In addition, the remedy recommendation is a crystallized example of tobacco industry influence within our regulatory, legal, and political systems. Why did DOJ back away? Do the legal tactics of the industry - particularly the courtroom and investigative harrassment of witnesses and lawyers/firms - warrant greater attention and tangible legal consequences? Are conflict of interest policies strong enough to prevent DOJ political appointees from accommodating political interests in the courtroom? I’m sure there are more questions and I hope somebody smarter than I asks them all.

Regardless, there is room for small (and potentially large) victories. From all the noise and clatter of this mess of a trial, “$130 billion to help smokers quit and prevent tobacco addiction” will be the final echo. Hopefully, it’s what Judge Kessler heard last and loudest.

Thanks again for your legal analysis. Once again I’m reminded of legal analysis by financial analysts:

“tobacco analysts…read the law very narrowly, in the way that favors their clients, er, I mean companies.”

Wake-Up Call / The Tobacco Tar Pit, David Smith, July 17, 2000

When I hear: no RICO violations, no RICO remedy, can’t be done, can’t do it, legal reasons say no, no way, Big Tobacco can’t be held accountable here, nuh uh, not today, not this way, law says no, no way Jose — that sounds like reading the law narrowly to favor Big Tobacco. Reminds me of legal analysis by financial analysts.

Legal analysis by lawyers arrives at different conclusions:

http://tobacco.neu.edu/litigation/cases/Backgrounders/DOJ_pre_trial.htm

http://tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

http://tobacco.neu.edu/litigation/cases/DOJ/Blakey_Congress.htm

You’re welcome to bash Northeastern University School of Law and Notre Dame Law School. If you’d rather get your information from Big Tobacco, be my guest.

The alleged RICO violations in question are false marketing claims.

Addiction is not a RICO violation. Simply marketing cigarettes is not a RICO violation. Selling cigarettes is not a RICO violation. Making profits is not a RICO violation. (Youth smoking is not a RICO violation either, incidentally).

The DCCA has specifically addressed the above question. According to the DCCA, the only permissible remedies in this case MUST address the possibility of tobacco violating RICO in the future. Remedies that address the effects of PAST RICO violations (like residual addiction or brand image) are *specifically prohibited*.

More bluntly, according to the DCCA, even if tobacco *IS* still earning money from past RICO violations, there is nothing Judge Kessler can do about it under the civil RICO charges filed by the gov’t. All she can do is order changes to help prevent additional future RICO violations.

So with all due respect to Professor Blakely and the Tobacco-hating lawyers from Northeastern, their opinions in this case so far have been proven wrong by the only ones whose opinions actually do count. . .the Federal DC Circuit court. Here is the relevant case law:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-5252a.pdf

And here is the opinion that actually counts:

“Section 1964(a) provides jurisdiction to issue a variety of
orders “to prevent and restrain” RICO violations. This language
indicates that the jurisdiction is limited to forward-looking
remedies that are aimed at future violations.”

“This “comprehensive and reticulated” scheme, along with the plain
meaning of the words themselves, serves to raise a “necessary
and inescapable inference,” sufficient under Porter, 328 U.S. at
19398, that Congress intended to limit relief under § 1964(a) to
forward-looking orders, ruling out disgorgement.”

“The language of the statute explicitly provides three alternative ways to deprive RICO defendants of control over the enterprise and protect
against future violations: divestment, injunction, and dissolution.
We need not twist the language to create a new remedy not
contemplated by the statute.”

—
Meanwhile, the gov’t didn’t even ask for divestment or dissolution. So for practical purposes, those are now unavailable. By case law, the *only* remedy available for Judge Kessler is injunction. What does that mean? This is what Senior Justice Williams has to say on that matter in special concurrence:
—

“The equity court, empowered under § 1964(a) to “prevent
and restrain” future violations, has before it the history of the
defendant, including his past wrongs. It can decree relief
targeted to his plausible future behavior. It can define the
conditions bearing directly on that behavior. It can, for
example, establish schedules of draconian contempt penalties
for future violations, and impose transparency requirements so
that future violations will be quickly and easily identified.”
. . .Congress intended the words “prevent and restrain” to
authorize only a tailored, forward- looking remedy. Penalties
for violations of the court’s decree, and transparency-enhancing
measures meet that standard.

Has the gov’t actually asked for ANY of the kinds of things that Judge Williams specifically authorized in this case? Not as far as I can tell. Instead, they have wasted their time asking for remedies that don’t address future RICO violations, like smoking cessation programs, and youth smoking penalties. So, it should come as no suprise when Judge Kessler has no choice but to reject the gov’ts proposed remedies, substituting instead (if she finds liability) the sort of injunctions specifically authorized by Justice Williams.

If the money taken from the industry is not money earned previously as a result of RICO violations, but money earned tomorrow and the next day from the addiction created by the RICO violations, that is not disgorgement. It is taking future gains and using them to prevent future RICO violations (addiction and profits resulting from the violation).

www.tobacco.neu.edu/box/BOEKENBox/Henley%20v%20PM/MunterOrderHenley.pdf

TCRC is the Northeastern University School of Law. If you prefer to believe Big Tobacco, be my guest.

Something you won’t find on Big Tobacco’s website: Judge Munter’s opinion in Henley. You’ll find it at the TCRC:

www.tobacco.neu.edu/box/BOEKENBox/ Henley%20v%20PM/MunterOrderHenley.pdf

If you want only the story Big Tobacco tells on tobacco litigation, Philip Morris has a website for you.

I prefer to get the whole story.

However, I prefer to get MY legal analysis from the actual judges who rule on these things. To quote Justice Sentelle: “Because we hold that the District Court erred when it found that disgorgement was an available remedy under 18 U.S.C. § 1964 (a), we reverse the District Court and grant summary judgment in favor of Appellants as to the Government’s disgorgement claim”

ref: http://www.altria.com/download/pdf/media_doj_disgorgement_summary%205-05-05.pdf

I might also remind you that 9 of the 12 DCCA judges did not even vote for an en banc rehearing. Perhaps they know something that the Northeastern lawyers don’t?

It would be wise for all of us here to heed the opinions of Justice Sentelle. At the end of the day, he and the rest of the DCCA judges will have final word over what happens, including whatever legally-unsound remedies Kessler might actually grant to the DOJ. Think about that before you continually post links to the Tobacco Control Resource Center.

I prefer to get my legal analysis from lawyers:

http://tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

http://tobacco.neu.edu/litigation/cases/DOJ/index.html

http://tobacco.neu.edu/litigation/cases/DOJ/Blakey_Congress.htm

You can’t sew a silk purse out of Sow’s ear.

If the gov’t wanted better remedies they shouldn’t have filed this racketeering suit under civil RICO 1964(a). That’s a limited act with limited purpose, and those limitations have been highlighted in great detail by the DCCA appeals court.

Allegations of tobacco breaking the law don’t give the gov’t license to get anything they want. They’ve got to follow the law too, in this case the DCCA case law.

>>I’m always amused by the “tobacco is legal product you know” argument. So’s drink. So are cars. Drunk driving, it turns out, is against the law.
>>Guess how far you get arguing you can’t be punished for drunk driving because drink and cars are legal products. Turns out that particular legal analysis doesn’t impress the court a whole bunch. But don’t take my word, go ahead tell the court it doesn’t make any legal sense.

This argument doesn’t make any legal sense.

Drunk driving is a specific criminal offense with specific proscribed penalties. Selling cigarettes is not.

Racketeering *could* be a criminal offense, but not in this case. That’s because the gov’t, already *having failed* attempts at a criminal case against tobacco deliberately filed this weaker civil RICO case.

Now, it was the DCCA (not me) who specifically said that under the civil RICO act 1964(a) remedies designed solely to punish tobacco for past behavior are prohibited. They also said that the only remedies permissible under that statute need to serve to “prevent and restrain” future RICO violations.

So if the gov’t can come up with appropriate remedies to address RICO violations, they might get some. If they persist with these silly requests, they’ll get nothing. But don’t take my word for it. Go read Kessler’s remarks on the disgorgement decision.

Once again I’m reminded of legal analysis by financial analysts:

http://www.tobacco-on-trial.com/archives/2005/05/17/tue-day-106-fiore-v-wells-over-national-cessation-program#comment-476

I prefer to get my legal analysis from lawyers:

http://tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm