Since the first Surgeon General’s report in 1964, about 14 million Americans have had their lives cut short by Big Tobacco’s product.

That’s real enough for me.

434,000 Americans who die from tobacco product each year. That’s more than from car accidents, plane crashes, homicide, suicide, AIDS, alcohol, and drug abuse combined.

That’s what’s at stake.

This product kills one out of five Americans today. Just as TB killed one out of five Americans a hundred years ago. The difference: little progress in reducing tobacco death, because Big Tobacco has undermined public health efforts worldwide.

To me, that’s something real at stake.

But perhaps others feel differently.

Lets just say I beg to differ. I’m not going to argue legal semantics with you. . .I’ll just skip onto the point.

>>So when you hear “Tobacco hasn’t yet been found liable for anything”, you’re hearing someone getting the facts wrong.

What I’m “hearing” is my quote deliberately lifted out of context by “someone” who seems unable or unwilling to talk about the issue at the top of this thread, namely the SCOTUS appeal by the gov’t.

When I said Tobacco hasn’t yet been found liable for anything, I was simply referring to the scores of alleged RICO 1964(a) violations that form the core of this lawsuit. . .not all Tobacco liability everywhere since the dawn of time!

So here’s the point again, a bit more concisely:

The SCOTUS is overworked and does not have the luxury to deal with abstract or theoretical issues it might like to hear, but rather prefers completed cases with something “real” at stake. No RICO liability has yet been established in this case. As such it still isn’t even clear if disgorgement COULD apply, even if the SCOTUS decided it might be an available remedy (in general). For that reason this isn’t a good test case, and I think the “tough petition” the gov’t posted for the Supreme Court of the United States to accept certiorari on disgorgement is most likely going to be denied.

Now, earlier I asked specifically if you, or your pals from the “Tobacco Liability Project” (or anyone else) had any comments about this. Since you didn’t answer that question, I’ll do it myself. The Tobacco Liability lawyers, not suprisingly, seem to have no doubt that the DOJ will have its petition for review accepted:

http://www.tobacco.neu.edu/litigation/cases/pressreleases/certpetitionfiled.htm

>>>>>>There are several reasons why the U.S. Supreme Court **will accept** the DOJ’s Petition and review the decision: a) There exists a conflict among the federal circuits on the question of whether disgorgement is an available remedy under Civil RICO; b) the Court of Appeals decision eviscerates Civil RICO claims brought by DOJ against any defendant and would effectively mean that the government would no longer have this legal tool available to fight corporate fraud; and, c) historically, the U.S. Supreme Court has been more apt to grant review of petitions from the DOJ than petitions from private parties, because the underlying cases often have significant law enforcement implications, as is the case here.

Correct!

And here’s what a sanction does: it finds you liable for something you did.

For instance, in this case, Big Tobacco has repeatedly violated court orders. Big Tobacco was found liable for this. As a result, Big Tobacco has liabilities of $2,750,000. That’s the fact.

So when you hear “Tobacco hasn’t yet been found liable for anything”, you’re hearing someone getting the facts wrong.

Kind of like Fitch analyst Judi Malter . She said Big Tobacco had “not lost a case on appeal which resulted in a payout”. In fact it had. She got the facts wrong.

That’s what reminds me of legal analysis by financial analysts: they get the facts wrong.

Not a thing. Oh, wait: BAT has been found guilty of violating court orders and fined $250,000:
***

That’s neither RICO liability, nor is it the result of a “guilty” verdict; that’s a sanction. Its a different thing, and its has nothing whatever to do with whether or not the Supreme Court of the USA decides to accept jurisdiction on the disgorgement issue. The same is true over the emails deleted by Philip Morris. Again, no guilt, no liability, and irrelevant to whether or not the SCOTUS is going to hear this appeal.

To get to the point, the SCOTUS simply does not like to intervene in the middle of cases, when the results of their decision may not turn out to be applicable to the case in question. No outstanding RICO liability for tobacco means that at this point, disgorgement is still only a theoretical concern.

The reference to a four-old mistake made by some tobacco analyst about a completely different lawsuit is curious. . .but what does it have to do with this case? How about a link to someone’s legal opinion (anyone) who explains why he/she thinks that the SCOTUS *is* going to review this case? That would be interesting. Perhaps one of the lawyers from the Tobacco liability project has something to say about whether or not they actually think the SCOTUS is going to intervene here?

I’ve seen some legal analyst’s opinion stating that the circuit split on disgorgement by itself would make the SCOTUS take the case. I agree that it would interest them, but again, without a finding of liability here, this would make a poor “test” case.

In the meantime, since she disagreed with the DCCA ruling on disgorgement, I’d bet Judge Kessler won’t have a problem waiting until the SCOTUS responds to the petition for certiorari before publishing her decision in this case.

Incidentally, part of the Foyle fiasco was mentioned, but there was no mention that Kessler’s decision on attourney-client privilege with regards to the Foyle memorandum was ultimately overturned in interlocutory appeal by BAT with the DCCA. Guess she’s not always “right” either.

Not a thing. Oh, wait: BAT has been found guilty of violating court orders and fined $250,000:

http://www.tobacco-on-trial.com/archives/2005/03/28/batco-fined-and-sanctioned-over-foyle-witness-fiasco

Philip Morris also violated court orders in this case and was fined $2.5 million:

http://tobacco.health.usyd.edu.au/site/gateway/docs/pdf/20040721opinion_600.pdf

Once again I’m reminded of legal analysis by financial analysts. They get the facts wrong.

Take Fitch analyst Judi Malter. December 16th, 2002: Malter reports “Major tobacco firms consistently appeal adverse verdicts and they have not lost a case on appeal which resulted in a payout”. March 2001, Brown and Williamson, having lost its final appeal, paid $1,087,191 to Grady Carter.

Columnist David Smith observes:

“Tobacco analysts are a unique and distinctive group on Wall Street. For one thing, they would to a man prefer to flack for the tobacco industry than actually make a correct investment recommendation and be seen to make one. As a result of being so wrong for so long, Wall Street’s tobacco analysts have probably cost investors as much money as anyone engaged in lawful activities there ever has…”

“The other unique feature of the tobacco analysts is that they 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

Even assuming the gov’t actually wins its appeal, and disgorgement is once again permitted in theory, that doesn’t mean that tobacco would suddenly be liable for that amount.

At best it would mean Kessler would re-open arguments on remedies. The gov’t would then still have to justify why it applies here and also justify the figure they seek. The problem is, they simply aren’t going to be able to do it. From the get go, the $280 billion number was a “made up number” designed primarily to grab headlines and intimidate. But when it came down to the nitty gritty, similar arguments were already made (and discredited) at trial. The DOJ has completed its main case but presented no evidence as to what proportion of tobacco earnings they think have been obtained illegally.

But apart from all of that, even just getting their appeal in front of the Supreme Court is going to be an uphill battle. The Supreme Court is already overworked, and they hate to take interlocutory appeals. They like to review complete cases so that they can look at all the facts and judge the entire case in context. In this case, no decision has even been made yet. Tobacco hasn’t yet been found liable for anything, and in fact may not be. Meanwhile, a Federal level appellate court has already decided this issue, not just once, but even at the level of en-banc review. This just isn’t a good “test case” for the Supreme Court.