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PARTRIDGE: America, Inc. Is Here. Get With The Program! 

It is well-known that since the Reagan administration, Congressional legislation has largely been written by corporate lobbyists, even though bills have routinely borne the names of legislators. With the privatization of the government we may now, at last, see an end to such political hypocrisy and the resulting public cynicism about government. With no further pretense of representing "the people," politicians may now be openly identified by their correct designations: e.g., "Senator Libermann from Met Life," "Senator Chamblis from Diebold," "Senator Baucus from United Health," "Senator Gillibrand from Philip Morris," "Senator McCain from the National Rifle Association," and so on.

For purposes of identification, the logos of the corporate sponsors might now appear on the jackets of all members of Congress, and on the front of the podia during their public appearances. On the nightly newscasts, the anchors might announce, "this congressional bill brought to you by the good folks at the Chamber of Commerce." And the tobacco companies, relieved of the embarrassment of the health warnings on the cigarette packs, can replace them with the label "proud co-owners of the United States Government."

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• JAMES STEWART et al. v. ROLLING STONE LLC et al. (PDF) 

Defendants are the publishers of Rolling Stone magazine. The named plaintiffs in this class action lawsuit are •indie rock• musicians whose band names are included with the names of over 100 other bands in an editorial feature entitled •Indie Rock Universe•

(the Feature) that appeared in the November 15, 2007 issue of Rolling Stone . . . The opposite page, on the magazine‘s left-hand side, contains a full-page advertisement for Camel cigarettes. . . .

In closing, we appreciate that the placement of the Feature within the gatefold layout may have caused plaintiffs some distress, insofar as their bands‘ names appeared in such close proximity to R.J. Reynold‘s expressions of corporate sponsorship for independent music. Doubtless, Dustin Hoffman experienced similar distress upon seeing

the image that was the subject of his lawsuit against Los Angeles magazine. Because plaintiffs have not demonstrated that defendants acted with actual malice, however, constitutional principles of freedom of speech and the press require this lawsuit be dismissed.

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Electronic cigarette imports on hold  

A federal appeals court has put on hold a lower court ruling allowing electronic cigarettes to be imported.

The U.S. Court of Appeals for the District of Columbia Circuit stayed a lower court order banning the U.S. Food and Drug Administration from seizing the devices when they enter the country.

Electronic cigarettes, also known as "e-cigarettes," are devices that heat and vaporize small amounts of nicotine, the addictive substance in tobacco. They contain no tobacco, however.

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Appeals Court Stays E-Cigarette Ruling // Leaves FDA Free to Block Imports Again 

The U.S. Court of Appeals for the District of Columbia has just stayed an injunction issued by a lower court judge which would have prohibited the Food and Drug Administration [FDA] from blocking imports of e-cigarettes into the United States. The FDA maintains that such devices are illegal because -- unlike other products which administer nicotine such as gums, patches, inhalers, and sprays -- e-cigarettes have not been submitted to the FDA with proof they are safe and effective.

Recently Judge Richard Leon granted the stay, arguing that, while the FDA does now (under new legislation) have jurisdiction to regulate e-cigarettes, they should be regulated in the same category as ordinary tobacco cigarettes because they resemble cigarettes and likewise administer nicotine. However, e-cigarettes are functionally very different from conventional tobacco cigarettes, and the FDA believes they should be regulated differently.

"This new ruling doesn't necessarily mean that the U.S. Court of Appeals disagrees with Judge Leon's ruling, but it may signal some concerns with the way the lower court judge decided the case," says public interest law professor John Banzhaf, Executive Director of Action on Smoking and Health, who participated in the case.

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• FDA Appeals Electronic Cigarette Ruling 

The Food and Drug Administration is appealing a federal judge's ruling that the agency doesn't have the authority to regulate electronic cigarettes.

The FDA on Monday night asked a federal appeals court in Washington to immediately stay an order that prevented the agency from blocking electronic cigarettes from entering the country.

The FDA said it does have the authority to regulate some products containing nicotine as though they are drugs and devices, such as nicotine patches and nicotine lollipops. The agency said the judge was "quite wrong to believe that no injury would result from the use of these harmful and addictive products."

The case is testing the reach of FDA's regulatory powers, and the agency and public health advocates have said it could have severe public health implications.

In January, U.S. District Judge Richard J. Leon sided with electronic-cigarette makers

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Arkansas Court Strengthens General Tobacco’s Position 

Vibo Corporation d/b/a General Tobacco (GT) announced today that an Arkansas Court has denied the Arkansas Attorney General's motion to remove General Tobacco's cigarette brands from the Directory of approved brands to sell in that State and ordered the Arkansas Attorney General to arbitrate the dispute ordered in 2006, holding that GT's cigarette brands may continue to be sold lawfully in Arkansas.

Since the Arkansas Attorney General served as the identical voice for the other 42 attorneys general, they may now be legally bound to the Arkansas order.

GT believes that the Order, issued by the Circuit Court of Pulaski County on January 26, 2010, should prevent not only Arkansas but any other State that is part of the Master Settlement Agreement (MSA) from delisting GT's brands. Arkansas is the only State that has brought a Court action to determine whether the delisting of General Tobacco's cigarette brands is proper. None of the States that have announced the delisting of GT's brands sought any Court's permission to do so. Now that a Court has ruled that delisting of the brands may not proceed, General Tobacco has asked all of the States in the MSA to comply with that Court's Order.

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• Tobacco company challenges states' authority 

General Tobacco, which owes the states approximately $284.5 million and faces delisting, said Monday that the company feels protected after an Arkansas judge said the company's brands cannot be taken off store shelves there over its failure to make payments under the multistate Master Settlement Agreement.

Vibo Corporation Inc., which does business as General Tobacco, is based in Mayodan, N.C. Its cigarette brands include Bronco, Champion, GT, Silver and 32⁰.

General Tobacco could be barred from selling its cigarette products in 18 states over its failure to make the MSA payments.

On Friday, a Pulaski County judge rejected Arkansas Attorney General Dustin McDaniel's motion to delist General Tobacco's cigarette brands.

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General Tobacco De-Lists Products in Some States 

Vibo Corp. d/b/a General Tobacco announced that it will comply with recent notices regarding the removal of its cigarette brands from certain state directories of approved brands for sale.

General Tobacco (GT) also continues to dispute the validity of the Master Settlement Agreement (MSA) under antitrust, constitutional and other federal and state laws, and GT claims its entitlement to more than $95 million in overpayments to the states. The de-listing does not pertain to the filtered cigars or pipe tobacco products sold by GT. These products can continue to be sold in all states without interruption.

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HEARD ON THE STREET: Tobacco Can't Shake Off Legal Addiction 

But a number of verdicts in so-called Engle cases are again raising the specter of costly lawsuits. Engle cases are a threat to big tobacco because they let plaintiffs use a previous court finding that smoking causes cancer and that companies made false statements about their products.

In coming months, many more Engle cases will likely go to trial, along with possible suits related to cigarettes labeled "light." Morgan Stanley's David Adelman says damages could potentially total hundreds of millions of dollars in the next two to three years.

Yet share prices don't appear to reflect such danger. Consider Philip Morris International

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• Lawmaker angry with Creek tribe for lawsuit 

A state lawmaker on Friday blasted a federal lawsuit filed by the Muscogee (Creek) Nation against state officials and agencies over revisions made to the state tax code that affect the tribe's tobacco sales.

Rep. Doug Cox, R-Grove, called the suit, filed Jan. 11 in federal court in Muskogee, a "poor use of tribal resources" and accused Principal Chief A.D. Ellis of trying to continue policies that harm tribal members.

Cox, a physician, is a member of the Legislature's Native American Caucus and is of Creek heritage.

The lawsuit asks the court to rule that the state cannot enforce tax-code regulations that took effect Jan. 1. . . .

The Creek Nation is one of the only federally recognized tribes in Oklahoma not to have a tobacco agreement with the state, and although states usually have very little jurisdiction in Indian Country, the state of Oklahoma has told the tribe that it intends to enforce civil and criminal aspects of the tax code, according to the tribe.

The lawsuit lists Gov. Brad Henry, Attorney General Drew Edmondson, and the Oklahoma Tax Commission and its officials as defendants. . . .

Cox said the tribe's practice of selling low-cost, no-tax cigarettes manufactured by other tribes endangers young people and hurts American Indians, who often have higher rates of smoking and diabetes.

"Chief Ellis should be ashamed for pursing policies that allow the Creek Nation to skirt the regulations of Senate Bill 608 that affect tribal smokeshops," he said in a news release. "The chief wants to continue his policy that is hazardous to all Oklahomans, and particularly his tribal members."

Cox said members of the Creek Nation should be irate, and he encouraged Ellis to "invest what his lawsuit is going to cost in things that benefit his constituents, rather than harm them."

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11 Lawyers You Definitely Don't Want To See Across The Aisle: Ted Wells 

Awards: Named Lawyer of the Year in 2006 by The National Law Journal and repeatedly as one of the top 100 most influential lawyers and one of the top white-collar criminal defense lawyers in America.

Greatest Hits: Gave empassioned defense of CIA leaker Scooter Libby, who was eventually (and controversially) pardoned. Defended Citigroup against $30 billion fraud charges. Also represented financier Mike Milken, congressman Mike Espy, and Exxon Mobile.

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11 Lawyers You Definitely Don't Want To See Across The Aisle: Dan Webb  

Awards: Ranked as the number one litigator in the U.S. by Euromoney's Guide to the World's Leading Litigation Lawyers; as the top litigation expert in the U.S. by Guide to the World's Leading Lawyers; and the top white-collar criminal defense attorney by Corporate Crime Reporter.

Greatest Hits: Busted corruption at all levels, up to an interrogation of Ronald Reagan during the Iran-Contra Poindexter trials. He also worked the other side, representing major corporations like Microsoft, Philip Morris, and General Electric.

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MUSCOGEE (CREEK NATION) vs. OKLAHOMA (PDF) 

1. This action arises out of the Defendants' ongoing attempts to unlawfully enforce the State of Oklahoma's cigarette tax code (the "Tax Code")' as amended by SB 608 which became effective on January 1, 2010, against the Nation, its members, employees, and licensees. The Defendants impermissibly burden Indian commerce through their attempt to unilaterally impose State mandated restrictions on the sale of tobacco products in Indian country, including tribe-totribal member sales (hereinafter "Indian-to-Indian sales"), enforcement of State law concerning the Master Settlement Agreement (the Master Settlement Agreement (MSA) is described in further detail below), and the sale of tobacco products manufactured, marketed, and sold in the stream of Indian commerce ("Native Manufactured" products).

2. The Nation is a federally recognized Indian tribe with inherent sovereignty and the power to regulate commerce within the territorial boundaries of its reservation.. The Nation has adopted, consistent with the Nation's Constitution, a tribal code for the regulation of tobacco trade and sales within the Indian country of the Nation ("Tribal Code"). The Tribal Code regulates the shipment, transportation, receipt, possession, distribution, and purchase of tobacco products within the Indian country of the Nation. The Nation also regulates tobacco trade and sales through licensing tribal wholesalers and retailers to sell and trade tobacco within the Indian country of the Nation.

3. Federal law prohibits States from interfering with Indian commerce or from placing undue burdens on Indians, Indian tribes or Indian traders conducting business within Indian country. The State may not interfere with or burden the Nation's right to sell and trade cigarettes of any kind, quantity, and at whatever price deemed appropriate by the Nation to Indians on the reservation. The State may not interfere with or regulate the distribution or sale of tobacco products that are manufactured, marketed, and sold exclusively within the stream of Indian commerce to Indians and non-Indians within the Indian country of the Nation.

4. Without preliminary and permanent injunctive relief, the State will continue to unlawfully regulate and tax Indians, Indian tribes, and Indian traders in violation of the United States Constitution and the laws of the United States. . . .

[CLAIMS] FOR RELIEF

• Creek Nation files lawsuit over state tax code 

The Muscogee (Creek) Nation has filed a federal suit against the governor, attorney general and other state officials claiming they helped violate federal laws by interfering with the tribe's tobacco sales.

The suit was filed Jan. 11 in Muskogee.

A change made to the state's tax code interferes with the tribe's ability to buy and ship cigarettes made by other tribes' tobacco manufacturers, the tribe says. It's asking the court to rule that the state cannot enforce the tax code.

The suit also asks the court to declare that state Master Settlement Agreement regulations and related statutes have no force on Indian lands -- a request that, if granted, could result in major changes in states' ability to regulate tobacco on tribal land.

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• Former Justice O’Connor Sees Ill in Election Finance Ruling  

Justice Sandra Day O'Connor did not sound happy on Tuesday about the Supreme Court's big campaign finance decision last week. It repudiated a major part of a ruling Justice O'Connor helped write before her retirement from the court in 2006, and it complicated her recent efforts to do away with judicial elections.

"Gosh," she said, "I step away for a couple of years and there's no telling what's going to happen."

Justice O'Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors of McConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday. . . .

"These two cases," Justice O'Connor said, referring to Citizens United and Caperton, "should be a warning to states that still choose their judges by popular election."

Then she sketched out what the future might hold.

"We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election," she said. "And maybe tobacco firms and energy companies have enough to win the next one.

"And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome."

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Gosh. I step away for a couple of years and there's no telling what's going to happen.
Former Supreme Court Justice Sandra Day O'Connor, on the Citizen's United verdict.

These two cases [Citizens United and Caperton] should be a warning to states that still choose their judges by popular election. We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election. And maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.
Former Supreme Court Justice Sandra Day O'Connor, assuming lawyers and unions can match the firepower of corporations.