While I have already commented on the Citizens' Commission to Protect the Truth's failure to be forthright in disclosing its conflict of interest (specifically, being affiliated with and funded by the American Legacy Foundation) in its filing of its recent amicus brief in the legal dispute between Lorillard and the American Legacy Foundation over whether the "truth" campaign violated the anti-vilification clause of the Master Settlement Agreement, I think the merits of the actual legal argument in the brief are also worthy of comment.
The background to the brief is as follows: Lorillard (maker of Newport, among other cigarette brands), has threatened to sue the American Legacy Foundation for violating the terms of the Master Settlement Agreement through its "truth" anti-smoking campaign. Specifically, Lorillard contends that the "truth" campaign ads violate the anti-vilification clause of the settlement agreement (section VI[h]), which states that: "The National Public Education Fund shall be used only for public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively."
The American Legacy Foundation has apparently filed a motion in the Court of Chancery of the State of Delaware to attempt to restrain Lorillard from filing suit on the above basis. The basic argument advanced by the Commission in the amicus brief, which supports the Foundation's motion, is that: "If Lorillard, and tobacco companies generally, are permitted to threaten and bring suit against the American Legacy Foundation every time it feels that a truth(R) campaign advertisement will impact its sales, the adverse effect on the public health will be vast. ... Rather than placing its resources and energy into generating powerful, effective anti-smoking advertisements, the American Legacy Foundation would be forced to appease the tobacco companies under the threat of litigation."
Importantly, the brief also states that: "Merely entertaining this suit, and others of its type, will impact Legacy's truth(R) campaign. Putting aside the possibility of a declaration that the truth(R) campaign violates the anti-vilification provision of the MSA, the mere threat of such lawsuits will carry, practically speaking, the same effect." And it concludes by stating: "The only way for this Court to preserve the effectiveness of Legacy's truth(R) campaign, and thereby allow the nation's most successful smoking prevention campaign to continue its efforts, is to declare and decree that Lorillard cannot bring suit against Legacy pursuant to the MSA."
The Rest of the Story
As much as I deplore Lorillard and dislike its attempt to invoke the anti-vilification clause of the MSA, the key legal issue in question is not whether Lorillard is a terrible company or not or whether allowing it to sue Legacy will ultimately harm the public's health, but whether it is reasonable and legally sound under the Master Settlement Agreement and the laws of the United States to allow such a lawsuit.
While the Commission is at least somewhat accurate in defending the importance of the "truth" campaign (see more on this below) and in noting that allowing Lorillard and other companies to sue Legacy based on the anti-vilification clause might weaken or even devastate the campaign, that is unfortunately not the central legal question here. The main question is whether a lawsuit is allowable and reasonable under the law, which includes the contract under which the two parties are acting.
In order to convince a judge not to allow this lawsuit, I think that the Commission would have to show that either: (1) there is no legal basis for Lorillard to sue Legacy on the alleged anti-vilification clause violation under the MSA; or (2) that although a lawsuit is allowable, this suit is so frivolous or unreasonable that allowing it would undermine the operation of the Foundation for little meaningful reason.
The amicus brief does not attempt to make any argument to support the first point, although it certainly asks the judge to make such a declaration in requesting a decree that "Lorillard cannot bring suit against Legacy pursuant to the MSA." The brief does argue that allowing a lawsuit would undermine the operation of the Foundation, but it provides no analysis or evidence to support the contention that such a lawsuit would be frivolous or unreasonable in any way, other than to simply state that it would cause problems for Legacy. But that alone does not seem enough to restrain Lorillard from filing suit under the MSA if its legal contention is at least reasonable (note that it does not have to be correct, just reasonable).
It seems clear that Lorillard does have a basis to assert claims against Legacy pursuant to the MSA (the Attorneys General have certainly been given the ability to assert claims against the tobacco companies under the MSA; it seems that the contract would work both ways). So the question is whether Lorillard's invokation of the anti-vilification clause is unreasonable. Is, as the Commission claims, Lorillard simply trying "to intimidate Legacy under the guise of anti-vilification provisions."
Here, a careful reading of the anti-vilification provision is critical. The clause states that the Foundation's ads must not make "any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively." To vilify is defined as either "to lower in estimation or importance" or "to utter slanderous and abusive statements against."
While I personally would not interpret the anti-vilification clause in such a way that it would lead to a conclusion that some of the "truth" campaign ads have violated the provision, I do have to admit that it does not seem unreasonable to argue that some of the ads do attempt to lower the public's estimation of the tobacco companies. So I think the significant legal question for a court to determine is whether the definition of "vilify" would fall under the first (more general) or second (more specific) definition above. Under the first definition, it may not be unreasonable to interpret the MSA in such a way that the "truth" campaign ads represent a violation of the clause. Under the second definition, the "truth" campaign is home-free.
The problem is that it is not up to me to decide how to interpret the MSA. The relevant question is really whether there is a legitimate potential legal argument that the ads could violate the MSA, such that a court's hearing of the issue becomes essential for the tobacco company's interest in pursuing legal enforcement of the binding contract that both parties are subject to. And I think because there is at least the possibility of a more general interpretation of the anti-vilification clause, a lawsuit on this basis is not frivolous, but is within the realm of reason.
I therefore am not persuaded by the Commission's legal brief. If anything, I think that it is in the best interests of the public's health in the long run to defend the legal system and the opportunity for parties to pursue justice under the laws of our nation. To cut off or restrain the legal ability of the tobacco companies to seek justice under a contract that is legally binding, just because the companies are very bad and we are very good, does not advance the overall interests of public health in the long run. And, frankly, I think it may violate legitimate legal rights of the tobacco companies. Yes, I do think that all entities in our society do have certain legal rights that cannot be stripped away simply on the basis of their being faulty in intention or action.
What is really needed in this case is not a blanket request to the judge to interfere with Lorillard's apparent legal rights, but rather a compelling argument why the judge should rule that Legacy has not violated the anti-vilification clause. It seems to me that it is going to basically come down to which of the two basic definitions the judge adopts and evidence that it is indeed the second definition that is more appropriate in this situation, based on the context in which the MSA was negotiated and signed, would be truly valuable in helping Legacy to preserve the integrity of the "truth" campaign.
One additional statement in the brief deserves comment. The Commission wrote that: "It is beyond dispute that the truth(R) campaign's advertising is cutting-edge, and has caused a significant decrease in youth smoking." While there is no doubt that the "truth" campaign is cutting-edge, I certainly do not think that it is beyond dispute that the campaign has significantly decreased youth smoking. Dr. Joel Moskowitz has published an important comment noting that the paper cited in the amicus brief to support the above statement had several limitations that may interfere with the ability to conclude that the campaign had a significant effect. And I have myself argued that the evidence presented in the AJPH paper does not support the conclusion that the "truth" campaign led to a significant reduction in youth smoking. Whether Moskowitz and I are correct or not, it does not seem accurate under the circumstances to claim that the campaign effects on youth smoking are "beyond dispute." They are in fact being disputed, and by reputable sources (well, at least one).
Finally, let me be clear that I am not criticizing the Citizens' Commission for advancing its argument. It has a legitimate interest in doing so, and there's nothing wrong in it pursuing this approach. It's at least slightly possible that the approach may work. My argument here is not that the amicus brief is inappropriate (other than the failure to be forthright about the Commission's affiliation with Legacy). My argument is that the brief is not particularly relevant or valid.
The real blame here lies with the Attorneys General who signed such a shoddy agreement in the first place as well as with the public health organizations that failed to unequivocally oppose the signing of the settlement. Unfortunately, if you sign a really bad contract you have to live with your mistakes. The Attorneys General, in signing an agreement with the anti-vilification clause present, presumably knew full well what they were getting themselves into. It shouldn't come as any surprise that the tobacco companies wanted that clause in there so that they could attempt to prevent exactly the kind of hard-hitting ads that Legacy is producing.
That "rather than placing its resources and energy into generating powerful, effective anti-smoking advertisements," the American Legacy Foundation is now "forced to appease the tobacco companies under the threat of litigation" is not a violation of legal principles in this country. Instead, it is simply the result of a really bad contract that should never have been signed in the first place. Unfortunately, it is the anti-vilification provision itself that is the problem here, not simply the fact that the tobacco companies have bad intentions.
The companies were successful in extracting such an advantageous provision in the contract. They certainly have the right to now take advantage of that provision, and I don't blame them for doing so. Legacy and the Commission can complain all they want about how evil Lorillard may be, but it is the Attorneys General who signed the contract knowing full well about the anti-vilification clause who are to blame for this mess.
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