SCHWAB PARTIES TO ARGUE APPLICATION OF KESSLER RULING

August 21, 2006 11:18 pm by Gene Borio

On August 18, 2006, the day after Judge Kessler published her Final Order and Opinion, Judge Weinstein ordered all parties to address whether Judge Kessler’s conclusions of law as they affect the Schwab case should be re-litigated, ie,

1. Defendants devised and executed a scheme to defraud consumers and potential consumers of cigarettes.

2. Defendants’ fraud extended to the false marketing and promotion of “light” cigarettes as less harmful than regular cigarettes in order to sustain corporate revenues.

3. Defendants continue to suggest through their marketing and public statements that “light” cigarettes are less harmful than regular cigarettes, although they know this to be false.

The discussion will take place at a previously-scheduled Sept. 13 hearing.

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Text follows of “ORDER: at the hearing scheduled for 9/13/2006, all parties shall address whether any of the findings of fact and conclusions of law should collaterally stop defts from re-litigation of the issues in the present suit.”

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BARBARA SCHWAB et al., individually and

on behalf of all others similarly situated, Plaintiffs,

v.

PHILIP MORRIS USA, INC. et al.,

Defendants.

No. 04-CV-1945 (JBW)

ORDER

JACK B. WEINSTEIN, Senior United States District Judge:

The opinion issued yesterday in United States v. Philip Morris, et al., No, 99-2496 (OK) (D.D.C. Aug. 17, 2006), arguably reaches conclusions on a number of factual and legal issues germane to the instant litigation, including:

1. Defendants devised and executed a scheme to defraud consumers and potential consumers of cigarettes.

2. Defendants’ fraud extended to the false marketing and promotion of “light” cigarettes as less harmful than regular cigarettes in order to sustain corporate revenues.

3. Defendants continue to suggest through their marketing and public statements that “light” cigarettes are less harmful than regular cigarettes, although they know this to be false.

4. The conduct described in 1 through 3 above constitutes a violation of section 1962(c) of title 18 of the United States Code.

5. The violation of section 1962(c) involved predicate acts of mail and wire fraud.

6. The conduct described in 1 through 3 above constitutes a violation of section 1962(d) of title 18 of the United States Code.

At the hearing scheduled for September 13, 2006, all parties shall address whether any of these or other findings of fact and conclusions of law should collaterally estop defendants from re-litigation of the issues in the present suit.

ORDERED.

Jack B. Weinstein / Senior United States District Judge

Dated: August 18, 2006 Brooklyn, New York

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