138 Nev., Advance Opinion 55
IN THE SUPREME COURT OF THE STATE OF NEVADA
R.J. REYNOLDS TOBACCO COMPANY, No. 83724
A FOREIGN CORPORATION,
INDIVIDUALLY AND AS SUCCESSOR-
BY-MERGER TO LORILLARD
TOBACCO COMPANY AND AS :
SUCCESSOR-IN-INTEREST TO THE P L E
UNITED STATES TOBACCO
BUSINESS OF BROWN &
WILLIAMSON TOBACCO
CORPORATION, WHICH IS THE
SUCCESSOR-BY-MERGER TO THE
AMERICAN TOBACCO COMPANY,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
NADIA KRALL, DISTRICT JUDGE,
Respondents,
and
SANDRA CAMACHO, INDIVIDUALLY;
ANTHONY CAMACHO,
INDIVIDUALLY; PHILIP MORRIS USA,
INC., A FOREIGN CORPORATION;
LIGGETT GROUP, LLC, A FOREIGN
CORPORATION; AND ASM
NATIONWIDE CORPORATION, D/B/A
SILVERADO SMOKES & CIGARS, A
DOMESTIC CORPORATION,
Real Parties in Interest.
Original petition for a writ of mandamus challenging a district
court order granting reconsideration of a prior order dismissing a party in
a civil action.
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See.
Petition denied.
Bailey Kennedy and Dennis L. Kennedy, Joseph A. Liebman, and Rebecca
L. Crooker, Las Vegas; King & Spalding LLP and Val Leppert, Atlanta,
Georgia; King & Spalding LLP and Ursula Marie Henninger, Charlotte,
North Carolina,
for Petitioner.
Claggett & Sykes Law Firm and Sean K. Claggett, Matthew S. Granda, and
Micah S. Echols, Las Vegas; Kelley Uustal and Kimberly L. Wald, Michael
A. Hersh, and Fan Li, Fort Lauderdale, Florida,
for Real Parties in Interest Sandra Camacho and Anthony Camacho.
Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg,
J. Christopher Jorgensen, and Abraham G. Smith, Las Vegas,
for Real Party in Interest Liggett Group, LLC.
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and D. Lee Roberts, Jr.,
Las Vegas,
for Real Parties in Interest Philip Morris USA, Inc., and ASM Nationwide
Corporation.
BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
OPINION
By the Court, CADISH, J.:
Petitioner challenges a district court order reinstating a
deceptive trade practices complaint, arguing that real parties in
interest/plaintiffs lack standing to bring that claim against petitioner
because they never used petitioner’s products and thus cannot show that
they are victims of consumer fraud who sustained damages from petitioner’s
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allegedly deceptive trade practices under NRS 41.600(1). As NRS 41.600
creates a cause of action for victims of consumer fraud, which includes
deceptive trade practices under the Nevada Deceptive Trade Practices Act
(NDTPA), and nothing in the NDTPA limits consumer fraud victims to only
those who used a manufacturer’s product, we conclude that the district
court correctly granted reconsideration and reinstated the complaint, as its
prior order granting petitioner’s motion to dismiss rested on an overly
narrow interpretation of NRS 41.600(1). We further conclude that plaintiffs
pleaded sufficient facts, including that they were directly harmed by
petitioner’s false and misleading advertising, to bring an NDTPA claim
against petitioner. Thus, mandamus relief is not warranted, and we deny
the petition.
FACTS AND PROCEDURAL HISTORY
Real party in interest Sandra Camacho began smoking
cigarettes in 1964 and continued to smoke until 2017. She smoked L&M
cigarettes, which were manufactured by real party in interest Liggett
Group, LLC, and Marlboro and Basic cigarettes, which were manufactured
by real party in interest Philip Morris USA, Inc. Sandra concedes that she
did not purchase or use any of petitioner R.J. Reynolds Tobacco Company’s
products. In March 2018, Sandra was diagnosed with laryngeal cancer
caused by her cigarette use. Sandra and her husband, real party in interest
Anthony Camacho, filed suit against Liggett, Philip Morris, and Reynolds.
The Camachos raised several claims, including fraud and products-liability-
based claims against Philip Morris and Liggett, and a civil conspiracy claim
against all three cigarette manufacturers alleging that they “acted in
concert to accomplish an unlawful objective for the purposes of
harming...Sandra,” namely by concealing, omitting, or otherwise
misrepresenting the health hazards of cigarettes in various public
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statements and marketing materials. The Camachos also asserted a claim
for violating the NDTPA, alleging that Reynolds and the other defendants
knowingly made false representations in their advertisements.
Reynolds filed a motion to dismiss the two claims against it. It
argued that although the Camachos labeled their claims as a violation of
the NDTPA and civil conspiracy, the claims were effectively products-
liability claims. Reynolds asserted that those claims failed as a matter of
law because product use “is a fundamental requirement” of a products-
liability claim, and Sandra did not use a Reynolds product. Similarly,
Reynolds contended that the Camachos’ NDTPA claim failed, as there was
“no connection between Reynolds’ alleged deceptive trade practices as they
relate to the health risk of its particular products and |Sandra’s] alleged
laryngeal cancer” because Sandra never used a Reynolds product.
The Camachos opposed the motion to dismiss, arguing that
under Nevada law neither a civil conspiracy claim nor a deceptive trade-
practice claim includes a product-use requirement. They contended that
the cases Reynolds relied on in support of a product-use requirement
involved claims for negligence, strict products liability, or fraud, as opposed
to an NDTPA- or civil-conspiracy-based theory of liability. Regarding the
NDTPA claim specifically, the Camachos asserted that they adequately
pleaded causation, as they alleged that but for cigarette manufacturers
engaging in “concerted actions” to misrepresent the health risks of smoking,
Sandra would not have continued to smoke cigarettes. The district court
granted Reynolds’ motion to dismiss, concluding that Sandra was not a
consumer fraud victim under NRS 41.600(1) because she did not use a
Reynolds product.
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The Camachos filed a motion for reconsideration, asserting that
a deceptive trade practice under the NDTPA includes a _ business’s
knowingly false representation regarding the product for sale and that a
sale under the NDTPA includes an attempt to sell. Because a sale includes
an attempt to sell, and an attempt to sell implies a failure to sell, the
Camachos argued that the district court clearly erred by reading a product-
use requirement into the NDTPA. Because NRS 41.600(1) confers standing
on victims of consumer fraud, which includes victims of deceptive trade
practices as defined by the NDTPA, the Camachos asserted they pleaded
viable claims against Reynolds, even though Sandra never used a Reynolds
product.
The district court granted reconsideration over Reynolds’
opposition, concluding that the earlier dismissal order was clearly
erroneous because it added an atextual product-use requirement or legal-
relationship requirement into the NDTPA. It also pointed to Nevada
precedent stating “that an NDTPA claim is easier to establish than common
law fraud.” Because the court reinstated the NDTPA claim, it reinstated
the derivative civil conspiracy claim. Reynolds now seeks mandamus relief
directing the district court to vacate its order granting reconsideration and
to reinstate the dismissal order. !
DISCUSSION
“The decision to entertain a petition for a writ of mandamus is
within our sole discretion.” Canarelli v. Eighth Judicial Dist. Court, 138
Nev., Adv. Op. 12, 506 P.3d 334, 337 (2022). While we may issue mandamus
‘Although labeled petition for writ of mandamus or prohibition,
Reynolds’ petition does not contain argument as to or actually seek a writ
of prohibition.
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“to compel an act that the law requires” or to correct a lower court’s “clear
and indisputable’ legal error,” Archon Corp. v. Eighth Judicial Dist. Court,
133 Nev. 816, 819-20, 407 P.3d 702, 706 (2017) (quoting Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 384 (1953)), writ relief is not appropriate
where there is a “plain, speedy, and adequate remedy in the ordinary course
of law,” NRS 34.170, such as the right to appeal from a final judgment,
Archon Corp., 133 Nev. at 820, 407 P.3d at 706. However, even if traditional
mandamus is not appropriate, we may issue advisory mandamus “when the
issue presented is novel, of great public importance, and likely to recur.”
Archon. Corp., 133 Nev. at 822, 407 P.3d at 708 (quoting United States v.
Horn, 29 F.3d 754, 769 (1st Cir. 1994)). It should only issue where the legal
question presented is “likely of significant repetition prior to effective
review.” Id. at 822-23, 407 P.3d at 708 (quoting In re Bushkin Assocs., Inc.,
864 F.2d 241, 247 (1st Cir. 1989)).
Although traditional mandamus is inappropriate because, in
granting reconsideration, the district court essentially denied Reynolds’
NRCP 12(b)(5) motion to dismiss, and Reynolds can appeal from any
adverse final trial decision, see Smith v. Eighth Judicial Dist. Court, 118
Nev. 1343, 1344-45, 950 P.2d 280, 281 (1997) (observing that this court
generally will not consider writ petitions challenging orders denying
motions to dismiss), we exercise our discretion to entertain this petition
because the issue of whether a nonuser of a product may qualify as a victim
with standing to bring an NDTPA suit against a product manufacturer
presents a novel legal question of statewide importance requiring
clarification. Moreover, this issue in this matter implicates substantial
public-policy concerns regarding the scope of liability for deceptive trade
practices, and “[olur intervention is further warranted because district
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courts are reaching different conclusions on this very issue.” Ly/ft, Inc. v.
Highth Judicial Dist. Court, 137 Nev., Adv. Op. 86, 501 P.3d 994, 998 (2021).
The district court did not manifestly abuse its discretion in granting the
Camachos’ motion for reconsideration
While we ordinarily review a district court’s decision to grant or
deny a motion for reconsideration for an abuse of discretion, see AA Primo
Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197
(2010), we may only grant writ relief if the district court manifestly abused
its discretion, Round Hill Gen. Improv. Dist. v. Newman, 97 Nev. 601, 603-
04, 637 P.2d 534, 536 (1981). The district court “may reconsider a
previously decided issue if... the decision is clearly erroneous.” Masonry
& Tile Contractors Ass’n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev.
737, 741, 941 P.2d 486, 489 (1997).
As it did in district court, Reynolds contends that not only did
the Camachos fail to show that the dismissal order was clearly erroneous,
but also the dismissal order correctly applied the law.? It asserts that the
Camachos are not victims under NRS 41.600(1) because Sandra did not use
a Reynolds product and, thus, cannot show any direct harm from Reynolds’
allegedly deceptive trade practices. Moreover, Reynolds argues that the
Camachos’ attempted sale argument “misses the mark” because the
2Reynolds also argues that the Camachos’ motion for reconsideration
was untimely filed in violation of EDCR 2.24(b) (providing that a party
seeking reconsideration “must file a motion for such relief within 14 days
after service of written notice of the order or judgment”). However, EDCR
2.24(b) allows the district court to enlarge the time to file a motion for
reconsideration. Here, the district court acknowledged Reynolds’ timeliness
argument but concluded that it nonetheless retained the authority to
reconsider its prior decision under NRCP 54(b). Thus, we conclude that the
district court’s order implicitly enlarged the time to file a motion for
reconsideration under EDCR 2.24.
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Camachos failed to show how a person can be a victim of deceptive trade
practices if the defendant attempted, but ultimately failed, to sell the
product to the person. Alternatively, Reynolds contends that even if an
individual can be victimized by deceptive trade practices in ways other than
buying or using the product, the individual must show that he or she was
directly harmed, which the Camachos cannot do here. For the reasons
discussed below, we disagree.
We review questions of statutory interpretation de novo, “even
in the context of a writ petition.” Intl Game Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). When interpreting
a statute, we look to the statute’s plain language. Arguello v. Sunset
Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011). “Ifa statute’s
language is plain and unambiguous, we enforce the statute as written,
without resorting to the rules of construction.” Smith v. Zilverberg, 137
Nev. 65, 72, 481 P.3d 1222, 1230 (2021).
Under NRS 41.600(1), “any person who is a victim of consumer
fraud” may bring an action against the alleged perpetrator. Consumer
fraud includes “[a] deceptive trade practice” as defined by the NDTPA. NRS
41.600(2)(e). As relevant here, a deceptive trade practice occurs when a
business operator “[klnowingly makes a false representation as to the
characteristics, ingredients, uses, benefits, alterations or quantities of goods
or services for sale or lease.” NRS 598.0915(5) (emphasis added). “Sale’
includes any sale, offer for sale or attempt to sell any property for any
consideration.” NRS 598.094 (emphasis added).
The scope of the word “victim” under NRS 41.600(1) has been
disputed in other contexts, with courts consistently concluding that “a
‘victim of consumer fraud’ need not be a ‘consumer’ of the defendant’s goods
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