“Tobacco analysts…are all keen students of law, as they must be since their industry’s outlook is completely dominated by its legal issues. But they always seem to 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

Reading RICO remedies as limited to nothing that would hurt Big Tobacco, seems like reading the law very narrowly in the way that favors Big Tobacco.

It’s possible that RICO remedies will hurt RICO violators. It happens.

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.

The requirement of these remedies under RICO 1964(a) is that the remedies act to prevent and restrain future violations of the RICO act. The point of this whole exercise is that the gov’t is asking Judge Kessler to intervene in the alleged ongoing criminal conspiracy specifically to prevent future racketeering activity.

The problem here is that selling cigarettes (and smoking them) is perfectly legal! Forcing tobacco to fund programs designed to reduce the number of smokers, though perhaps admirable from a public health standpoint, IN NO WAY addresses ongoing or likely future racketeering violations. The DCCA made this crystal clear in their decision: remedies designed solely to “punish” tobacco, or to inflict economic “pain” are absolutely NOT permitted. If the alleged RICO violations concern tobacco marketing, the proposed remedies have to address tobacco marketing.

The fact that the gov’t is now resorting to this nonsense means one of two things. The gov’t lawyers might simply not understand the DCCA’s decision on permissible remedies in civil RICO disgorgement cases, and Kessler’s requirement that they follow it. That’s unlikely; they are not incompetent.

More reasonably, this shows the inappapropriateness of pursuing this issue via the civil RICO statutes. After the DCCA took away that ridiculous threatened $280 billion dollar disgorgement “hammer”, the gov’t simply has nothing left to ask for!

The requirement of these remedies under RICO 1964(a) is that the remedies act to prevent and restrain future violations of the RICO act. The point of this whole exercise is that the gov’t is asking Judge Kessler to intervene in the alleged ongoing criminal conspiracy specifically to prevent future racketeering activity.

The problem here is that selling cigarettes (and smoking them) is perfectly legal! Forcing tobacco to fund programs designed to reduce the number of smokers, though perhaps admirable from a public health standpoint, IN NO WAY addresses ongoing or likely future racketeering violations. The DCCA made this crystal clear in their decision: remedies designed solely to “punish” tobacco, or to inflict economic “pain” are absolutely NOT permitted. If the alleged RICO violations concern tobacco marketing, the proposed remedies have to address tobacco marketing.

The fact that the gov’t is now resorting to this nonsense means one of two things. The gov’t lawyers might simply not understand the DCCA’s decision on permissible remedies in civil RICO disgorgement cases, and Kessler’s requirement that they follow it. That’s unlikely; they are not incompetent.

More reasonably, this shows the inappapropriateness of pursuing this issue via the civil RICO statutes. After the DCCA took away that ridiculous threatened $280 billion dollar disgorgement “hammer”, the gov’t simply has nothing left to ask for!