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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!
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On Sept. 22, 2009, 9 judges of the US Court of Appeals for the DC Circuit turned down Defendants' request for a rehearing of their appeal before all the judges of the Court. There's only one option left for tobacco defendants now: the US Supreme Court.
The PDF is here.
Full text of the order: . . .
O R D E R
Upon consideration of the petitions of Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Altria Group Inc., and British American Tobacco (Investments) Ltd. for rehearing en banc, and the absence of a request by any member
of the court for a vote, it is
ORDERED that the petitions be denied.
On September 28, 2009, the tobacco Defendants asked the US Court of Appeals, DC Circuit to stay issuance of its mandate for the Defendants to adhere to Judge Kessler's order, pending their filing and disposition of a petition for a writ of certiorari to the Supreme Court.
Defendants' motion briefly delineates the arguments they will undoubtedly present in their petition to SCOTUS, mainly, in the words of their motion:
- whether a court of appeals is required to undertake de novo review of factual findings in a case that squarely implicates a defendant's First Amendment rights;
- whether corporations can be part of an "association in fact" RICO enterprise; and
- whether jurisdiction over this case was extinguished by the enactment of new federal legislation [ie, the FDA bill] that imposes comprehensive regulation on every aspect of Defendants' business. . . .
- The balance of equities also weighs strongly in favor of a stay because, in the absence of a stay, Defendants would be required to incur substantial, unrecoverable expenses to comply with the district court's injunctions during the pendency of their petitions for certiorari. . . .
-whether the fraud statutes and First Amendment permit allowing a corporation's specific intent to defraud to be proven through the collective knowledge of various employees, instead of the actual specific intent of one or more particular employees;
-and whether the district court's injunctions are impermissibly vague and overbroad.
This paragraph is particularly intriguing:
The [Appeals Court] Panel held that Defendants had formed an "association in fact" RICO enterprise, and concluded that Defendants were likely to commit future RICO violations-even though they had entered into the MSA with the States in 1998, which categorically prohibited Defendants from engaging in the racketeering activity alleged by the Government.2 In reviewing the district court's findings on this (and every other) issue, the Panel applied the clearly erroneous standard of review (slip op. 45), rather than undertaking an independent review of the district court's factual findings. The Panel applied this "highly deferential" standard (id.) despite the fact that the Government's RICO allegations were premised on Defendants' constitutionally protected speech, including statements that Defendants had made in legislative and regulatory forums as part of the public-health debate about smoking.
The FDA argument was to be expected:
Shortly after the Panel issued its opinion, Congress enacted the Family Smoking Prevention and Tobacco Control Act ("FDA Act"), Pub. L. No. 111-31, 123 Stat. 1776 (June 22, 2009), which subjects every aspect of Defendants' business to comprehensive oversight by the Food and Drug Administration ("FDA"). On July 31, 2009, Defendants petitioned for rehearing or rehearing en banc on the grounds that both the Panel and the full Court should consider the effect of that intervening legislation and reconsider several aspects of the Panel's decision.
The plaintiff's attorneys continued to present the government's opening statement. Ms. Eubanks discussed the development of a "gentlemen's agreement" to restrict in-house biological research. She contended that the defendants refused to provide useful information to the Tobacco Working Group and made other efforts to stymie or neutralize research. She discussed the defendants' promotion and marketing of low-tar and nicotine cigarettes as a way of reducing the risk of adverse health effects. She said that smokers believed the implied message: "low tar cigarettes are less harmful." Mr. Marine then summarized the evidence that will be introduced to show the defendants targeted youth with their advertising. He cited internal documents as proof that the industry viewed youth as replacement smokers. He accused the industry of document destruction and cited specific instances. . . .
105 pages
The witness, an attorney with Shook, Hardy and Bacon Law Firm, testified as a fact witness on behalf of the defendant. He responded to Dr. Schwartz's testimony that everyone deferred to Mr. Hoel regarding environmental tobacco smoke. He laughed at Dr. Schwartz's assertion that Mr. Hoel "seemed to be in charge of the entire industry." He discussed his firm's responsibility to protect the tobacco industry in product liability actions and to ensure the industry's continued viability. He described the positions of Brown & Williamson, American Tobacco Company and Philip Morris on the health effects of environmental tobacco smoke. The witness explained the process of the Special Projects on environmental tobacco smoke. The testimony ended abruptly as Mr. Hoel was rushed to the hospital in an ambulance. . . .
09/22/2009 PER CURIAM ORDER, En Banc, filed [1207501] denying petitions for rehearing en banc [1199505-3] [1199502-3] [1199499-3][1199496-3][1199466-3] Judge Sentelle, Ginsburg,* Henderson,* Rogers, Tatel, Garland,* Brown, Griffith and Kavanaugh* [06-5267, 06-5268, 06-5269, 06-5270, 06-5271, 06-5272, 06-5332, 06-5367, 07-5102, 07-5103] (Circuit Judges Ginsburg, Henderson, Garland and Kavanaugh did not participate in this matter)
09/22/2009 PER CURIAM ORDER filed [1207502] denying petitions for rehearing [1199505-2][1199502-2][1199499-2][1199496-2][1199466-2] Judge Sentelle, Tatel and Brown [06-5267, 06-5268, 06-5269, 06-5270, 06-5271, 06-5272, 06-5332, 06-5367, 07-5102, 07-5103]
09/28/2009 MOTION filed [1208442] by British American Tobacco (Investments) Ltd. and Altria Group, Inc., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5267, Philip Morris USA Inc. and Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company and R.J. Reynolds Tobacco Company in 06-5268, Altria Group, Inc. and British American Tobacco (Investments) Ltd., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5269, R.J. Reynolds Tobacco Company and Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company and Philip Morris USA Inc. in 06-5270, Altria Group, Inc., British American Tobacco (Investments) Ltd., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5271, Lorillard Tobacco Company and Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 06-5272, 06-5332, 06-5367, 07-5102, 07-5103 to stay mandate (Response to Motion served by mail due on 10/13/2009)
Pursuant to FED. R. APP. P. 41(d)(2) and D.C. Circuit Rule 41(a)(2), Defendants respectfully move this Court to stay issuance of its mandate pending the filling and disposition of timely petitions for writs of certiorari. This Court recognized the substantial nature of the arguments raised by Defendants—and the risk of irreparable harm confronting Defendants—when it issued a stay pending appeal. For similar reasons, a stay is also warranted pending the filing and disposition of Defendants’ petitions for certiorari.
A stay is appropriate because the Panel’s opinion raises substantial questions for certiorari, including: (1) whether a court of appeals is required to undertake de novo review of factual findings in a case that squarely implicates a defendant’s First Amendment rights; (2) whether corporations can be part of an “association in fact” RICO enterprise; and (3) whether jurisdiction over this case was extinguished by the enactment of new federal legislation that imposes comprehensive regulation on every aspect of Defendants’ business. The balance of equities also weighs strongly in favor of a stay because, in the absence of a stay, Defendants would be required to incur substantial, unrecoverable expenses to comply with the district court’s injunctions during the pendency of their petitions for certiorari. No other party would be prejudiced by the issuance of a stay because Defendants’ business will continue to be subject to stringent government oversight by the States and the federal Government while their petitions for certiorari are pending.
Upon consideration of the petitions of Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Altria Group Inc., and British American Tobacco (Investments) Ltd. for panel rehearing, it is ORDERED that the petitions be denied.
BEFORE: Sentelle, Chief Judge, and Ginsburg,* Henderson,* Rogers, Tatel, Garland,* Brown, Griffith, and Kavanaugh,* Circuit Judges
Upon consideration of appellants Philip Morris USA Inc., R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co.’s suggestion of mootness and motion for partial vacatur, the opposition thereto, and the reply; and the letters of the United States and Philip Morris USA filed pursuant to Fed. R. App. P. 28(j), it is
ORDERED that the motion be denied.
Several tobacco companies plan to ask the U.S. Supreme Court to overturn a May ruling in a racketeering lawsuit that requires them to disclose more about the dangers of smoking and bars them from selling cigarettes as "light" or "low tar."
The companies asked the U.S. Court of Appeals in Washington, D.C. on Monday not to enforce its May 22 ruling until the nation's highest court can decide whether to hear their appeal. The appeals court declined on Sept. 22 to reconsider the case.
Monday's motion seeking a delay was filed on behalf of Altria Group Inc (MO.N) and its Philip Morris USA Inc unit, British American Tobacco Plc (BATS.L), Lorillard Inc (LO.N) and Reynolds American Inc's (RAI.N) RJ Reynolds Tobacco Co.
Altria Group Inc.,Reynolds American Inc. and other U.S. cigarette makers signaled that they will ask the U.S. Supreme Court to overturn a ruling barring them from selling cigarettes as “light” or “low-tar.”
Altria, the biggest U.S. cigarette maker, and the other companies asked the U.S. Court of Appeals in Washington yesterday to delay implementation of its May 22 decision against them until the Supreme Court decides whether to hear the case.
“Defendants would be required to incur substantial, unrecoverable expenses to comply with the district court’s injunctions,” including the order barring the use of “light” or “low-tar” to describe their products, the defendants claimed in their request.
I am a Distinguished Professor of History at Pennsylvania State University in University Park, Pennsylvania, where I am also Co-director of the Science, Medicine, and Technology in Culture initiative. I have been asked to review the history of tobacco health hazards, focusing also on the history of the tobacco industry's response to evidence of a tobacco hazard. I have also been asked to respond to the February 2002 reports submitted by Kenneth Ludmerer, Theodore A. Wilson, Richard D. Thomas and Peter C. English. I will begin with some historical background, followed by a review of the discovery of tobacco hazards and the tobacco industry's response to these discoveries. I will then respond to the four reports prepared by expert witnesses for the defense.
They've been a long time coming, but harsh new clampdowns on smoking have been signed into law by President Jacob Zuma, who is among the 78 percent of South African adults who don't smoke.
Owners of pubs, restaurants and workplaces who allow people to smoke in non-smoking areas may have sniffed at the paltry R200 fine they faced up to now, but may think twice of flouting the anti-puffing law now that the fine is R50 000.
Partially enclosed patios, balconies and walkways no longer qualify as open spaces, so smoking is out in those spots, too.
Parents can no longer subject their children to smoke-infested areas of restaurants, and adults may not smoke in a car if any of the passengers are under 12. . . .
It's now also illegal for the cigarette companies to stage "by invitation only" parties or use "viral" marketing to target young people - tactics the industry has resorted to since 2000 when advertising was banned. . . .
If the following post on a local blog is anything to go by, it's a strategy that's worked for them. In answer to the question "which brand do you smoke?" someone shared this: "I used to smoke Stuyvesant red. Then one day at RAU these super hot chickies were doing promos for Rothmans so I signed up!
"Ever since then they've been sending me two packs a month and free lighters, free stuff and party invites! Been smoking Rothmans ever since!"
More big changes are expected in the coming months . . .
Interestingly, two weeks after being ordered by US federal court judge Gladys Kessler to publicise the dangers of smoking and to stop marketing so-called "light" and "mild" cigarettes as healthier than others, the tobacco companies returned to court to effectively ask the judge if they could carry on deceiving their overseas markets about "light" and "low-tar" cigarettes.
Altria Group Inc. and other U.S. cigarette makers asked a federal appeals court to reconsider its ruling that the companies violated racketeering laws and barring them from marketing cigarettes as “light” or “low-tar.”
On July 31, Altria and the other companies asked the full U.S. Circuit Court of Appeals in Washington to overturn the decision by a three-judge panel in a case filed by the Clinton administration in 1999. In the May decision, the court upheld a 2006 ruling by U.S. District Judge Gladys Kessler, who found the companies conspired for decades to defraud the public and were likely to violate racketeering laws in the future.
“The panel’s opinion upholds the government’s unprecedented effort to impose pervasive regulation on the tobacco industry, not through legislative channels, but through the Racketeer Influenced and Corrupt Organizations Act,” Altria’s Philip Morris USA unit said in its court filing.
The companies have argued that the ban on “light” and “low-tar” descriptors, which was delayed pending resolution of the appeal, would cost hundreds of millions of dollars and would “fundamentally alter the business landscape.” . . .
In court papers filed July 31, Philip Morris argued that legislation signed in June giving the U.S. Food and Drug Administration new authority to regulate the tobacco industry “makes clear that there is no reasonable likelihood of defendants’ committing future RICO violations.”