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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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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.
e has also represented Apple in hearing loss litigation related to the iPod and General Electric and Philip Morris against injury claims. . . .
What Bernick told us it takes to be a great trial lawyer: The ability to conceptualize the themes that "marry the applicable law with what will be the key and undisputed facts in a way that "will resonate with jurors as embodying fudnamental fairness." The lawyer also must have "total conviction and the ability to show it while maintaining a demeanor of balance and credibility."
It's shocking but true. Bernick is leaving his firm of 32 years to take the top legal job at Swiss-based Philip Morris International. And his explanation for this stunning news was all too prosaic. "I have spent my entire career at Kirkland & Ellis and I am proud to have contributed to the growth and success of one of the top law firms," he said, according to a press release Kirkland e-mailed to the Litigation Daily. "I will remain close to my many friends and colleagues at the firm, but I look forward to pursuing new challenges during the next phase of my career with Philip Morris." . . .
Over the years he's been on the cutting edge of litigation involving breast implants, asbestos, tobacco, and nuclear plants.
If Philip Morris wants to follow the much-touted trend of companies keeping more work in house, they'll have a superstar litigator to turn to.
Kirkland & Ellis announced today that litigation departmatment co-head David Bernick is leaving to join Philip Morris as Senior Vice President and General Counsel, effective March 31, 2010.
Above The Law has firm announcement.
Bernick's departure will be a huge loss for Kirkland -- he is one of their stars and carries a bio a mile long. He recently represented Apple in its victory over plaintiffs claiming hearing loss from using the iPod and won an acquittal for W.R. Grace in a long-running asbestos case. (Just this week, in fact, we named him to our top litigators list.)
From the official firm statement: "I have spent my entire career at Kirkland & Ellis and I am proud to have contributed to the growth and success of one of the top law firms," Bernick said. "I will remain close to my many friends and colleagues at the Firm, but I look forward to pursuing new challenges during the next phase of my career with Philip Morris."
This will not be just a move across town -- Berdick will be leaving New York for the hills of Switzerland.
Tobacco company lawyers met with U.S. Solicitor General Elena Kagan last month to urge her not to file a Supreme Court appeal in the government’s racketeering case against the industry, an official involved in the Justice Department’s deliberations about the case said.
The meeting, reported by the Associated Press earlier today, ultimately might lead to settlement talks, though the two sides haven’t had any contact since then, the person said. . . .
Estrada, reached by phone, declined to comment. Two Reynolds spokesmen, David Howard and Tommy Payne, didn’t immediately respond to voice mail messages and e-mails left after normal business hours. Carvin didn’t immediately respond to an e-mail. Calls to Altria weren’t immediately returned.
Tobacco company lawyers met with U.S. Solicitor General Elena Kagan last month to urge her not to file a Supreme Court appeal in the government’s racketeering case against the industry, an official involved in the Justice Department’s deliberations about the case said. . . .
The solicitor general often meets with litigants to hear their arguments before the government takes a position at the Supreme Court. Kagan also met with lawyers for anti-tobacco activists who are involved in the case, according to a private lawyer familiar with those discussions. . . .
Tracy Schmaler, a Justice Department spokeswoman, said in an e-mail that she couldn’t confirm the meeting with tobacco industry lawyers.
As part of any effort to convince the government that it should skip a trip to the Supreme Court, the tobacco companies may have to drop plans to ask the justices to overturn the ruling that the industry engaged in racketeering.
On behalf of the industry, Washington lawyers Michael Carvin and Miguel Estrada made their pitch against seeking Supreme Court review in a mid-December meeting at the Justice Department with Kagan, according to two Washington attorneys outside the government who are familiar with the meeting in her office.
In the meeting, Carvin and Estrada left the impression the industry might be willing to end plans to see a high court appeal of its own, if the Justice Department would do the same, said the Washington attorneys, who spoke on condition of anonymity so that they could discuss the private meeting with Kagan.
The discussion with Estrada and Carvin resulted in an internal department meeting a few days later. At this meeting, department lawyers discussed the possibility of seeking billions of dollars from the industry as part of a possible negotiated settlement of the suit, according to one of the private attorneys who learned about this second meeting from participants.
The department, the industry or both could request that the Supreme Court take the case, while at the same time asking that the case be delayed while the two sides try to work out a deal.
by the end of the Clinton Administration over 32 million e-mails created or received within the Executive Office of the President had been electronically preserved for accessioning with the National Archives and Records Administration (NARA).48 [16] The 32 million e-mails were a prime subject of discovery in U.S. v. Philip Morris, the RICO lawsuit filed by the government in 1999 against numerous tobacco companies.49 In that action, defendants filed 1,726 requests to produce against 30 agencies, requesting U.S. records going back to the early 1950s, as well as all relevant e-mails. The government responded to discovery as best it could using its available resources – but decidedly in what will be deemed here as a “pre-FRCP rules change mode,” namely: with respect to e-records, government lawyers oversaw searches by unilaterally choosing the set of search terms using simple keywords.50 Later, a secondary search was conducted based on limited negotiations held with and input from defendants with respect to additional keywords.51 45 46 See id. at 347-48. Thomas E. Brown, History of NARA’s Custodial Program for Electronic Records: From the Data Archives Staff to the Center for Electronic Records, 1968-1998, in THIRTY YEARS OF ELECTRONIC RECORDS 16 (Bruce Ambacher ed., 2003). 47 See Armstrong v. Executive Office of the President, 877 F. Supp. at 715 (Exhibit C, setting out guidance issued to White House staff at what was the onset of the “paperless” era for retention of e-mail within the EOP). 48 See Allen Weinstein, Archivist of the United States, Ask the White House (Jan. 17, 2006), http://www.whitehouse.gov/ask/20060117.html. 49 See United States v. Philip Morris USA, 449 F.Supp.2d 1 (D.D.C. 2006) (1,600 page opinion by Judge Gladys Kessler). 50 Keywords included such common terms as “tobacco,” “smoking,” “cigarette,” “tar,” “nicotine,” and “Philip Morris.” See Jason R. Baron, Toward a Federal Benchmarking Standard for Evaluating Information Retrieval Products Used in E-Discovery, 6 SEDONA CONF. J. 237, 239 (2005). 51 Id. 11
Slide 12: Richmond Journal of Law & Technology Volume XIII, Issue 3
[17] For the 18 million presidential record e-mails within NARA’s legal custody, the search process found a universe of some 200,000 “hits,” of which over 100,000 were later determined to be responsive in evidencing tobacco policies and practices.52 In undertaking a second-stage manual search to determine responsiveness, it was necessary to put into place a team of twenty-five lawyers, law clerks, and archivists working at NARA more or less full time over a period of six months, reviewing 200,000 emails on CDs, e-mail by e-mail, attachment by attachment, for the purpose of printing out hard copies to be used.53 Additional time and resources were needed to make a further review for privilege.54 [18] The approach taken by the government in Philip Morris most charitably represented a stopgap set of measures put in place to deal with a burdensome search request which placed strains on administrative resources. But the essentially unilateralist, pre-December 1, 2006 FRCP rules-changes approach to confronting a difficult search task clearly fails to scale up; for were the e-mail universe ten times as large, it would have been impossible to assemble a large enough team of reviewers to devote the time for them to manually review each e-mail “hit,” and its attachments, for responsiveness and privilege. [19] Critically, as of January 20, 2009, NARA expects to receive substantially over a hundred million e-mails from the current incumbent White House.55 At the present rate of e-mail creation, NARA expects to receive over one billion e-mails over the course of the next decade as permanently accessioned records of the government. Some parties in litigation have apparently already crossed the billion electronic document threshold.56
Summary:
The Foundation's Substance Abuse Policy Research Program was designed to provide support for investigators to conduct policy research on a variety of subjects directed at helping the country reduce the harm caused by substance abuse. In August 2006, the U.S. Federal Court ruled that the major domestic cigarette manufacturers were guilty of conspiracy to deceive the American public about the health risks of smoking. Judge Kessler ordered a series of remedies designed to respond to the racketeering conduct of the cigarette manufacturers, including the dissemination of corrective statements in newspapers, television, advertisements, cigarette package onsets, retail displays, and Web sites. These corrective statements are intended to address addiction, adverse health effects caused by smoking, adverse health effects of secondhand smoke exposure, manipulation of the physical and chemical design of cigarettes, and the fallaciousness of low tar cigarette marketing. This study will use a survey and eye-tracking to compare the responses (post survey and at one week) of randomly assigned smokers and nonsmokers to the corrective statements developed by the three parties in the case, as well develop and evaluate a pictorial version. Main outcomes include participants' understanding of the messages communicated in the statement, perceptions of tobacco industry manipulation, knowledge and perceptions of the message communicated, and attention paid to and recall of different components of the corrective statement.
Grant Details:
Approved award: $98,523 Awarded on: Aug 17, 2007 Time frame: Sep 1, 2007 - Aug 31, 2010 Grant number: 63113 This grant is associated with the RWJF National Program: Substance Abuse Policy Research Program
On July 31, 2009, defendants filed petitions for a rehearing before the panel and for a rehearing by the entire Court of Appeals. Defendants also filed a motion to vacate portions of the trial court's judgment on the grounds of mootness because of the passage of legislation granting FDA broad authority over the regulation of tobacco products. On September 22, 2009, the Court of Appeals entered three per curiam rulings. Two of them denied defendants' petitions for panel rehearing or for rehearing en banc. In the third per curiam decision, the Court of Appeals denied defendants' suggestion of mootness and motion for partial vacatur. On September 28, 2009, defendants petitioned the Court of Appeals to issue a stay of its mandate pending the filing and disposition of petitions for writs of certiorari to the United States Supreme Court. On October 21, 2009, the Court of Appeals granted the motion in part, staying the issuance of the mandate until December 28, 2009. Defendants' certiorari petitions are scheduled to be filed in December 2009. The trial court's judgment and remedial orders remain stayed.
Nov 9 2009 Application (09A443) to extend the time to file a petition for a writ of certiorari from December 21, 2009 to February 19, 2010, submitted to The Chief Justice.
Nov 10 2009 Application (09A443) granted by The Chief Justice extending the time to file until February 19, 2010.
Results: The US tobacco industry faced a far greater number of lawsuits, and a greater variety of types of lawsuit, between 1994 and 2005 than it had in previous years. Plaintiffs won 31 (41%) of the 75 cases that were tried to verdict during the years 1995–2005. Seven plaintiffs have been paid awards totalling US$115 million, including interest, following the exhaustion of appeals. Based on an evaluation of litigation brought against US industry leader Philip Morris, the total number of cases pending peaked in 2000, dropping off modestly since then. For example, 36 class actions were pending in 2000, while 33 were pending in 2005. In the same time period, individual actions fell from a total of 3385 to 2863. While the playing field has been levelled to some degree in the tobacco litigation arena with respect to the resources brought to bear by plaintiffs and defendants, tobacco industry defendants continue to employ far greater financial and human resources than their adversaries.
Conclusions: The third wave of tobacco litigation has represented a sea change in efforts to hold the tobacco industry in the United States accountable in American courtrooms. While tobacco manufacturers continue to do their utmost to make these cases difficult to pursue, many of the cases that have gone to trial have met with success in recent years, which suggests that plaintiffs’ lawyers are now better equipped to persuade juries of the defendants’ culpability. . . .
What this paper adds
A limited amount of peer-reviewed analysis has been conducted previously regarding the “third wave” of tobacco litigation. Earlier studies, now outdated, documented the number of legal cases filed against major cigarette manufacturers and discussed the characteristics of the third wave.
This study constitutes the most up-to-date qualitative and quantitative analysis of the legal cases brought against the major US tobacco manufacturers during the third wave of tobacco litigation. It reviews recent changes in federal and state law and their effect on efforts to hold the tobacco industry accountable in courts of law. The study presents and analyses data drawn from the Tobacco Deposition and Trial Testimony Archive. The study also analyses updated information regarding the financial and human resources employed by major tobacco companies to defend themselves in court.
On another front, the industry has worked to reduce its liability through the passage of legislation. Tort reform adopted at the state level has, at times, given protection from liability to tobacco manufacturers.39 In addition, at least 33 states, with encouragement from the tobacco industry, have passed laws to limit the size of appeal bonds.40 These laws reduce the size of the bond that a losing defendant must post in order to stay an adverse judgment during an appeal. In 11 states, the caps on appeal bonds affect only cigarette manufacturers.41
In February 2005, the US Congress approved, and President George W Bush signed into law, the “Class Action Fairness Bill of 2005”. The law is designed to shift most class actions from state courts to the federal court system, which is generally more hostile to class actions than are the state courts.42 In a press release,43 US Senate Democratic leader Harry Reid said:
“Yet another real world effect of this bill is to help the tobacco industry avoid accountability. This bill’s requirements virtually guarantee that tobacco-related cases will end up in federal court since the major tobacco companies are all headquartered in only one or two states while tobacco victims are nationwide.”
One of the most recent and important legal decisions against a tobacco company was announced by the Oregon State Supreme Court on 2 February 2006. The unanimous court affirmed a 1999 verdict of $80.3 million against Philip Morris in the case of Williams-Branch v. Philip Morris, Inc.44 “Philip Morris’s conduct was extraordinarily reprehensible,” the court wrote in its decision, ruling that the high punitive damage award was justified. The US Supreme Court announced that it will review that ruling, with the final decision anticipated in mid-2007.45 In another case, the Supreme Court announced on 20 March 2006 that it would not review the 2001 verdict in Boeken v. Philip Morris, Inc. Consequently Philip Morris was ordered to pay $82 million, including interest, to the widow of a longtime smoker of Marlboro cigarettes.46
In the future, as the large, aggregated claims that have characterised the third wave run their course, it is possible that a fourth wave of tobacco litigation will emerge, fuelled by the ever-growing availability of internal industry documents and public anti-smoking sentiment. Such a new wave might feature an increase in types of litigation that, until now, have been seen to only a limited degree, including legal actions relating to secondhand smoke exposure and deaths due to cigarette-caused fires, which often involve victims who did not themselves smoke cigarettes.
The following litigation resources document the U.S. Department of Justice civil lawsuit against the major tobacco companies under the Racketeer Influenced and Corrupt Organizations (RICO) statute. For related documents, visit the U.S. Department of Justice's Litigation Against Tobacco Companies website.
THIS IS IT!
The Ronald M. Davis Tobacco Deposition & Trial Testimony Archive at Tobacco Documents Online (TDO) has the collected transcripts and depositions of UNITED STATES OF AMERICA v. PHILIP MORRIS INC-complete with abstracts(!)
MANY THANKS to the staff of Michigan Public Health Institute's Center for Tobacco Use Prevention & Research.
FEAST!