Full Opinion

Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 12, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ ANTHONY DUNN, et al., Plaintiffs - Appellees, v. Nos. 23-2180 & 23-2181 (D.C. No. 1:16-MD-02695-JB-LF) SANTA FE NATURAL TOBACCO (D. N.M.) COMPANY, INC., et al., Defendants - Appellants. ------------------------------ PUBLIC CITIZEN, et al., Amici Curiae. _________________________________ ORDER _________________________________ Before HOLMES, Chief Judge, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, ROSSMAN, and FEDERICO, Circuit Judges. * _________________________________ These matters are before the court on the Petition for Rehearing En Banc of Defendants-Appellees/Cross-Appellants (Petition) and the Response to Petition for Rehearing En Banc of Plaintiffs-Appellants/Cross-Appellees (Response). The Petition The Honorable Harris Hartz and the Honorable Joel M. Carson, III are recused * from this matter. Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 2 and Response were transmitted to all judges of the court who are in regular active service and who are not disqualified. A poll was requested and a majority of the non-disqualified active judges voted to deny rehearing en banc. Accordingly, the Petition is DENIED. Judges Tymkovich and Eid voted to grant en banc rehearing. Judge Tymkovich has filed a separate dissent from the denial of en banc rehearing, which is joined by Judge Eid. Entered for the Court Per Curiam 2 Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 3 23-2180/2181, Dunn v. Santa Fe Natural Tobacco Company TYMKOVICH, Circuit Judge, dissenting from denial of petition for rehearing en banc. Santa Fe Natural Tobacco Co. seeks rehearing en banc on two issues that are central to our circuit’s approach to class action lawsuits. First, how tightly class- action plaintiffs’ damages models must fit their theories of liability under Comcast Corp. v. Behrend, 569 U.S. 27 (2013). Second, whether our circuit’s current approach to class action administrative feasibility conflicts with the Rules Enabling Act and Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Because I am convinced the majority’s answers to both issues conflict with the respective Supreme Court precedents, I believe consideration by our full court is warranted. Santa Fe produces several lines of cigarettes that it markets under the Natural American Spirit brand. During the relevant period, it marketed Spirit cigarettes as “natural,” “organic,” and “additive-free” on packages and in advertisements. The cigarette packages included a disclaimer stating, “No additives in our tobacco does NOT mean a safer cigarette.” A group of plaintiffs sued Santa Fe for allegedly misleading consumers into believing Spirit cigarettes were safer than other cigarettes and charged a “premium” price for them. The plaintiffs asserted consumer-protection claims among other causes of action. Two theories of liability are relevant for this appeal. First, the plaintiffs raised a “safer-cigarette theory” under which Santa Fe’s description of the cigarettes as “natural” and “additive-free” allegedly misled consumers into believing that Spirits Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 4 are safer and healthier than competing cigarettes. Second, the plaintiffs raised a “menthol theory” which claimed Santa Fe misled consumers about the location of menthol in menthol Spirits. Santa Fe says it “manufactures menthol Spirits with additive-free tobacco and natural menthol in the filter.” PFR at 4. But during smoking, some menthol can migrate from the filter to the tobacco. The plaintiffs claim this mechanism deceived consumers who believed the “additive-free tobacco” label on menthol Spirits means the tobacco does not contain menthol from the filters. The plaintiffs sought to certify two categories of classes: (1) all consumers who purchased Spirit cigarettes in any of twelve states (safer-cigarette classes), and (2) anyone who purchased menthol Spirits in any of eight states (menthol classes). The core debate at certification was whether the classes satisfied the predominance requirement of Rule 23, which requires a plaintiff to show that “questions of law or fact common to the class members predominate over any questions affecting only individual members[.]” Fed. R. Civ. P. 23(b)(3). The district court certified the menthol classes but denied certification for the safe-cigarette classes. The parties cross-appealed that result. The majority opinion affirmed the certification of the menthol classes but reversed the denial of certification for the safe-cigarette classes. My partial dissent would have denied certification for both classes because the plaintiffs’ damages model does not fit their theory of liability for either class, as required by Comcast. Under Comcast, plaintiffs must show “that damages are capable of measurement on a classwide basis,” otherwise, “[q]uestions of individual damages calculations will 2 Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 5 inevitably overwhelm questions common to the class.” 569 U.S. at 34. As a result, “a model purporting to serve as evidence of damages . . . must measure only those damages attributable” to the theory of liability. Id. at 35. Here, the plaintiffs’ liability theory hinges on specific interpretations of the terms “Natural” and “100% Additive-Free.” Namely, that those terms indicate the cigarettes are less harmful or, for the menthol classes, that menthol does not mix with the tobacco during smoking. But a consumer might prefer “natural” cigarettes for reasons unrelated to health, such as “quality, taste, [or] eco-conscious farming practices[.]” Defs.’ Opp’n to Mot. for Class Certification at 75. The plaintiffs’ damages model ignores other interpretations of those terms by simply measuring the price premium attributable to all possible interpretations. In other words, the model does not isolate the price premium attributable to the allegedly misleading interpretations. That failure conflicts with Comcast and should be fatal to class certification. The majority decided differently because, in its view, if the proposed model “does not accurately capture how the reasonable consumer would view the . . . labels,” it does so “in unison for all class members[.]” Dunn v. Santa Fe Nat. Tobacco Co., 185 F.4th 999, 1027 (10th Cir. 2026) (citation modified). On this reading of Comcast, it does not matter whether the damages model is wrong, so long as it is wrong for everyone. I disagree. Comcast’s command that damages must be measurable across the class must mean that damages are accurately measurable across the class. En banc consideration is needed to correct this conflict with Comcast. 3 Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 6 Santa Fe also challenged certification on the grounds that identifying the class members would be administratively unmanageable. Since consumers purchase Spirits from retailers, and there are no records identifying purchasers, each putative class member would need to come forward and individually prove a purchase to have standing and a cause of action. The case would thus devolve into mini-trials regarding individual claims of purchase based largely on self-serving affidavits from supposed consumers. The district court agreed but predicted that our court would treat this as a manageability concern that would only defeat certification if combined with another obstacle. After the district court issued its order but before this appeal concluded, our court decided two cases relevant to the issue—Cline v. Sunoco, Inc. (R&M), 159 F.4th 1171 (10th Cir. 2025), and Rider v. OXY USA, Inc., 175 F.4th 1214 (10th Cir. 2026). The majority decided, and I agree, that these cases bore out the district court’s prediction. Together, Cline and Rider effectively preclude a district court from refusing class certification based solely on administrative feasibility issues. In my opinion, that approach conflicts with the Rules Enabling Act, 28 U.S.C. § 2072, by giving class-action plaintiffs a shortcut to prove elements of their legal claims in some cases. See Dukes, 564 U.S. at 367 (“[T]he Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right[.]’” (quoting 28 U.S.C. § 2072(b))). In this case, for example, an individual plaintiff would need to prove that he purchased Spirit cigarettes as part of his legal claim. But by reducing the proof-of-purchase question to an administrative feasibility concern 4 Appellate Case: 23-2180 Document: 222 Date Filed: 11/12/2026 Page: 7 that cannot defeat certification, our circuit’s approach allows class-action plaintiffs to punt the issue to the damages stage. Whether Santa Fe is liable to each purported class member will depend on whether the member can prove he bought a product for which there are limited, if any, records of sale. So, proof-of-purchase is a question that affects individual class members and will overwhelm common questions. See Fed. R. Civ. P. 23(b)(3) (requiring that “questions of law or fact common to class members predominate over any questions affecting only individual members” (emphasis added)). In sum, our approach to administrative feasibility impermissibly allows plaintiffs to elide proving substantive elements of their claims through artful use of Rule 23. That is exactly what the Supreme Court in Dukes told us the Rules Enabling Act prohibits. Since our precedents conflict with the Supreme Court’s, en banc review is needed to bring our law in line. For these reasons, which are more thoroughly explained in my partial dissent, I respectfully dissent from the court’s order denying en banc review. 5