As indeed it should not be. If that is indeed what tobacco argued in Judge Weinstein’s courtroom, I’m shocked that he bought it; especially given his long term adversarial stance towards the Tobacco industry.

Please correct me if I am wrong, but I believe Tobacco’s argument in the DOJ case (as opposed to Weinsteins) was that since the labelling of cigarettes is regulated by direct Congressional mandate via the FTC, Judge Kessler lacks the jurisdiction to overturn that regulation with RICO remedies. IE: She can’t just wave her pen and undo an entirely Federal regulatory framework just because the Tobacco companies appear likely to violate the RICO act in the future.

I know not whether or not that argument carried any weight with Judge Kessler, but it does make a sort of sense from a separation of powers perspective.

In a related vein, with the DCCA’s ruling on civil RICO remedies now the immuteable law of this case until after the first appeal on its merits, I think we should see a decision by Judge Kessler on Tobacco’s motion for partial summary judgment on the smoking cessation remedy fairly soon. Whatever that decision is, it will arguably be the most important single decision in this case since the DCCA’s.