Tobacco.org

• New plea by tobacco company 

In a new plea that U.S. law should not reach overseas, British American Tobacco Co. on Friday asked the Supreme Court to order a second look by lower courts at the federal anti-racketeering law's scope. That law was used in the federal government's massive lawsuit against nearly the entire tobacco industry, including the British firm -- a case the Supreme Court refused to hear, denying seven separate appeals last month. The petition for rehearing (found here) is based mainly on the Supreme Court's broad ruling on June 24 against the overseas reach of U.S. securities law (Morrison v. National Australia Bank, 08-1191).

While conceding that the Court seldom grants rehearing to review a case once denied, the petition said it was "far more common" for the Court to agree to rehear a denied case and then set aside a lower court ruling so that "an intervening decision" by the Justices can be taken into account. The D.C. Circuit Court, it argued, should be told to "consider Morrison's impact in the first instance." In upholding all key parts of a District Court ruling against the industry, BATCo's lawyers contended, the Circuit Court created a "flawed 'exception' to the traditional presumption against extra-territoriality" of a U.S. law based on the alleged "effects" on the U.S. of overseas conduct.

"The D.C. Circuit Court held that RICO [the anti-racketeering law] could properly be applied to BATCo's foreign conduct based on that novel theory, and on its twin conclusions that the 'effects' test could be properly transplanted from securities and antitrust law to RICO and that a severely watered-down version of the 'effects' test is satisfied here," the petition said. The Morrison decision, it added, directly rejected that test for securities law, thus undercutting the Circuit Court's conclusion about BATCo.

Jump to full article »