States Ask to Argue for Continued MSA funding of Document Sites and Legacy
September 16, 2005 7:58 pm by Gene BorioIn a motion to appear as amici curiae, 21 states and DC are asking Judge Kessler to order Defendants’ to maintain their MSA-mandated document websites through June 2030, and to fund the American Legacy Foundation.
There has been no news about this remarkable motion, and it is not apparently available on PACER from the Docket.
However, the Defendants have filed a reply opposing the motion. The Defendants’ opposition states:
1. The legality and propriety of such remedies can not be argued “using post-trial submissions.” In fact, Defendants threaten, the mere filing of such a brief attempting to introduce new “evidence outside the record” could endanger any judgement the court issues.
2. The States assert that the document sites “helped support public education . . . which has helped instill resistance among consumers — and particularly among young potential smokers — to the companies’ advertising and promotional efforts.” These assertions, Defendants argue, are “wholly unsupported by any evidence in the record,” and amount to introducing into the record expert opinions that have not been subjected to the trial process.
3. There are already 4 other amici briefs. Thus, admitting another “will simply sow confusion.”
The states are: Arkansas, Connecticut, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Vermont, Washington, Wisconsin, and Wyoming.
Text follows of 9/14/05 Defendants’ Reply to States’ Motion to Appear as Amici Curiae
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIAnkm
Civil Action No. 99-CV-2496 (GK
Next Scheduled Court Appearance: None
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND,
et al.,
Plaintiff-Intervenors,
v.
PHILIP MORRIS USA INC. (f/k/a ) PHILIP MORRIS INCORPORATED, et al.,
Defendants.
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DEFENDANTS OPPOSITION MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE BY APPLICANT STATES
Twenty-one states1 and the District of Columbia (collectively, the “Applicant States”) seek leave to appear as amici curiae to support the Government’s requests for funding for the American Legacy Foundation,2 to require various Defendants to maintain document websites established pursuant to the Master Settlement Agreement (”MSA”) through June 30, 2030, and to require additional Defendants to establish such document websites. Specifically, the Applicant
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1 The moving states are: Arkansas, Connecticut, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Vermont, Washington, Wisconsin, and Wyoming.
2 As Defendants have demonstrated, the public education and countermarketing campaign for which the Government seeks funding for the Foundation is not a permissible remedy under Section 1964(a) of RICO. See Joint Defendants’ Memorandum of Points and Authorities in Support of Their Motion for Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c) with Respect to Certain Remedies Sought by the United States at 16-19; Defendants’ Reply Memorandum of Points and Authorities in Support of Joint Defendants’ Motion for Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c) with Respect to Certain Remedies Sought by the United States at 11-15; Post-Trial Brief of Joint Defendants at 182-190.
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2
States assert that they “wish to file the attached brief in order to assist the Court in understanding the reasons behind the creation of the American Legacy Foundation and the document websites and why continued funding for the Foundation and continued availability of the websites are appropriate to prevent and restrain future unlawful conduct by the Defendants.” Applicant States’ Mot. at 2. The Applicant States’ motion is improper and should be denied for at least three reasons:
First, the Applicant States’ proposed brief seeks to introduce evidence that is not part of the trial record in this case. A defendant’s “right to litigate the issues raised” is “a right guaranteed to him by the Due Process Clause.” United States v. Armour, 402 U.S. 673, 682 (1971). “It is a cardinal principle of our system of justice that factual disputes must be heard in open court and resolved through trial-like evidentiary proceedings.” United States v. Microsoft, 253 F.3d 34, 101 (D.C. Cir. 2001). Disputes over the propriety of various remedies cannot be resolved using post-trial amici submissions, such as that offered by the Applicant States, which seek to introduce new evidence that was not subject to trial. Thus, permitting the Applicant States to file their proposed brief could endanger the propriety of any judgment entered by this Court because of their reliance on evidence outside the record that was not part of the trial in this matter.3
Second, and relatedly, the Applicant States’ proposed brief contains what is effectively expert opinion testimony that is being offered without being subjected to review for admissibility under Fed. R. Evid. 702 and Daubert. This is true, for example, with respect to the
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3 Defendants are well aware that the Court has recently rejected this argument and other arguments included herein as a basis for denying other amici motions, stating that “[i]f any of these objections are well taken, the Court can easily identify them and ignore any recommendations or arguments based upon such inadmissible material.” Mem. Op. to Order #1003 at 3. Defendants reiterate these arguments because they respectfully disagree with the Court’s ruling and wish to preserve their record with respect to the present motion.
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3
Applicant States’ assertions that document websites have “helped support public education programs by providing documents and other information that those programs have used in exposing the tobacco industry’s methods” and that these “education programs have helped instill resistance among consumers — and particularly among young potential smokers — to the companies’ advertising and promotional efforts.” See Applicant States Br. at 5. Not only are such assertions wholly unsupported by any evidence in the record, but they manifestly constitute expert opinions offered without being subjected to the rigors of cross-examination or tested for admissibility under Fed. R. Evid. 702 and Daubert.
Third, the U.S. Department of Justice brought this action on behalf of the United States and has prosecuted it for almost six years now. Over Joint Defendants’ strenuous and continuing objection, the Court saw fit in Order #987 to permit six public health organizations to intervene in this action to brief remedies issues in this case. Recently, in Order #1003, the Court granted leave to file four other amici briefs. There are thus already a range of voices that will be addressing remedies issues before this Court. Adding the Applicant States, with their particular issues and concerns, will simply sow confusion and increase the burdens on the Court and the parties rather than shed any useful and relevant new light. For the foregoing reasons, the Applicant States’ motion should be denied.
DATED: September 14, 2005 Respectfully submitted,
/s/ Matthew A. Campbell for _______________
Timothy M. Broas (D.C. Bar No. 391145)
WINSTON & STRAWN LLP
1700 K Street, N.W.
Washington, D.C. 20006-3817
Telephone: (202) 282-5000
Fax: (202) 282-5100
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Dan K. Webb
Thomas J. Frederick
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601-9703
Telephone: (312) 558-5600
Fax: (312) 558-5700
Theodore V. Wells, Jr. (D.C. Bar No.
468934)
James L. Brochin (D.C. Bar No. 455456)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Telephone: (212) 373-3000
Fax: (212) 757-3990
Attorneys for Defendants
Altria Group Inc. and Philip Morris USA Inc
/s/ Matthew A. Campbell for _______________
Robert F. McDermott (D.C. Bar No. 261164)
Peter J. Biersteker (D.C. Bar No. 358108)
Jonathan M. Redgrave (D.C. Bar No. 474288)
JONES DAY
51 Louisiana Avenue, N. W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Fax: (202) 626-1700
Robert C. Weber
Paul G. Crist
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
Telephone: (216) 586-3939
Fax: (216) 579-0212
Attorneys for Defendant
R. J. Reynolds Tobacco Company
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/s/ Matthew A. Campbell for _______________
David E. Mendelson (D.C. Bar No. 471863)
KlRKLAND & ELLIS LLP
655 15th Street, N.W., Suite 1200
Washington, D.C. 20005
Telephone: (202) 879-5000
Fax: (202) 879-5200
David M. Bernick
Stephen R. Patton
Renee D. Honigberg
KIRKLAND & ELLIS LLP
200 East Randolph Drive, Suite 5900
Chicago, Illinois 60601
Telephone: (312) 861-2000
Fax: (312) 861-2200
Attorneys for Defendant
Brown & Williamson Tobacco Holdings, Inc.
/s/ Matthew A. Campbell for _______________
Edward C. Schmidt (D.C. Bar No. 199315)
Matthew D. Schwartz (D.C. Bar No. 436619)
THOMPSON COBURN LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006
Telephone: (202) 585-6900
Fax: (314) 552-7597
J. William Newbold
Michael B. Minton
Richard P. Cassetta (D.C. Bar No. 457781)
THOMPSON COBURN LLP
One US Bank Plaza, Suite 3500
St. Louis, Missouri 63101-1693
Telephone: (314) 552-6000
Fax: (314) 552-7597
Gene E. Voigts
Richard L. Gray
SHOOK, HARDY & BACON LLP
2555 Grand Blvd.
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Kansas City, Missouri 64108-2613
Telephone: (816) 474-6550
Fax: (816) 421-2708
Attorneys for Defendant
Lorillard Tobacco Company
/s/ Matthew A. Campbell for _______________
Bruce G. Sheffler
David L. Wallace
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza, 34th Floor
New York, New York 10112-0219
Telephone: (212) 408-5100
Attorneys for Defendant
British American Tobacco (Investments)
Limited (f/k/a British-American Tobacco
Company Limited)
/s/ Matthew A. Campbell for _______________
Steven Klugman
Steven S. Michaels
DEBEVOISE & PLIMPTON LLP
9 1 9 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
J. William Newbold
Michael B. Minton
Richard P. Cassetta (D.C. Bar No. 457781)
Jason A. Wheeler
THOMPSON COBURN
One US Bank Plaza, Suite 3500
St. Louis, Missouri 63101-1693
Telephone: (314) 552-6000
Attorneys for Defendant
The Council for Tobacco Research-U.S.A.,
Inc.
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/s/ Matthew A. Campbell for _______________
James A. Goold
COVINGTON & BURLING
120 1 Pennsylvania Avenue, N. W.
Washington, D.C. 20004-2401
Telephone: (202) 662-6000
Attorneys for Defendant
The Tobacco Institute, Inc.
/s/ Matthew A. Campbell for _______________
Aaron H. Marks, Esq.
Leonard A. Feiwus, Esq.
Nancy E. Straub, Esq.
KASOWITZ, BENSON, TORRES &
FRIEDMAN LLP
1633 Broadway
New York, New York 10019-6799
Tel.: (212) 506-1700
Fax: (212) 506-1800
Counsel for Defendant Liggett Group Inc.
September 19th, 2005 at 1:25 am
Apparently this case has now degenerated into an open free-for-all where any public group even remotely related to anti-tobacco efforts feels free to file motions asking for cash and special favors.
These “me toos” are becoming kind of comical at this point.
Unfortunately for the plaintiffs, this particular brief isn’t just comical, it actually directly undermines the gov’ts case.
Forget the 11th hour nature of this request. By now claiming that certain provisions of the MSA act as an appropriate “remedy” against future RICO violations, the States are bolstering Tobacco’s direct defenses and shooting the gov’ts case in the foot.
The gov’t can’t simultaneously claim that the MSA is irrelevant, and doesn’t act to prevent RICO violations (which is what they have claimed at trial), yet simultaneously claim that extending the MSA provisions acts as a further deterrent to RICO violations! If the States claim is correct, that the MSA provisions by themselves effectively act to deter future RICO violations, then there is legally no reason for Judge Kessler to find any liability on that front for Tobacco.
September 19th, 2005 at 11:53 am
“The gov’t”
is not an undifferentiated mass.
“The gov’t” didn’t claim that MSA is irrelevant. The Department of Justice made some arguments about MSA in this trial.
“The gov’t” is not filing this amicus; 21 states are.
Federal government is not state government.
Nor are all states together on this. 21 states are filing here; 29 are not.
Thus it’s hardly surprising that different arguments are made. Different parties are making them.
September 19th, 2005 at 6:31 pm
>>Thus it’s hardly surprising that different arguments are made. Different parties are making them.
That’s my whole point. The arguments made by the States in this ridiculous post-trial brief are undermining those of the Gov’t (ie the DOJ) made at trial. The States are shooting the DOJ in the foot. (Since the term “gov’t” is, apparently confusing, I’ll henceforth use “DOJ” instead).
The DOJ (via its expert witnesses, especially Matt Myers) most certainly did claim at trial that the MSA was not an effective barrier to RICO violations, and the DOJ tried to minimize or negate any claims to the contrary made by Tobacco during their defense presentations. This entire case is based on that premise over the repeated objections of the Tobacco industry including a motion for summary judgment on those grounds denied by Judge Kessler (as premature) before the beginning of the trial. Now by asking for a re-negotiation of the provisions of the MSA, claiming they are necessary to prevent and restrain future RICO violations, the States are undermining the DOJ’s position on the value of the MSA in constraining unlawful activity.
I’m just pointing out the inanity of the States arguments here. They appear to be oblivious to the fundamentals of the underlying case they are trying to participate in. For example, on its merits the State’s request doesn’t satisfy the most basic requirement of the DCCA’s ruling on available RICO remedies. The States brief proposes new remedies for future RICO violations in a vague sense, but doesn’t actually state *which ones* these proposed remedies are supposed to prevent and restrain, or how. The States mention marketing cigarettes to children, but once again even assuming it happened, that isn’t even a RICO violation.
More shameful, in their proposed brief the States refer to the brief of the Citizens Commission to Protect the Truth, a group bought and paid for though the American Legacy Foundation *by the States*.
Here’s the proof from the horses’ own mouth:
http://www.protectthetruth.org/commission.htm
“Principal funding for The Commission comes from the National Association of Attorneys General [ie the STATES] through a $1.5 million pass-through grant from the American Legacy Foundation.”
The research the States refer to, claiming the benefits of “The Truth” program was published by Cheryl Heaton, the President of the American Legacy Foundation. She published a paper claiming outstanding results by her group, and is now in post-trial brief is asking for more money (though a front group paid for by her own organization) based on that “research”.
In other words, it appears that the States are doing exactly what the DOJ has accused tobacco of doing in this lawsuit, namely paying for a front group to push research with apparent conflict of interest in an effort to benefit their own financial agenda!
Even more astonishing, the States even have the gall to claim in their brief that more money is necessary from the Tobacco industry for anti-smoking programs *because the States cut funding to anti-tobacco programs!*.
>>>”A substantial and well- funded public education program program like that carried out by the Foundation is needed to counteract the effects of that exposure, particularly in light of the fact that many State legislatures have significantly reduced funding for State smoking-prevention programs.”
September 20th, 2005 at 3:23 pm
The confusion here appears to center on “necessary” and “sufficient”.
The premise that MSA was not sufficient to stop Big Tobacco from its RICO violations is entirely compatible with the premise that some part of MSA was and remains necessary. It doesn’t follow that the latter premise in any way undermines the former.
Consider for instance a campaign against tuberculosis. We might find that removing spittoons was necessary but not sufficient to stop the spread of TB.
Now imagine that somehow it was possible to make hundreds of billions of dollars by spreading TB. Imagine that an industry had formed for this purpose, and that this industry was now arguing that since it had agreed to removal of spittons, the problem was now solved. We could say that removal had not solved the problem, yet removal was and is still part of the solution. Both assertions would be correct. The latter would not undermine the former.