it is their burden to provide information to that effect.

The plaintiffs presented no evidence before the motion judge concerning how many members of the proposed plaintiff class may have received lower levels of tar and nicotine. Rather, the plaintiffs' allegations and evidence focus almost exclusively on "the average smoker" (or, more generally, "the smoker") and cigarettes "smoked under normal use." The plaintiffs' exhibits do make a single passing reference to the percentage of smokers who block cigarette ventilation holes -- an action that can

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increase the tar and nicotine yield of a cigarette [Note Dissent-4] -- but the study referenced, which concluded that only fifty-eight per cent of cigarettes showed signs of significant ventilation "hole-blocking," [Note Dissent-5] actually suggests that the low-tar group is fairly large (i.e., those smokers who smoked the other forty-two per cent of cigarettes). In sum, there was not sufficient information in the record to permit the motion judge reasonably to conclude that the low-tar group was so small that the class could meet the "similar injury" requirement. [Note Dissent-6]

Likewise, it is not possible reasonably to conclude from the information submitted by the plaintiffs that the members of the low-tar group are "impossible to identify." The court may be correct to point out that no objective scientific test can measure how much tar and nicotine an individual smoker has ingested. See ante at 398. Nevertheless, the plaintiffs have plainly alleged that the increased levels of tar and nicotine ingested by class members were in large part the result of a number of behavioral factors, namely smokers' tendency to cover ventilation holes near the cigarette's filter and smokers' tendency to increase the frequency and volume of puffs to compensate for lower nicotine levels. [Note Dissent-7] Plainly, smokers will be able to provide information

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concerning how they smoked Marlboro Lights cigarettes. It is therefore not impossible to identify smokers in the uninjured low-tar group and to exclude them from the class. [Note Dissent-8]

In sum, the crux of my disagreement with the court concerns the sufficiency of the information presented by the plaintiffs in this case. Limited to the record before the motion judge, I do not think it is possible reasonably to conclude that the low-tar group is either so small as to be de minimis, or so unidentifiable as to permit class certification. By certifying a class that includes uninjured members, the motion judge effectively permitted precisely what we have criticized: a "purely 'vicarious suit[] by self-constituted private attorneys-general.' " Leardi v. Brown, 394 Mass. 151, 161 (1985), quoting Baldassari v. Public Fin. Trust, 369 Mass. 33, 46 (1975).

I turn briefly to the court's treatment of the theory of injury actually pressed by the plaintiffs below, primarily to register a point of agreement with the court. The motion judge described the plaintiffs' theory as follows: "Plaintiffs may show a causal relationship between what they paid for Marlboro Lights cigarettes and what they would have paid if the defendants had

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not incurred the expense of false advertising." [Note Dissent-9] The single justice restated the plaintiff's theory: "because of [Philip Morris's misrepresentations], cigarette purchasers were misled to a willingness to pay more for Marlboro Lights than would have been so, had the cigarette purchasers known [the truth]." Insofar as this theory purports to be a theory of injury, the theory is essentially a variant of the "fraud on the market" theory recognized in Federal securities cases, [Note Dissent-10] under which the purchaser of a stock is entitled to the presumption that the purchase was made in reliance on all material information known to the market as a whole. See, e.g., Basic, Inc. v. Levinson, 485 U.S. 224, 242 (1988). The court explicitly states that its opinion in this case does not adopt a " 'fraud on the market' type theory," ante at n.23, and I agree that it would be imprudent to adopt the fraud on the market doctrine in a consumer products case, when no other State has done so, [Note Dissent-11] and in the face of numerous critiques of the theory's validity. [Note Dissent-12]

Nevertheless, because, like the Appeals Court's single justice,

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I would conclude that class certification in this case was improper where the plaintiffs failed to meet their "burden of providing information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements [for certification]," Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87 (2001), I respectfully dissent.