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tobacco lawsuits

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much moved here from main node

merri ok

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https://www.motherjones.com/environment**/2022/03**/environmentalist-lawyer-fighting-protect-big-oil-litigation-astroturf-phil-goldberg-map/

NO lnx guk?

in the spring of 2019, Phil Goldberg, a lawyer and hired gun for a front organization serving some of America’s most powerful oil firms, spotted an opportunity to serve his masters.

The University of Hawaii was holding a conference about a wave of lawsuits against the oil industry, and Goldberg was alarmed the event failed to include representatives from the energy business. So the day before the symposium, he fired off an email to the university demanding that big oil be heard alongside its critics.

The event was to interrogate the oil industry’s decades-long cover-up involving the climate crisis. But a one-sided debate, Goldberg wrote, “does students and the general public a significant disservice.” He insisted the meeting be postponed.

Denise Antolini, associate dean at the university’s law school who organized the conference, said in her 23-year-career as a law professor, she had never received such demands. “Your request to disrupt our public event was quite surprising, especially coming from far across the continent, from someone I’ve never heard of, on behalf of a private client with an apparently direct financial interest in chilling debate about climate litigation,” she replied.

The conference went ahead, but Goldberg chalked up his intervention as a win. He had managed to pressure Antolini into reciting his objections to the conference in her opening statement. He also convinced the university to post his blogs on its website alongside a letter published by the Honolulu Star-Advertiser denouncing the meeting for daring to suggest there was a solid legal case against the oil companies.

Goldberg is part of a network of enablers working to preserve big oil’s power and reputation as it faces a barrage of litigation. More than two dozen cities, states and municipalities allege the industry lied to Americans for decades by downplaying and outright denying that fossil fuels caused climate change. The lawsuits demand companies use some of their vast profits to help pay for the human toll of the climate crisis, including the damage brought by rising seas and increasingly severe weather disasters.

Big Oil “has this ability to really take command of the societal narrative on a whole level that the tobacco industry just didn’t.”

Desperate to avoid costly settlements, the fossil fuel industry relies on front organizations to discredit the litigation and sway public opinion in its favor. So nearly three years ago, the friends of big oil turned to Goldberg, a former Democratic congressional aide and self-described “committed environmentalist,” HIPPIE CHICK to persuade Americans that the companies responsible for the growing climate disaster are now the ones to fix the problem.

Though Goldberg heads an ostensibly independent initiative called the Manufacturers Accountability Project, much of its funding comes from some of the biggest names in the oil business. MAP hired Goldberg to push back against litigation on the fossil fuel industry’s behalf,allowing oil companies to keep their hands clean in the process.

Goldberg is leading a charge in local media to discredit those suing the fossil fuel industry as a “fringe litigation movement” conspiracy of opportunistic politicians, environmental extremists, and money-grasping lawyers who pose a threat to the American way of life. // ENTINE

“There are two goals of this litigation—drive climate policy and wage a public relations campaign against the energy industry,” Goldberg told the Guardian. “It has no foundation legally and, more to the point, is not the right way to fight climate change.” LOMBORGIAN

Karen Sokol, a law professor at Loyola University who specializes in climate litigation, likens the strategy to that pursued by the tobacco industry when it faced litigation over what it knew about cigarettes causing lung cancer. But, she said, the strategy may prove more successful for big oil.

“The fossil fuel industry has this ability to really take command of the societal narrative on a whole level that the tobacco industry just didn’t because, although we were definitely a cigarette culture for a time, not everybody was so dependent on cigarettes in the same way we are on fossil fuels,” she said.

Kert Davies, founder and director of Climate Investigations Center, is scathing about Goldberg’s part in that. “Phil Goldberg is a useful pawn on a much larger chessboard. If he doesn’t know that, it’s a shame,” Davies said. “If he does know his role, it’s worse.”

Outwardly, Goldberg seems an unusual bearer of the torch to snuff out climate lawsuits. The New Jersey-born lawyer characterizes himself as a “progressive, pro-environmentalist” with a long commitment to Democratic causes. With that, he has positioned himself as a voice of reason as he leads the fossil fuel industry’s campaign to distract Americans from the scene of the crime and embrace big oil as a necessity in the struggle to contain global heating.

But Goldberg is also a former coal lobbyist now working as an attorney for a Kansas City law firm—Shook, Hardy and Bacon—that made its name decades ago as the cigarette industry’s attack dog. The legal practice even gained public notoriety for inspiring the fictional law firm of Smoot, Hawking in the satirical book turned film, Thank You for Smoking.

“What a sad and disquieting chapter in the history of an honorable and often courageous profession.”

Shook, Hardy pioneered a strategy toward avoiding corporate accountability—a denial strategy the oil companies followed not many years later. Starting in the mid-80s, the firm convinced cigarette companies to shut down research into the dangers of nicotine, warning it could be used against them in court. It also hired specialists with advanced scientific degrees to cast doubt on the evidence that smoking causes lung cancer. The firm’s lawyers soon developed a reputation for probing the lives of people who dared to sue the tobacco firms and for using court procedure to draw out cases until plaintiffs ran out of funds.

All of this so disgusted one federaljudge, Gladys Kessler, that in a damning 2006 civil judgment against the cigarette makers she said Shook, Hardy and other firms played “an absolutely central role in the creation and perpetuation” of a 50-year campaign of deceit.

“They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the (tobacco industry) would be protected,” she wrote. “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”

The chapter cemented Shook, Hardy’s reputation for vigorously defending clients and drew other contentious industries to the firm. And since joining Shook, Hardy in 2003, Goldberg has lived up to its reputation for playing hardball.

Throughout his career, Goldberg has developed an expertise at combatting public accountability lawsuits on the behalf of many embattled corporate clients, includingcoal companies, the asbestos industry, and pharmaceutical companies accused of medical malpractice.

Goldberg has also advised the American Legislative Exchange Council on drafting laws to make it harder to sue big corporations.

Simultaneously over the last two decades, he has led a wing of the Democratic think tank, the Progressive Policy Institute, that works to protect corporations from lawsuits and to keep regulatory changes in the hands of politicians who can be influenced by industry money and lobbyists. Goldberg has also advised the right-wing American Legislative Exchange Council on drafting laws to make it harder to sue big corporations.

Goldberg’s current defense of the fossil-fuel industry is equally focused.He deflects questions about Big Oil’s cover-up of its own scientific research on global heating by claiming that raking over the past is not going to help find solutions to the climate crisis. He also avoids answering questions about parallels with the tobacco industry’s actions.

Instead, Goldberg has sought to nurture a progressive image with claims to be dedicated to the climate fight but concerned that suing oil companies is getting in the way of solutions. He goes out of his way to say that he “cares deeply about climate change” and, in his answers, returns repeatedly to “the important work that needs to be done on the climate.”

This image was carried through to the Guardian‘s photographs for this article, which Goldberg agreed to pose for only while riding his bicycle. He declined to remove his helmet for any of the pictures.

Today, Goldberg is at the face of a PR campaign to squash climate litigation against Big Oil. He calls his strategy the “iron triangle defense.” One side of the triangle is dedicated toward shaping the public narrative, the second is for pressuring legislatures to write laws that discourage corporate accountability litigation, and the third side influences the judicial process with amicus briefs in cases that might have a bearing on those lawsuits.

A key part of the iron triangle strategy is that its beneficiaries should not be seen as the ones who are pulling the strings. Corporations fighting legal battles learned long ago that Americans are not particularly trustful of executives in suits. So major industries seek to influence public opinion and political action by funding front organizations to work on the behalf of corporate interests, but under a different name.

It was an obvious move for the fossil-fuel industry to turn toward front groups as it grew increasingly alarmed in recent years at a surge in lawsuits demanding compensation for damage caused by the climate crisis. Oil executives feared a repeat of the tobacco industry’s fate when public opinion turned sharply against the cigarette makers, forcing the largest civil settlement in US history.

“Say a new locality files a suit … Suddenly the local press is infiltrated with Goldberg quotes. He fires out op-eds.”

Major oil firms, including Exxon, Shell and Chevron, looked to the National Association of Manufacturers, one of the US’s most powerful business lobby groups, with a long history of creating front organizations at the behest of various industries, to help“combat frivolous, politically motivated lawsuitsagainst energy manufacturers.”

Four years ago, NAM launched a group, the Manufacturers Accountability Project, to take the campaign in defense of big oil on to the streets and into the local media. A year later, it recruited Goldberg to lead the initiative. While much of their strategy is an attempt to intimidate litigants through the legal process, Goldberg’s role is to take the fight to local communities in an attempt to mold public opinion—and potential jurors—before the cases come to court.

From local newspapers to NPR, Goldberg pushes arguments designed to deflect from the fossil fuel industry’s responsibility for the climate crisis. “Those of us who care deeply about climate change, our economy, and our way of life must focus our elected leaders on game-changing innovations, not these politically-driven litigations,” he wrote in the New Jersey Globe after three New Jersey senators pressed the state to sue Big Oil to pay up for the costs caused by their deceptions.

Goldberg has pursued similar lines after the attorneys general of Vermont and Connecticut filed cases against the oil industry. “We should be fighting climate change instead of each other,” he reasoned in the local press.

Sokol, the law professor and climate litigation specialist, said she saw Goldberg’s intervention tactics everywhere there is a lawsuit against the fossil fuel industry. “Say a new locality files a suit… Suddenly the local press is infiltrated with Goldberg quotes. He fires out op-eds,” she said. “It’s a concerted battle against this litigation, which in many ways is a testament to how powerful the industry suspects this could be if it’s allowed to have its day in court.”

Still, even in Goldberg’s home state, there are plenty who are not buying it. In 2020, three New Jersey state senators pressed the state to sue Big Oil to pay up for the past and present costs caused by their deceptions.

“Rather than alert the public and help usher in the transition to clean energy, big oil took a page out of big tobacco’s playbook and funded and led a decades-long campaign to lie, deceive, and confuse the public about the science of climate change,” two of the senators, one Democrat and one Republican, wrote in USA Today. “It’s only fair that these fossil fuel companies who got rich while igniting the climate crisis are made to pay their fair share of the costs to our communities.”

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http://www.sourcewatch.org/index.php/The_U.S._Government's_racketeering_case_against_Big_Tobacco

On September 22, 1999, the United States Department of Justice, under the Admistration of then-President William J. Clinton, filed a racketeering lawsuit against the major cigarette manufacturers and two industry affiliated organizations.the The U.S. Government sought $280 billion in penalties on the grounds that the tobacco companies had conspired to deceive the public about the dangers of smoking.

The defendants in the case were:

Specifically, the Department of Justice (DOJ) alleged that the cigarette industry has purposely and fraudulently misled the public about the risks and dangers of cigarette smoking. The government alleged that "the Defendants have engaged in and executed – and continue to engage in and execute – a massive 50-year scheme to defraud the public, including consumers of cigarettes, in violation of RICO".[Taken from DOJ Final Proposed Findings of Fact (FPFF), Executive Summary, page 1.]

DOJ's Proposed Finding of Fact in the case alleged that starting in 1953 the Defendant tobacco companies met and engaged in a conspiracy to launch a public relations campaign to counteract the growing body of scientific evidence showed cigarettes were harmful, while at the same time the Defendants' own internal scientific research confirmed the findings that cigarettes caused disease, death and addiction. The object of this campaign was to maximize the number of smokers and profits, and "to avoid adverse liability judgments and adverse publicity." {DOJ FPFF page 3].

Parts of the Government's case were dismissed. The government originally sought reimbursement for tobacco-related disease medical expenses paid as required by Medicare, according to the Medicare Recovery Act 42 U.S.C. 2651-53; and Medicare Secondary Payer Act, 42 U.S.C. 1395. The judge dismissed these claims, ruling that the statutes did not permit the type of recovery sought by the government.[~ cei BS?)

Because the DOJ sought only equitable relief, and because such relief is only granted by a judge, the case was not heard by a jury, but a single Federal judge, Gladys Kessler of U.S. District Court.

Contents

Attempts to exert political influence over the case

A January 30, 2000 internal Philip Morris (PM) email written by Greg Little (Associate General Counsel for PM) indicates astrong and successful effort by PM to exert political influence over the course of the U.S. Department of Justice lawsuit against the American tobacco companies. Little credits PM's DOJ Team [Department of Justice Team] with silencing the White House on the suit, reducing federal funding for the suit, neutralizing political pressure around the suit and creating a beneficial atmosphere for the company during litigation.

The entire text of Little's memo is as follows:

I would like to take this opportunity to thank this group for doing such a great job. It was a privilege to work with you. When you look back to last year's State of the Union Address, I think most people assumed that the DOJ suit would turn into a constant barrage of attacks by the White House, joined by the Anti's and supported by a well-funded Justice Department suit. Instead, since the formation of the PM DOJ Team, Congress refused to fund the suit, the White House has been noticeably silent, and the Anti's have had to turn their attention elsewhere. You should consider it a tremendous accomplishment that, since the filing of the suit, the only comment from DOJ has been "we will do our talking in court." I suspect that view has little to do with professionalism, and everything to do with recognizing that this suit is not politically popular. You deserve great credit for creating that atmosphere and we in litigation greatly appreciate it. Now that you have neutralized the political pressure we will do our very best to have this suit dismissed on legal grounds. If we succeed, it will be due in large part to your efforts. Thank you.[1]

Conviction

After 6 years of litigation, 9 months of trial, hundreds of depositions and thousands of exhibits, on August 17, 2006 U.S. District Court Judge Gladys Kessler ruled that the Government had proven its case and found that the tobacco company defendants have violated the Racketeer Influenced Corrupt Organizations Act (RICO).

Final Findings

Based on the evidence presented in the case, Judge Kessler ruled that:

Website on the case

Other SourceWatch resources

External links

Legal Documents From the Case

General Articles

Categories: 

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A step forward in implementing the RICO ruling against Big Tobacco

Submitted by sglantz on Fri, 2014-01-10 12:46

Eight years ago, in 2006, US District Court Judge Gladys Kessler convicted the big cigarette companies and their trade and scientific groups of forming an illegal racketeering "enterprise" to defraud the American people and, among other things, ordered the cigarette companies to publish "corrective statements" telling the public that they had lied about the dangers of smoking, secondhand smoke, and nicotine addiction.  (Judge Kessler also prohibited them from challenging the evidence that these statements are true, which is why the companies no longer do so.)

Judge Kessler ordered the defendant tobacco companies to work with the Department of Justice and the public health intervenors to determine just how the corrective statements would be made on the internet, in print, and on television and radio.  These negotiations have now concluded and a draft ruling submitted to the Court.

The tobacco companies appealed Judge Kessler's corrective statements on First Amendment grounds a year ago.  That appeal has been on hold pending resolution of the implementation issues that this agreement resolves.  That appeal will now likely proceed.

Of course, if the tobacco companies have "changed," they could drop their appeal and let Judge Kessler's order on the specific corrective statements take effect using today's implementation details.

I'm not holding my breath.

If you want to learn more about the history of the case, check out Bad Acts, the book Sharon Eubanks and I wrote about the case.

Here is the announcement that the public health intervenors sent out, which provides more details:

Legal Agreement Moves Tobacco Companies Closer to Finally Telling the Truth to the American People

Statement of the Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights and National African American Tobacco Prevention Network

WASHINGTON, DC –As the nation marks the 50th anniversary of the first Surgeon General’s Report on Smoking and Health, the major cigarette companies are nearing the day when they must finally come clean to the American people and end decades of deception that have resulted in the addiction, illness and death of millions.

Today, the U.S. Department of Justice and lawyers for the tobacco companies told a federal court that they have reached agreement on the details of how they would implement the “corrective statements” ordered by U.S. District Judge Gladys Kessler in 2006, when she found the companies guilty of violating civil racketeering laws and lying to the public about the dangers of smoking and their marketing to children.

While this agreement is an important step forward, it is not the end of the long legal battle to hold the tobacco industry accountable for its unconscionable behavior and prevent that behavior from continuing. The tobacco companies have filed time-consuming appeals at every stage of this 15-year lawsuit and reserved the right to appeal the specific language of the corrective statements ordered by Judge Kessler. We urge them to end their delay tactics and finally tell the truth to the American people. 

The U.S. Court of Appeals for the DC Circuit has rejected two previous industry appeals of Judge Kessler’s landmark 2006 decision, and we expect the appellate court would do so again.  Today’s agreement ensures that when all potential appeals are exhausted, the corrective statements will be ready to run without further delay.

To prevent the industry’s deception from continuing, Judge Kessler ordered the companies to make corrective statements through television and newspaper advertising, on the companies’ web sites and on cigarette packaging. In a November 2012 order specifying the language of the corrective statements, Judge Kessler ordered the tobacco companies to state in each statement that a federal court had ruled the companies “deliberately deceived the American public.” The five corrective statements will address the companies’ deceptions regarding 1) the health effects of smoking; 2) the addictiveness of smoking and nicotine; 3) the false advertising of low-tar and light cigarettes as less harmful than regular cigarettes; 4) the designing of cigarettes to enhance the delivery of nicotine; and 5) the health effects of secondhand smoke. 

The agreement filed with the court today spells out the specific details for implementing the corrective statements and includes mockups of the TV and newspaper ads, cigarette pack onserts and web site statements. Judge Kessler must approve the agreement.Judge Kessler’s original order also required the companies to make the corrective statements through retail point-of-sale displays, but litigation is continuing over whether the companies must make the corrective statements in those venues.

Appropriately, this agreement comes as the nation marks the 50th anniversary of the first Surgeon General’s Report on Smoking and Health, which was issued on January 11, 1964, and officially alerted the public to the deadly consequences of smoking.  Even before that report was issued, the tobacco companies had launched their fraudulent scheme to counter growing public concern and deceive the American people about the dangers of smoking. 

:{Judge Kessler’s verdict and the corrective statements she ordered are necessary reminders that tobacco’s devastating toll over the past 50-plus years is no accident.  It stems directly from the tobacco industry’s deceptive and even illegal practices.  As Judge Kessler found, “[This case] is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. 

Defendants have known many of these facts for at least 50 years or more.  Despite that knowledge, they have consistently, repeatedly and with enormous skill and sophistication, denied these facts to the public, the Government, and to the public health community.”  }:Importantly, Judge Kessler found that “the evidence in this case clearly establishes that Defendants have not ceased engaging in unlawful activity.”

Our six public health organizations – the American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, National African American Tobacco Prevention Network and the Tobacco-Free Kids Action Fund (a 501c4 affiliate of the Campaign for Tobacco-Free Kids) – joined the case as intervenors in 2005.

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http://en.wikipedia.org/wiki/Tobacco_packaging_warning_messages

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master settlement/RICO

The Tobacco Master Settlement Agreement (MSA) was entered in November 1998, originally between the four larges tUnited States tobacco companies (Philip Morris Inc., R. J. Reynolds, Brown & Williamson and Lorillard– the original participating manufacturers) and the attorneys general of 46 states. The states settled their Medicaid lawsuits against the tobacco industry for recovery of their tobacco-related health-care costs, and also exempted the companies from private tort :{liability}: regarding harm caused by tobacco use.[]:25

 In exchange, the companies agreed to curtail or cease certain tobacco marketing practices, as well as to pay, in perpetuity, various annual payments to the states to compensate them for some of the medical costs of caring for persons with smoking-related illnesses. The money also funds a new anti-smoking advocacy group, called the American Legacy Foundation, that is responsible for such campaigns as The Truth. The settlement also dissolved the tobacco industry groups **Tobacco Institute**, the Center for Indoor Air Research, and the Council for Tobacco Research. In the MSA, the original participating manufacturers (OPM) agreed to pay a minimum of $206 billion over the first twenty-five years of the agreement.

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In 1994, the Attorneys General of four states—Mississippi, Minnesota, Florida, and Texas—separately filed lawsuits against the tobacco industry in an effort to secure reimbursement for health care expenditures arising from tobacco-related illnesses. During the course of this litigation, 42 other states joined in similar legal actions. In 1998, a Master Settlement Agreement (MSA) was signed by the Attorneys General of 46 states and the nation's five major tobacco companies: Philip Morris, R. J. Reynolds, Lorillard, Brown & Williamson, and the American Tobacco Company. The MSA effectively settled the outstanding lawsuits by requiring yearly payments by the tobacco companies to the states and placing restrictions on the advertising and marketing of tobacco products. The MSA provisions also created and currently fund theAmerican Legacy Foundation, an anti-smoking advocacy group, which in turn funded the creation of the Legacy Tobacco Documents Library as well as its ongoing maintenance and collection activities.

As part of this Master Settlement Agreement, the U.S. tobacco companies were ordered to release the internal documents produced for the case for public access in both a physical depository in Minnesota and on their own document websites. The international tobacco company, British American Tobacco, was not mandated to provide a document website but they were required to deposit documents into a physical depository in Guildford, England. The National Association of Attorneys General (NAAG) provides oversight and enforcement of this operation. In 2006, U.S. District Judge Gladys Kessler ruled in a separate case that the nation's top tobacco companies violated racketeering laws, misleading the public for years about the health hazards of smoking. These companies were convicted under the Racketeer Influenced and Corrupt Organizations Act (RICO Act). Philip Morris and R.J. Reynolds filed an appeal but Judge Kessler's ruling was upheld. As a result of this case and its appeals, the companies are now obliged to make available any documents produced for litigation on smoking and health until 2021.[2]

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Big picture: Tobacco co's were early target b/c they have a product whose only purpose is to kill; as with chemical industry (and later fossil fuel) they had own research of harm they kept secret.  Also pioneer in creating doubt of science strategy.

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m o d

by early 60's tob co's knew cancer, addictive etc 21, brit co admitted no controversy?

busted for racketeering RICO 31

by end of 90's most ppl know tob harmful, but 30% could not name specific illness 33, 25% said no harm p 33

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Lawsuit:

Tobacco Litigation and Enforcement

In 1998, landmark litigation by California and dozens of other states against the major U.S. tobacco companies, over decades of allegedly deceitful advertising and marketing of tobacco to children, produced far-reaching changes in the way cigarettes and smokeless tobacco products are advertised and promoted in California and across the nation.

The changes resulted from the historic Master Settlement Agreement, or “MSA”, in which the four largest tobacco companies agreed to restrictions on their marketing practices and to pay billions of dollars annually to the states.

Gone now are cartoon characters in cigarette ads, like the infamous Joe Camel, that appealed to youngsters, along with cigarette ads on billboards along our highways and T-shirts, caps and gear bags adorned with tobacco brand names. These and many other marketing restrictions now apply to an overwhelming majority of U.S. tobacco companies, as over 40 other tobacco companies have joined the MSA since 1998. Health experts confirm that most people can avoid becoming addicted to the nicotine in tobacco products if they can stay tobacco-free during adolescence and young adulthood.

Through April 2010, tobacco companies have paid more than $74 billion to California and 45 other states, with California’s $9.3 billion share being divided between the state and the state’s counties and four largest cities.

The Attorney General's Tobacco Litigation and Enforcement Section holds the tobacco industry accountable for strict compliance with the MSA’s marketing restrictions and payment obligations. In addition, the Tobacco Section enforces a number of state laws and programs that regulate the promotion and sale of cigarettes and other tobacco products in the state, including the state’s Tobacco Directory, which lists the brands of cigarettes that may lawfully be sold in California.

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nolo:

Smokers, their families, and government entities have been filing lawsuits against tobacco companies for more than half a century. Over the years, tobacco litigation has seen a number of changes -- from the theories of liability used by plaintiffs to the legal defenses mounted by cigarette manufacturers. Read on to learn the history of tobacco litigation and to get an idea of the types of smoking-related lawsuits being brought today. (To learn about other products and chemicals that have been the subject of litigation, see Nolo's article Toxic Torts Overview.)

The First Lawsuits Against Cigarette Manufacturers

When the first reports emerged linking cigarettes to cancer emerged in the 1950s, plaintiffs began suing cigarette manufacturers. Plaintiffs in these early cases -- usually smokers with lung cancer -- typically employed several legal theories in their lawsuits:

Tobacco manufacturers responded in full force, fighting each lawsuit and refusing to settle out of court. They relied on several defense strategies, arguing that:

The tobacco companies prevailed in all of these early lawsuits.(To learn more about product liability, negligence, and fraud, see Nolo's articles Toxic Torts: Legal Theories of Liability and Defective Product Claims: Theories of Liability.)

Second Wave of Tobacco Litigation: Addiction Introduced

In the 1980s, a new wave of lawsuits emerged. In the landmark case of that time, Cipollone v. Liggett, the plaintiff and her family alleged that cigarette manufacturers knew -- but did not warn consumers -- that smoking caused lung cancer and that cigarettes were addictive. Although Rose Cipollone's husband was awarded $400,000, an appellate court reversed the decision. Other plaintiffs also sued, claiming that tobacco companies knew cigarettes were addictive and caused cancer.

In defending these lawsuits, the tobacco companies argued that smokers had knowingly assumed the risks of cancer and other health problems when they began smoking. The companies also argued that various state laws were preempted by federal laws. That is, that federal laws governing tobacco advertising superseded state laws regarding the same thing, and plaintiff's couldn't sue under the state law. For the most part, the tobacco industry was successful in these lawsuits.

Third Wave: Plaintiff Successes & Lawsuits by the States

In the 1990s, plaintiffs began to have limited success in tobacco lawsuits, partly because some cigarette company documents were leaked showing the companies were aware of the addictive nature of tobacco. The first big win for plaintiffs in a tobacco lawsuit occurred in February 2000, when a California juryordered Philip Morris to pay $51.5 million to a California smoker with inoperable lung cancer.

Around this time, more than forty states sued the tobacco companies under state consumer protection and antitrust laws. These states argued that cigarettes contributed to health problems that triggered significant costs for public health systems. In these lawsuits, the tobacco companies could not use the defense that had proven so successful in lawsuits brought by individuals -- that the smoker was aware of the risks and decided to smoke anyway.

In November 1998, the attorneys general of 46 states and four of the largest tobacco companies agreed to settle the state cases. Terms of the settlement are referred to as the Master Settlement Agreement. Highlights include:

Recent Developments in Tobacco Litigation

In recent years, several key court decisions have paved the way for a raft of individual lawsuits against tobacco companies and have opened the door for class action lawsuits that focus on light cigarettes.

Individual Lawsuits in Florida

In 2006, the Florida Supreme Court threw out a class action lawsuit brought on behalf of 700,000 smokers and their families against tobacco companies. In its ruling, the court found that tobacco companies knowingly sold dangerous products and kept smoking health risks concealed, but that the case could not proceed as a class action. Instead, the court ruled that each case must be proven individually.

This ruling paved the way for over 8,000 smokers and their families to bring individual lawsuits against the tobacco companies. In these lawsuits, plaintiffs need only prove that the individual plaintiff was harmed by an addiction to cigarettes. In the first of these cases to go to trial, the jury found that the death of a long-time smoker, Stuart Hess, was caused by his addiction to cigarettes.

Light Cigarettes

The newest batch of tobacco lawsuits focus on light cigarettes. Light cigarettes have special filters designed to dilute the smoke inhaled by smokers. Plaintiffs in these cases allege that tobacco companies advertise light cigarettes as being healthier than regular cigarettes, when in fact they are no safer than non-light cigarettes.

Tobacco companies respond that "light" refers to the taste of the cigarettes, not the amount of nicotine ingested, and that consumers should understand what "light" means. They have also raised federal preemption as a defense against state class action lawsuits, arguing that federal legislation regarding cigarette advertising supersedes state laws that prohibit deceptive advertising practices.

In December 2008, the U.S. Supreme Court threw out the tobacco companies' preemption arguments in a class action light cigarette lawsuit brought in Maine. In allowing the Maine case to proceed, the Supreme Court ruled that federal legislation does not preempt plaintiffs from suing under certain state unfair business practice laws. This will open the door for similar lawsuits against tobacco companies. The Supreme Court, however, didn't rule on any of the underlying claims -- plaintiffs will still have to prove that the cigarette companies violated Maine's consumer protection laws. (To learn more about the legal theories underlying light cigarette litigation, see Nolo's article Tobacco Litigation: Claims Involving Light Cigarettes.)

nolo

by: Kathleen Michon, J.D.

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https://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement

History of adoption

Private lawsuits before the settlement

In September 1950, an article was published in the British Medical Journal linking smoking to lung cancer and heart disease.[2] In 1954 the British Doctors Study confirmed the suggestion, based on which the government issued advice that smoking and lung cancer rates were related.[3] In 1964 the United States Surgeon General's Report on Smoking and Health likewise began suggesting the relationship between smoking and cancer.

By the mid-1950s, individuals in the United States began to sue the companies responsible for manufacturing and marketing cigarettes for damages related to the effects of smoking. In the forty years through 1994, over 800 private claims were brought against tobacco companies in state courts across the country.[4] The individuals asserted claims for negligent manufacture, negligent advertising, fraud, and violation of various state consumer protection statutes. The tobacco companies enjoyed great success in these lawsuits. Only two plaintiffs ever prevailed, and both of those decisions were reversed on appeal.[5] As scientific evidence mounted in the 1980s, tobacco companies claimed contributory negligence as the adverse health effects were previously unknown or lacked substantial credibility.

State litigation

In the mid 1990s, more than 40 states commenced litigation against the tobacco industry, seeking monetary, equitable, and injunctive relief under various consumer-protection and antitrust laws.[6] The first was declared in May 1994 by Mississippi Attorney General Mike Moore.

The general theory of these lawsuits was that the cigarettes produced by the tobacco industry contributed to health problems among the population, which in turn resulted in significant costs to the states' public health systems. As Moore declared, "'[The] lawsuit is premised on a simple notion: you caused the health crisis; you pay for it.'"[7] The states alleged a wide range of deceptive and fraudulent practices by the tobacco companies over decades of sales.[8] Other states soon followed. The state lawsuits sought recovery for Medicaid and other public health expenses incurred in the treatment of smoking-induced illnesses. Importantly, the defenses of personal responsibility that were so effective for the tobacco industry in suits by private individuals were inapplicable to the causes of action alleged by the states.

Proposed "Global Settlement Agreement"

Faced with the prospect of defending multiple actions nationwide, the Majors sought a congressional remedy, primarily in the form of a national legislative settlement.[9] In June 1997, the National Association of Attorneys General and the Majors jointly petitioned Congress for a global resolution. On June 20, 1997, Mississippi Attorney General Michael Moore and a group of other attorneys general announced the details of the settlement. The settlement included a payment by the companies of $365.5 billion, agreement to possible Food and Drug Administration regulation under certain circumstances, and stronger warning labels and restrictions on advertising. In exchange the companies would be freed from class-action suits and litigation costs would be capped.[10]:422

This proposed congressional remedy (1997 National Settlement Proposal (NSP), a.k.a. the "June 20, 1997 Proposal") for the cigarette tobacco problem resembled the eventual Multistate Settlement Agreement (MSA), but with important differences.

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https://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement

Summary of terms

The Original Participating Manufacturers (OPMs) agreed to several broad categories of conditions:

A section on enforcement gave jurisdiction to individual state courts to implement and enforce the term, and established a state enforcement fund ($50 million one-time payment). The participating manufacturers also paid the states' Attorney Fees.

Restrictions on youth targeting:

Generally, the participating manufacturers agree not to "take any action, directly or indirectly, to target Youth within any Settling State in the advertising, promotion or marketing of Tobacco Products, or take any action the primary purpose of which is to initiate, maintain or increase the incidence of Youth smoking within any Settling State." (§III(a))

The restrictions specified included bans on outdoor billboards, advertising on transit vehicles, as well as restrictions on sports marketing, event sponsorships and promotional products.

States were to receive over $206 billion over 25 years:

Payments by the Participating Manufacturers (PMs)

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