MEMORANDUM AND ORDER (BLUE CROSS)

Plaintiffs, a number of Blue Cross and Blue Shield entities from various states, seek the extra costs they allegedly suffered as a result of fraud by defendants on plaintiffs’ smoker members. See e.g. Blue Cross & Blue Shield of N.J. Inc. v. Philip Morris Inc., 1999 WL 104815 (E.D.N.Y. February 25, 1999). One of plaintiffs, Empire Blue Cross & Blue Shield of New York, obtained a judgment after trial based on section 349 of the New York Business Law. See Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 178 F.Supp.2d 198 (E.D.N.Y. 2001). That case is now on appeal.

Most of the other plaintiffs are from outside- of New York. Plaintiff moves to stay consideration of the other, untried, Blues’ cases until the pending appeal is decided. Since defendants consent, the stay is hereby granted.

It should be noted that the New York Court of Appeals has recently ruled that section 349 cannot be relied upon by plaintiffs injured in other states. Goshen v. The Mutual Life Insurance Company of New York, 2002 WL 1418408 (N.Y. July 2, 2002). Counsel for plaintiffs concede that the out-of-state Blues cannot rely on section 349, but will have to plead the statutes and common law of the states where they and their smokers were injured. This court will almost certainly not want to try these non-New York cases: the laws involved are, in general, not clear; certifications for clarification of state law may be required; and convenience of witnesses will suggest transfer to a more appropriate district court. Upon completion of the pending appeal a motion for dismissal or transfer of these non-New York Blues will be entertained.

So ordered.