Text Downloads Of DOJ’S Post-trial Brief Available

August 25, 2005 3:38 pm by Gene Borio

8/24/05 DOJ Post-Trial Brief (text)

8/24/05 DOJ Post-Trial Brief (doc)

The DOJ has posted another remarkable document: a strongly worded and strongly reasoned presentation of its argument and evidence. It is a neat reprise of the trial, as well as some behind-the-scenes battles. The Government seems to have employed their sharpest legal and linguistic minds in this effort.

Advocates looking for strong answers to industry arguments could do worse than to pick and choose (and copy and paste) from this rich compendium of succinctly-phrased and smartly-referenced arguments.

The DOJ has given cogent reasons and drawn upon clever references in its justifications for a finding of RICO liability, as well as for the remedies it seeks–including wide-ranging countermarketing measures, court-appointed monitors and a (still-scaled-back) National Cessation Program. DOJ not only reprises important points from the trial testimonies, it references some of the background wars we didn’t see in open court (viz, DOJ’s battle to obtain a Gary Huber Prior Deposition; DOJ finally had to initiate a court action in Texas to get it).

DOJ even cites Judge Williams’ own concurrence in the disastrous Disgorgement decision of Feb. 4 to justify “draconian contempt penalties,” should future misconduct continue beyond the first post-judgment year.

Some of the subjects covered which may be of use to advocates:

–The myth of independent research; Suppression of information; false, deceptive and misleading statements; Corporate acts, knowledge, and scienter; the need and rationale for “Corrective Communications.”

–Secondhand Smoke

–Addiction and Nicotine manipulation

–Light and low tar cigarettes

–Youth marketing

–MSA issues

–RICO liability issues

–How future wrongdoing is addressed by the DOJ’s remedies. (Be sure to check the chapter, “Fraud pervades the structure of Defendants’ corporate environment”)

While some arguments do seem to reach a bit far out onto the ice, and while some are presented in a kind of shorthand meant just for Judge Kessler (whose knowledge here surpasses that of all but perhaps 10 human beings on earth), and while sometimes it seems more as if the DOJ itself is testifying, still it is a rich, potent document.


PDF documents, while they give the reader an attractive and accurate representation of a printed document, consume a great amount of bandwidth and computer resources; they are unwieldy, difficult and time-consuming to search and clumsy to copy from. Therefore, I have posted sleeker versions of the DOJ’s PDF. The Word document retains the bold and underlined formatting.

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