Wed AM: Appeal does NOT look good for DOJ

November 17, 2004 11:58 am by Gene Borio

In the U.S. Court of Appeals for the District of Columbia Circuit, at least one of the judges on the 3-judge panel seemed adamantly hostile to the government’s argument that in order to “prevent and restrain” future wrongdoing of the tobacco industry, the DOJ is entitled to “disgorgement.”

Judge Sentelle interrupted government lawyer Michael R. Dreeben within about 7 words, and by the end of the hearing said, in his thick southern accent, that a lot of testimony was heard in the passing of RICO in 1964 about racketeers and mafioso, but, “I’ve seen the government using it in everything except racketeers and mafioso.”

Judge Tatel seemed sympathetic to the government’s case, and Judge Williams seemed slightly hostile to it.

There was talk of other remedies available to the government, including injunctive relief–an aspect of the case which will continue, but has not been given great attention until now. It may be the only remedy left when the Appeals Court’s judgement comes in, possibly in 2 weeks, or by the end of the year.

How a negative ruling will affect the government’s committment to the case is unknown.

6 Responses to “Wed AM: Appeal does NOT look good for DOJ”

  1. krueger Says:

    The author of RICO explains why it applies to the tobacco industry, and this trial specifically:
    http://tobacco.neu.edu/litigation/cases/DOJ/Blakey_Congress.htm

  2. tobacco observer Says:

    “RICO’s civil application in the Government’s civil suit against a corrupt and unreformed industry that addicts children with a drug that horribly kills them as adults is an outlaw industry whose illicit conduct must be brought under control.”

    This coming from a guy who represented GUATEMALA suing for tobacco related damages in the USA? (Needless to say, his legal theories didn’t do too well in that case).

    Its just a bit tough to characterize this man as an unbiased industry legal observer.

    I’d say, leave the interpretation of case law up the professionals (ie the appeals court judges).

  3. tobacco observer Says:

    I think the more interesting issue here is, presuming that the appeals court holds to USA vs. Carson, what (if anything) they are going to leave left to Kessler as remedy (assuming tobacco loses the case. . .not a foregone conclusion).

    I don’t think she is legally entitled to usurp the role of the FTC via injunction in terms of regulating tobacco advertising, etc, when that power has been specifically granted to the FTC via Congress.

  4. krueger Says:

    Let’s see, where have I heard that before?

    Specifically, accusing a person of “bias” against the tobacco industry when he expresses an unflattering view of it?

    Oh yes, that was the tobacco industry. In this very trial, for one example.

    It amounts to a two-pronged attack: either the person utters no unflattering views of this industry, in which case there’s little basis for a suit against it, or the person does express an flattering view, in which case he’s accused of “bias”.

    It’s also just plain shooting the messenger.

    Professor Blakey didn’t make the tobacco industry addict children with a drug that horribly kills them as adults. The tobacco industry did that. Blakey simply observes that’s what this industry does; that’s how this industry makes money.

    Yet shooting the messenger is very popular with this industry. Big Tobacco goes on and on about its “critics” and “antagonists” and their “bias”. You’d think it was the victim of some vast conspiracy.

    Interestingly, this isn’t just a courtroom thing with this industry. It’s a pattern. Big Tobacco is very short on admissions of what it did and how that affected people’s lives, and very long on how it’s been unfairly accused. I’m told this is also a characteristic of criminals who are likely to re-offend after their release.

  5. tobacco observer Says:

    “Specifically, accusing a person of “bias” against the tobacco industry when he expresses an unflattering view of it”

    No, specifically accusing a person of “bias” when they have expressed extreme partisan views against the industry for many years, and have taken funding from those seeking cash reimbursement from the industry on multiple seperate occasions. Indeed, the first words out of this man’s mouth (in his own presentation that you quoted) indicate that he is biased and knows it. The man has essentially said he wants to destroy the tobacco industry. You don’t consider that a “bias”?

    Then again, given the rest of the tone of your post, probably not.

  6. krueger Says:

    Former tobacco lobbyist Victor Crawford describes a industry PR tactic he used:

    “I attacked the messenger…you can turn the issue away from the message. That’s what I’m saying. Get them away from the focus because you can’t defend it…Attack the messenger.”

    http://www.tobacco.org/Documents/950319crawford.html

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