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.

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.”

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.

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.