THU, DAY 115: DOJ Eviscerates its own National Cessation Plan
June 9, 2005 12:42 pm by Gene BorioUPDATE: Jun 9, 2005, 4:05 PM to clarify(!) eligibility for National Cessation Plan
The morning session began with PM USA attorney Dan Webb rebutting DOJ’s remedies as unworkable and unavailable to Judge Kessler under RICO. He referred to Tuesday’s reduction of National Cessation Plan costs and asked Judge Kessler,
“What does that tell you about the uncertainty the government itself has in its own remedies?”
While attempting to knock out the remedies one-by-one, his strongest argument was more macro –Judge Kessler would have to find that the RICO “Enterprise” itself still existed today. He called it an “insurmountable hurdle” to the DOJ being able to prove a reasonable likelihood of wrongdoing. Judge Kessler even asked specifically,
I have to find that it exists today?
Yes, said Mr. Webb, who has a charming habit of misspeaking, “Its the 100-pound gorilla.”
But, once again, it was the national cessation plan that dropped jaws in the courtroom gallery.
Ms. Eubanks tried to clarify the lower costs Mr. Brody specified Tuesday. It seems the plan is based on the Judge finding as a certainty that RICO violations will occur in the first year after her decision. This would appear to trigger the 5-year plan, “narrowly targeted” to the population addicted during that year. Restricting the program to that population would not only lower costs even more dramatically, but it would eliminate every smoker alive today from the program. For those newly eligible, it would certainly obviate Dr. Fiore’s vision of a “barrier-free” plan, as some sort of screening program would seem to be required.
Bill Corr of the Campaign for Tobacco-Free Kids told reporters at the lunch break that the seemingly-new scheme appears to be a political decision to even further restrict the number of smokers who would be eligible for such a program in order to reduce the costs to tobacco companies.
Associate Attorney General Robert McCallum this afternoon said reporters simply over-reached on hearing Mr. Brody’s necessarily shorthand reference Tuesday. He averred that the plan, once kicked in, would actually allow a certain number of current smokers to utilize the Quitline, up to a quantity based on the number of newly-addicted smokers, not all of whom would use the program. The final result would ensure that the industry does not attain any net increase in smokers due to their posited wrongdoing.
June 9th, 2005 at 1:06 pm
From where I sit this appears to be a decision to bring the requested for remedies in line with the DCCA requirements that they be narrowly tailored to address potential future RICO violations.
That’s what both the DCCA and Judge Kessler told them they had to do months ago.
The “shock” here isn’t that the DOJ finally listened. They were getting hammered again and again on this by the defense, and they had to do that if they wanted Judge Kessler to take their requests seriously.
The suprise here is that they waited until literally the very last possible minute to do it. Instead of asking for the stars and the moon, and all kinds of touchy-feely social programs that have nothing to do with RICO violations, they should have simply changed their tack. As I pointed out in another thread, they’ve still never even bothered asking for the specific types of injunctions that the DCCA court said they could get, and its too late for that now. And that’s a real shame, because if they had simply asked, they’d have had a good chance of getting them.
As an aside, I kind of doubt the DOJ’s newest iteration is available under the DCCA guidelines either, but its closer.
And on the topic, apparently Matt Myers made some noise in the press about the DOJ asking him to change his remedies testimony because they felt it was unacceptable. He said he wouldnt do it, and this is feeding into some of the swirling allegations of outside political interference in this case. Its rather ironic, actually, since retrospectively the DOJ turned out to be right. . .apparently Judge Kessler ended up tossing out most of his direct testimony herself as irrelevant.
June 9th, 2005 at 3:31 pm
It’s an interesting theory that Justice’s recent, sudden, unexpected slashing of its case was because of longstanding legal requirements that it overlooked until just now.
The only problem with the theory: it’s entirely unsupported by the evidence.
The evidence points to other reasons:
A person familiar with the situation, speaking on condition of anonymity, said the change was “forced on the tobacco team by higher-level, politically appointed officials of the Justice Department,” including Associate Atty. Gen. Robert McCallum, who oversees the civil division. Los Angeles Times, 8 June 2005
The Bush Administration was reluctant to continue the case…It had threatened more than once to drop it. Forbes, 9 June 2005
Judge Kessler replied, “Perhaps it suggests that there are some additional influences being brought to bear on what was the government’s case.” Los Angeles Times, 9 June 2005
It’s self-defeating, as well as rare, for anyone pressing a multi-billion-dollar lawsuit to take the pressure off the foe in the final days of a courtroom battle. And it’s devastating when the change would gut a major public health initiative. So why the retreat? At best, it’s puzzling. At worst, suspicious….it fits with the government’s pattern — in both the White House and Congress — of backing down just as it’s about to gain leverage that could reduce smoking. USA Today, 8 June 2005
June 10th, 2005 at 9:34 am
>>It’s an interesting theory that Justice’s recent, sudden, unexpected slashing of its case was because of longstanding legal requirements that it overlooked until just now. The only problem with the theory: it’s entirely unsupported by the evidence.
To the contrary, that is the precise reason specified by the DOJ lawyers in court in response to Judge Kesslers’s asking pointedly about this very issue. (Apparently she reads the Washington Post too). I would suggest that what the DOJ says in court is probably better evidence than allegations by Bill Corr. The question is, what/who finally got to them?
>>It’s self-defeating, as well as rare, for anyone pressing a multi-billion-dollar lawsuit to take the pressure off the foe in the final days of a courtroom battle.
Again, I agree. The question is why the sudden change of heart? I tend to think that considering their consistent posture since the DCCA ruling effectively gutted available remedies, the tobacco companies really weren’t feeling any pressure whatever in that regard.
They know that remedies have to be forward looking, and narrowly tailored, they have consistently taken that position since the DCCA decision, meticulously dismantling every DOJ remedy request. They also know (and have made it known) that they are confident that the DCCA will enforce its order, if Judge Kessler won’t, and that they weren’t going to back down.
I am guessing that the gov’t maintained its obviously improper remedy requests the whole time because they were trying to posture for a settlement. That was a good strategy for the DOJ *before* the DCCA decision. . .but not afterwards. By sticking to their guns, Tobacco effectively called their bluff, so at the last minute, they had to ask for something reasonable, or as I suggested earlier, they wouldn’t get anything, even if they won.
Now I agree that it is actually quite probable that someone higher up in the DOJ mandated this last minute change. But that’s probably because someone higher up and less close to the case could see the obvious. . .that the $130 billion request was absurd, has nothing whatever to do with RICO violations, and is exactly the same kind of thing that the DCCA said wasn’t allowed. Whomever made the decision probably realized that there was going to be no settlement negotiations, and was sick-and-tired of watching the gov’t get slapped around every single day in the courtroom on impermissible remedies, so they mandated this change as a tactical one (not a political one). In terms of strategy. . .I also agree with you. This was a BAD move for the gov’t. They should have done this about four months ago, right after the DCCA ruling. Doing it now was too little, too late.
Anyway, in terms of trial outcome, its actually not that big of deal. Even the DOJ probably didn’t really think Kessler was going to hand them a $130 billion Federal program! There are multiple other remedy requests, and Kessler can still implement any remedies she wants, theoretically even including the gov’ts $130 billion program, if she feels its warranted by the outstanding liability, permissible, and there is enough evidence to justify it.
>>And it’s devastating when the change would gut a major public health initiative.
Well that’s the whole point. Not only are you counting chickens before they are hatched, you’re counting eggs that weren’t even laid.
There is no public health campaign to be gutted. Never was, never will be. That’s not what this trial is supposed to be about, even though apparently that’s how all the anti-smoking groups see it. If the gov’t wanted that, it could spend a fraction of the over $20 billion per year it earns in taxes from the sale of cigarettes to set one up.
This is a civil RICO trial, and it is supposed to be about preventing criminal behavior (not even compensating the victims or undoing the effects of that behavior). If the gov’t had asked for remedies that dealt with that instead of trying to turn this into a public-health campaign, they would have had to swerve at the last second.
June 10th, 2005 at 11:46 am
I HAVE BEEN A SMOKER FOR 50 YEARS. TODAY I AM GOING FOR HYPNOSIS TO STOP SMOKING. HOW DO I SIGN UP FOR REIMBURSEMENT UNDER THIS NEW PLAN?
June 10th, 2005 at 1:12 pm
“that is the precise reason specified by the DOJ lawyers in court”
Exactly. Not to be confused with supported by the evidence.
If the assertion had been supported by the evidence, it would be unremarkable, not puzzling, not suspicious.
It’s precisely because the assertion is entirely unsupported by the evidence that USA Today concludes “At best, it’s puzzling. At worst, suspicious…it fits with the government’s pattern — in both the White House and Congress — of backing down just as it’s about to gain leverage that could reduce smoking.”
USA Today, and Forbes, and the Los Angeles Times, have found the story here: Justice’s retreat is surprising and the stated reasons make no sense. Recently discovered legal reasons — nope, not likely. More likely: Washington has no guts to fight Big Tobacco. That fits the facts. For decades, Washington has more often been Big Tobacco’s partner.
Big Tobacco has invested heavily in Washington. That investment has paid off. Big Tobacco has used its money and its power to buy influence in the Congress and the administration. You might think that influence would stop at the courts. The evidence suggests otherwise.
This administration tried to drop the case, starve the case of money, and only after public outcry continued it. We’re may now be seeing a third outcome forseen some time ago:
“The government may simply settle the case on terms favorable to the industry, declare a false victory and walk away.” The National Law Journal, 26 January 2001
http://www.law.com/jsp/statearchive.jsp?type=Article&oldid=ZZZVG4ZCGIC
June 12th, 2005 at 10:41 pm
>>“The government may simply settle the case on terms favorable to the industry, declare a false victory and walk away.” The National Law Journal, 26 January 2001
You forgot to mention that that quote was from John Banzhaf, noted a plaintiffs lawyer who has been likened “a legal terrorist”, and a driving force in tobacco and (even slimier) anti-obesity lawsuits. He’s the guy who thinks McDonald’s needs to pay for making Americans fat!
Anyway, so far Banzhaf has been wrong. The gov’t didn’t drop the case, its apparent they aren’t going to do that, and they haven’t reached any settlement, weak or otherwise.
Strategically speaking, Banzhaf’s settlement prediction is the most likely outcome only **if the gov’t feels its unlikely to win the case on its merits** A weak settlement means they are negotiating from a weak position (ie their primary case is weak). . .nothing more, nothing less, and in fact, its quite possible that the “inexplicable” change the gov’t made last week was simply and purely an overture to a settlement.
Its no secret the gov’ts remedies case is in disarray. Its also no secret that many third party legal observers (who don’t make their livings attacking tobacco and the fast food industries) think the totality of that case doesn’t meet the standards established by the DCCA and upheld by Judge Kessler, and that the recent turnaround by the DOJ is a last ditch attempt for them to get in compliance with that ruling.
In fact, that interpretation is favored by the Wall Street Journal:
****
WSJ(6/13) UPDATE: Tobacco Accord Seems Likelier
12 Jun 21:23
By Vanessa O’Connell and John R. Wilke
The move by lawyers for the Justice Department to scale back their demands in a sprawling government antitobacco lawsuit — to $10 billion from an anticipated $130 billion in funding to help smokers quit — could bring the sides a step closer to settlement, or at least give the government’s case a better chance to survive an appeal.
One government witness had suggested a 25-year, $130 billion program to cover all smokers as a potential remedy. But last week, government lawyers substantially scaled back their request, asking Judge Gladys Kessler to force the companies to fund a smoking-cessation program valued at $10 billion over five years.
While some Democrats and antitobacco advocates blasted the government’s downsized ambitions, other observers say the reduced amount reflects a more realistic view of what tobacco companies might settle for. [etc]
June 14th, 2005 at 4:23 pm
“You forgot to mention that that quote was from John Banzhaf”
I provided the URL to the article. That information, as well as the rest of the article, was a click away.
“settlement prediction is the most likely outcome only **if the gov’t feels its unlikely to win the case on its merits**”
Interesting assumption.
When a boxer agrees to go down in the third, we could assume it’s because he feels he couldn’t win. Maybe. Or it might be because of the payoff.
And that’s what it looks like here. And not just to smokefree advocates. That’s the way it looks to the Los Angeles Times, the Washington Post, the New York Times, USA Today, the Palm Beach Post, the Newark Star-Ledger, the Racine Journal Times, the Houston Chronicle, the Albany Times-Union, the Tacoma News Tribune, the Harrisburg Patriot-News…in short, to newspapers and editorial boards from coast to coast.
As one editorial succinctly put it: “this proposed deal doesn’t pass the smell test.”
June 15th, 2005 at 6:45 am
Would this statement (that the DOJ changed its remedy request specifically to comply with the DCCA ruling, exactly as I hypothesized above several days ago) by senior DOJ counsel be considered “evidence”?
================
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/14/AR2005061401379.html
Behind the Justice Department’s Shift on Tobacco
Washington Post, Letters to the Editor
Wednesday, June 15, 2005; Page A24
A June 10 editorial said that the Justice Department’s decision to reduce from $130 billion to $10 billion the amount it sought from the major tobacco companies in its fraud case “appears to be the result of political pressure.” It also came to the offensive and unfounded conclusion that the change was not based on the “legal merits” of the case as assessed by “career lawyers.”
I am a senior member of the Justice Department section involved with enforcement of racketeering laws. In 1998 the office of Attorney General Janet Reno asked whether it would be appropriate to bring civil racketeering claims against the tobacco industry for defrauding the public. I recommended that such a lawsuit be brought, and I have been a member of the case’s trial team ever since.
At the trial, Michael C. Fiore testified that a smoking-cessation program that would enable smokers who wished to quit to do so would cost $130 billion and take 25 years. However, the legal requirements that the appeals court established for the case said specifically that any remedy must be limited to addressing future violations of the law by the tobacco companies and may not seek to address the injuries caused by their past fraudulent conduct.
**I was concerned that a reviewing court might conclude that Dr. Fiore’s proposal would not satisfy that standard, so I recommended that the department present to the court a modified program designed to comply with the appeals court’s decision. My recommendation was adopted.**
With respect to the editorial’s allegation that witnesses were asked to soften their testimony, **I was concerned that some witnesses were seeking to propose remedies that would violate the Constitution and laws and that the Justice Department could not endorse such proposals**. As a result, the department determined that the witnesses it put on the stand had to include in their testimony a statement that they spoke only for themselves and not for the department — as they then did.
Both my parents died of smoking-related illnesses, and I yield to no one in my desire to devise remedies to help addicted people stop smoking. However, as a public official and an officer of the court, my actions must comport with the rule of law. My actions and those of other career prosecutors involved in this case have done just that.
FRANK J. MARINE
Washington
The writer is senior litigation counsel in the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department.
=========
So much for the conspiracy theories promulgated by partisan Democrats and anti-tobacco groups.
June 15th, 2005 at 2:17 pm
“Would this statement…by senior DOJ counsel be considered ‘evidence’?”
Of course not. It’s an assertion. By a person who must follow the dictates of political appointees. By a person whose (unfortunate) job it is to make those dictates look reasonable.
“So much for the conspiracy theories promulgated by partisan Democrats and anti-tobacco groups.”
You know what: that’s a conspiracy theory.
And like so many conspiracy theories, it’s great until you ask for evidence.
The truth is, the Los Angeles Times, the Washington Post, the New York Times, USA Today, the Palm Beach Post, the Newark Star-Ledger, the Racine Journal Times, the Houston Chronicle, the Albany Times-Union, the Tacoma News Tribune, the Harrisburg Patriot-News, in short the reporting and news analysis of journalists and newspapers from coast to coast, are a little hard to call a conspiracy.
The truth is: few of these papers could even be accurately described as Democratic or anti-tobacco.
In fact, the vast majority of these papers accept tobacco advertising. If they’re part of smokefree advocacy, they fooled me.
They’re just reporting the news, and in their editorial pages, expressing their take on the news: Justice’s gutting of its own case doesn’t pass the smell test.
I’m sorry if that news or analysis bothers anyone, but shooting the messenger won’t help.
In other news: we really did land on the moon. It’s not just some vast Democratic anti-tobacco conspiracy. Really happened. We got pictures and everything.
June 18th, 2005 at 3:39 am
Here’s a bit more evidence about why the DOJ changed its remedy request.
A bit of contrast here between what the career lawyers (who are actually workiing on the case) and the career politicians are saying:
Tobacco Suit Remedy
New York Times Letters to the Editor
Published: June 17, 2005
To the Editor:
Re “Torpedoing a Tobacco Suit” (editorial, June 10), about the government’s proposed smoking-cessation program:
A circuit court ruled in February that any remedies sought by the government against the tobacco industry must be “forwarding-looking.” This means that all proposed remedies must “prevent and restrain” only future or continuing frauds.
The department disagrees with this ruling, but in prosecuting fraud and abuse by the tobacco industry, we must abide by the court’s opinion.
We agree that the $130 billion smoking-cessation program suggested by Dr. Michael Fiore was a laudable public health program. But career department lawyers with expertise in racketeering cases found that his program required modification to meet with the court’s new standard.
You suggest that there was inappropriate political influence in this decision-making. But department ethics clearly state that any and all lawyers who formerly worked on tobacco litigation must recuse themselves from this case, and we have abided by these requirements.
Tasia Scolinos
Director of Public Affairs
Department of Justice
Washington, June 13, 2005
June 18th, 2005 at 1:19 pm
Ms. Scolinos is with “Public Affairs”. Or as we say in English, PR.
This PR provides no evidence, just more assertions. Self-serving assertions.
The evidence does not support those assertions. The evidence grows stronger every day that political interference, not legal analysis, was behind Justice’s recent surprising behavior:
To [Justice] lawyers, however, it appeared that the real “object of the game was to get the number down … as low as possible” and find a legal rationale later, a person close to the trial team said. Los Angeles Times, June 17
http://www.latimes.com/business/la-fi-tobacco17jun17,1,1165864.story?coll=la-headlines-business
It is difficult to fight Big Tobacco with one hand tied behind one’s back, but the evidence says this is Justice’s unhappy lot.