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

“….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.

Hey, I’m sure Big Tobacco would like it if everyone read the law narrowly in the way that favored its profits. Including judges and juries.

But in the real world, sometimes that doesn’t happen. Sometimes getting 14 year olds to slow poison is found to break a law or two. Sometimes lying to the public, the customers, the Congress, and the courts, is found to break a law or two. Sometimes secretly engineering product for addiction is found to break a law or two. Sometimes all remedies are not off the table.

Sometimes Big Tobacco is held accountable for what it does. It happens. Contrary to what you might hear from financial analysts, sometimes Big Tobacco is found guilty. Sometimes everybody doesn’t read the law narrowly to let Big Tobacco off the hook.

Right. Those are all the big headline-grabbing ones. Without those, the case is hamstrung.

>>It would not shut down the Judge’s authority to find Big Tobacco guilty.

The Judge has no authority to find tobacco “guilty” of anything. This is a civil trial. The can only be a finding of liability. If so, there may (or may not) be remedies available afterwards, depending on the likelihood of future violations, etc.

>>Nor would it prevent the Judge from ordering other remedies. In these proceedings the Judge has wide latitude to fashion a judgment that fits Big Tobacco’s violations of the law.

Yes, in theory she does, but in practice she has to create permissible remedies based on both evidence presented at trial and compliant with the specific restrictions enumerated by the DCCA. She can’t just make up anything she wants, and the DCCA has already given her crystal clear guidelines on the type of injunctive relief that is available to her.

Those more or less amount to “if you do it again, you’ll have to pay a big fine”. . .and they prospectively cost tobacco nothing. In fact, most of the alleged racketeering behaviors are already enjoined by the MSA (or regulated by Congress) anyway, so in practice those sorts of remedies wouldn’t even restrict tobacco’s activities at all. At best they would just provide another level of enforcement.

Incidentally, the likelihood of the Supreme Court of the USA taking on the disgorgement issue in interlocutory appeal is remote. They virtually never review cases without a complete record (ie until the case is over) and since the second highest court in the country has heard this issue not once but twice (in en-banc petition for the second time), there is no urgency for them to make an exception in this case.

Nope. It would shut down Justice’s specific remedy requests. It would not shut down the Judge’s authority to find Big Tobacco guilty. Nor would it prevent the Judge from ordering other remedies. In these proceedings the Judge has wide latitude to fashion a judgment that fits Big Tobacco’s violations of the law.

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

Of course, this is all moot if the Supreme Court decides disgorgement is back on the table:

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

Previously, Kessler specifically asked the gov’t to come up with remedies that comply with the DCCA’s requirement to be prospective and be specifically tailored to prevent future RICO violations. It certainly seems like they didn’t (couldn’t?) do it.

So then, Kessler is now obligated to decide if these remedies are valid or not as a matter of law, just as she said she would. If not, that would effectively shut down this case.

Of course, the same legal principles would apply to the public health groups that Kessler just said she would allow to enter this trial. Tobacco indirectly addressed this in their filing. The sort of public health measures that the gov’t has asked for (and presumeably the public health groups will ask for) aren’t aimed at any specific RICO violations, and are therefore impermissible.

As a side issue, I believe Kessler’s stated rationale for allowing entry of these third parties into this case is faulty. She said their input would be valuable. Maybe so, but its not as if they haven’t had input here. . .they’ve been participating all along in this trial. For example, Matt Myers from Tobacco free kids has testified at trial. So has Cheryl Heaton, executive director of the Legacy Foundation, and so has the Surgeon General of the United States! So for Kessler to claim that there hasn’t been input in this case from the public health community is disingenuous. The gov’t has *already* invited them into this case, and they’ve already participated.

So presumeably the public health groups are going to ask for more money for bigger and more spectacular anti-tobacco programs (of which, by pure coincidence, of course, they happen to be the natural recipients) but I sort of doubt that these groups are going to be able to come up with legally viable remedies where the gov’t lawyers couldn’t.