TUE: DOJ Closing Argument
June 7, 2005 12:40 pm by Gene BorioDOJ attorney Sharon Eubanks began the government’s closing argument by stating what the DOJ wants as RICO remedies:
1. Defendants must make corrective statements
2. The establishment of a nationwide cessation program.
3. Defendants must fund educational and counter-marketing campaigns undertaken by 3rd parties.
4. Additional restrictions on youth marketing. No use of youth-oriented imagery and the reduction of imagery in retail stores.
5. Public disclosure of scientific data
6. Extension of document disclosure another 20 years, until 2030.
7. Prohibition on brand descriptors of any kind (lights, smooth, etc.)
8. Adoption of Dr. Gruber’s plan for targeted reductions in youth smoking.
9. The appointment of 1 or more court-appointed agents to assist the court in monitoring the defendants’ changes, as per Dr. Bazerman.
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DOJ attorney Stephen Goldfarb addressed the legal rationale for a RICO fraud finding.
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DOJ attorney Sharon Eubanks returned and presented on the video screen a Rogue’s Gallery of tobacco witnesses, many of whose testimony she challenged as “not credible,” and many of whom she claimed were impeached on the stand.
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The most weighty presentation, however, was DOJ attorney Stephen Brody’s, not just for his subject matter, but for the number of questions Judge Kessler raised.
Mr. Brody said the DOJ detailed DOJ’s request for court-appointed monitors, who, should they determine that defendants are continuing to violate the court’s orders, “if necessary, after due notice and appropriate judicial proceedings, [could order corporate-level remedies, up to and including] removal of senior management.”
Judge Kessler interrupted him several times, and said that the DOJ needs to look at several rulings concerning what exact role, and what practical influence a court appointed monitor might have.
“You are essentially asking for judicial oversight of private corporations, so these are very weighty issues,” she stated. “[I want to] make clear the depth of my concerns for these remedies.”
June 7th, 2005 at 5:45 pm
I find it curious that the gov’t omitted the specific remedy that Judge Williams from the DCCA said they *could* have. . .injunctive relief.
Instead they asked for a whole bunch of things that even they have to realize they can never get. Like usurping Congressional oversight of tobacco via the FTC by banning descriptors, for example. Or making “corrective statements” that in no way address future RICO violations.
Too bad, because if they didn’t ask for any permissible remedies (and it sure seems that way), they may well end up with nothing for their troubles.
June 7th, 2005 at 7:47 pm
Let’s suppose this legal analysis is 100% correct.
If so, “they”, the Department of Justice, isn’t the one who may end up with nothing.
The Department of Justice is after all an organization; it doesn’t get cancer.
It is real Americans who get sick and die from tobacco product. We are the ones who may end up with nothing.
This product kills 1 out of 5 Americans. We may end up with nothing to stop that.
We may end up with nothing to stop a predatory industry from continuing to mislead the public, get generation after generation addicted, and spread disease and death with highly effective promotion of lethal product.
We may end up with nothing from this case to reign in a rogue industry that has never hesitated to put its profits above human life.
June 7th, 2005 at 8:50 pm
>>If so, “theyâ€, the Department of Justice, isn’t the one who may end up with nothing.
Spin it any way you like; the DOJ is the plantiff in this case, on behalf of the US gov’t. If they lose this case, its a big black eye for them.
But you’re certainly right that they won’t get “nothing”. Even if they lose, the dozens of gov’t lawyers working on this case will walk away with seven years of high priced legal salaries, footed by the American taxpayer (from among other things, tobacco excise taxes). The total is in the hundreds of millions of dollars. . .inefficiently transferred from taxpayers (including smokers) to lawyers.
And all that with no tangible benefit to anyone but the gov’t lawyers and the Tobacco lawyers who will also made out like bandits (in their case, purely from the money earned from smokers). Nice work if you can get it, no?
>>We may end up with nothing to stop a predatory industry from continuing to mislead the public, get generation after generation addicted, and spread disease and death with highly effective promotion of lethal product.
Sure, absolutely nothing, except for those few current rules about:
Federal oversight on labelling and tar content by the FTC.
Restriction on sales to minors.
Restriction on all electronic advertising.
Restriction on all billboard and most print advertising.
Restriction of most merchandising.
Mandatory explicit warning labels on all cigarettes sold.
Local restrictions on smoking.
Exhorbitant Federal, State, and local taxes that comprise over 80% of the price of the product.
And hundreds of other restrictions, rules, and regulations on State and local levels including the MSA.
>>This product kills 1 out of 5 Americans. We may end up with nothing to stop that.
That’s a curious statistic considering that only 1 in 5 Americans currently smoke cigarettes (I think the actual figure is 21%).
So by your math, nearly 100% of smokers will die from smoking.
You might compare that figure to the number of non-smoking Americans who will ultimately succumb to non-smoking.
I think that number also checks out to be 100%, but I’m not an epidemiologist, so maybe I’m wrong about that.
June 8th, 2005 at 1:15 am
“if they lose this case, its a big black eye for them.”
A figurative black eye for the Department of Justice. Real disease and death for Americans. I guess I know which one I find more troubling.
Seeing the only issue as some kind of legal horse race — well, that’s certainly one way to look at it.
The scope of tobacco’s toll on America:
http://www.globalink.org/tobacco/trg/Chapter1/Chap1_SCOPE_PROBLEM.html
http://www.globalink.org/tobacco/trg/Chapter3/Chap3MORTALITY.html
“except for those few current rules about”
Ah those harsh, harsh, rules:
“Tobacco has been exempted from every major federal health and safety law enacted, by Congress including the Consumer Product Safety Act, the Fair Labeling and Packaging Act, the Toxic Substances Act, and the Hazardous Substances Act. The FDA (Food and Drug Administration) regulates foods and drugs, but tobacco is not classified as either a food or a drug, so is not subject to FDA regulation. Tobacco is the least regulated consumer product in the U.S.” Tobacco Use: An American Crisis, p. 53 and Washington Monthly, September 1993, p. 22
In fact, Big Tobacco has gotten its product a special status: it is above the law:
http://www.acsh.org/factsfears/newsID.204/news_detail.asp
The fact is, a pack of cigarettes is less regulated than a box of macaroni and cheese.
“non-smoking Americans who will ultimately succumb to non-smoking”
An interesting point. You may wish to explain that to these folks:
http://www.infact.org/about.html
While you’re at it, explain to them why it was perfectly all right that Big Tobacco was engineering its product for addiction. Misleading them about the product. Getting them addicted as 14 year olds. And lying about it all the while.
Hey, as long as Big Tobacco wins legal horse races, that’s all right, isn’t it? Explain that to these folks. Or their survivors.
Explain all about those non-smoker deaths to Bryan Curtis. Well, actually, to his widow and son; he’s not around any more. Explain it to them:
http://www.sptimes.com/News/61599/Floridian/He_wanted_you_to_know.shtml
Explain about non-smoker deaths to the non-smokers hurt by tobacco product simply because they were close to the customer:
http://www.bma.org.uk/ap.nsf/Content/humancosttobacco/$file/tobacco.pdf
Explain that it’s all about legal horse races to the 43,000 children growing up without a Mom or Dad because the product killed their Mom or Dad. This year. Alone.
I’m sure they’ll be convinced that as long as Big Tobacco wins legal horse races, there’s no problem here. No larger issue.
June 8th, 2005 at 11:53 am
>>Seeing the only issue as some kind of legal horse race — well, that’s certainly one way to look at it. I’m sure they’ll be convinced that as long as Big Tobacco wins legal horse races, there’s no problem here. No larger issue.
The title of this board is “Tobacco on Trial” and the board is ostensibly supposed to be about the ongoing DOJ trial. As far as I am concerned that *IS* the issue.
So instead of emoting about the horrors of tobacco. I’m going to restrict my comments to the ongoing “horse race”, if that’s OK.
Apparently the DOJ’s horse just stepped in a rather muddy pothole; Judge Kessler just suggested in court what I’ve been saying here for some weeks, namely that the gov’ts proposed remedies don’t address future RICO violations. Well, so much for bringing the industry to its knees.
At this point the gov’t would probably be lucky to get anything in the end, even if RICO liability is proven. Its kind of a shame because that $200 million might have been better used to pay for anti-smoking programs instead of buying DOJ lawyers BMWs.
Oh well, its not like tobacco is the only unpopular industry around. If it loses this case, the DOJ can always go after the fast food industry. I hear McDonalds is using clowns to targets children with its dangerous addictive fat and sugar rich food products, and that they dont appropriately warn people about the dangers of their product which have been engineered to be as “addictive” (ie delicious) as possible. No wonder there is an epidemic of obesity!
Plus I hear that Budweiser has a marketing campaign that uses talking horses and frogs to sell addictive beer to underaged youth, that Budweiser is the beer most often consumed illegally by minors, and that more “youth” under the age of 20 are killed by drunk driving than by any other way. The beer industry knows that youth are using their product illegally, and they do nothing to stop it.
June 8th, 2005 at 2:44 pm
“I’m going to restrict my comments to the ongoing ‘horse race’, if that’s OK.”
Perfectly. Be my guest.
For my part, I see it as if people mattered.
I’m not going to ignore the fact that people’s lives are at stake here.
I’m not going to ignore that this product destroys lives, this industry engineers this product for addiction, this industry is the major promotor of this product, and this suit may affect that.
“tobacco is like fatty foods and beer”
An old PR staple from Big Tobacco. “What’s next, fatty foods???” Heavens, that slippery slope!
Of course, there’s no comparison. Fatty foods and beer, used as intended, do not kill, and can even be good for you. Tobacco product, used as intended, kills, and there is no safe amount. Tobacco is addictive and Big Tobacco engineers tobacco product to make sure of that.
The truth is, tobacco is more similar to heroin and cocaine. There’s your slippery slope.
“What is the difference between a drug lord in Columbia, his lieutenant in Miami, or an executive of a cigarette company? None!”
Drug Addiction in America: Challenges and Opportunities, C. Everett Koop, MD, ScD
The McGovern Lecture, May 1, 2003
http://www.dartmouth.edu/~dcare/news.html#I