Next critical date in the tobacco wars
on Jun 12, 2005 at 10:52 pm
Friday, July 8, is the next critical date to test the Bush Administration’s continued willingness to press for tough judicial action against the tobacco industry for allegedly deceiving the public for four decades about the health hazards of smoking. The Justice Department’s resolve has appeared to be weakening in recent days, and one result of that has been to raise a new question whether it will go on to the Supreme Court to try to recover its strongest potential remedy.
It lost that remedy in a 2-1 decision by the D.C. Circuit last February, and the only way to hope to revive it would be to ask the Supreme Court to do so. The remedy, in brief, would be to force the industry to “disgorge” $280 billion of allegedly ill-gotten gains for an unlawful plot of deception. The D.C. Circuit ruled that the federal anti-racketeering law (RICO), on which the government’s case is built, only allows for “forward-looking” remedies” aimed at future violations. Disgorgement of past profits, the Circuit Court said, are not allowed.
The D.C. Circuit refused on April 19 to rehear that decision. That refusal started the deadline clock running for a petition to the Supreme Court. Such a petition, under the Court’s Rule 13, would be due at the Court in 90 days — that is, on Monday, July 18. But the Justice Department would be free to ask for more time to file its petition. Such a request, however, would have to be filed no later than Friday, July 8, or else would be refused, according to separate Rule 30. Thus, July 8 is the first date to watch.
Justice Department officials have said repeatedly that they disagree with the D.C. Circuit’s ruling on the RICO remedies question; they did so again last week. Thus, it had long been assumed that they would take the question on to the Supreme Court.
But, over the past week, the Department has taken two positions in the continuing proceedings in U.S. District Court in Washington that at least implied it was cutting back its demands. First, its lawyers said in court that they were asking for $10 billion — down from an earlier projected $130 billion sum — in funds the industry would have to spend on a public education campaign to stop smoking. Then, its attorneys indicated that they would no longer ask for a program to help 45 million Americans who currently smoke to quit. Instead, the cessation remedy would be aimed only at those who started smoking in the first year that any remedy program was in effect.
In both instances, officials defended the apparent switches as positions they felt were dictated by the Circuit Court’s February ruling. “This is not politics,” one unnamed Justice Department official told the New York Times. “This is trying to stay within the law and trying to stay within a decision with which we disagreed.” A Justice Department spokesman, in a public statement, interpreted the Circuit Court ruling as barring a remedy that addressed “even lingering consequences of past wrongful acts.”
It is clear, then, that the Department in public is making a case that its cutbacks are traceable only to the Circuit Court decision, not to an internal decision to go easier on the industry.
Thus, if the Administration would still prefer stronger remedies, its only option — according to the import of its own statements — would be to go to the Supreme Court. A decision to do so would send the signal that this remains its goal.
Meanwhile, the remedies phase proceeds in U.S. District Court, before Judge Gladys Kessler — without the disgorgement proposal, of course. Last week, she ordered the government to file “a detailed proposed remedies order” by June 25 — 12 days from now. Under other orders, both sides are to file proposed findings of fact by August 8, and post-trial legal briefs beginning on August 24 and continuing through September 29.
