Anti-smoking groups are now mobilizing to try to save what they perceive as a DOJ tobacco case that fell apart in the past two weeks. But I would argue that the case fell apart long before that (at least if you define "fall apart" by the absence of a possibility of extracting huge monetary penalties from the industry).
My sense is that from the beginning, the case was really about the money. What I guess prompted the lawsuit in the first place was not some conviction that the tobacco companies needed to be brought to justice, but that there was a possibility of the government recovering huge amounts of money. The Clinton Administration observed how the states were successful in extracting huge amounts of money from the tobacco companies based on a claim that the companies were responsible for Medicaid-related expenditures for smoking-related illnesses (those claims were never tested in court, but were apparently worrisome enough to motivate the companies to settle). I think it was seeing the possibility of recovering huge sums of money that probably prompted the suit in the first place.
Let's not forget that the primary legal claim that was made in the lawsuit initially was that the tobacco industry was responsible for billions of dollars that the federal government had spent on Medicaid expenditures to treat diseases caused by smoking. When Judge Kessler dismissed those claims and only the RICO claim remained, the government cleverly argued that disgorgement of past profits was an appropriate RICO remedy. And then when the D.C. Court of Appeals ruled that disgorgement was not allowable as a remedy, DOJ proposed two other remedies that involved large amounts of money: requiring tobacco companies to fund an independent anti-smoking media campaign and requiring the companies to fund a national smoking cessation program for current smokers.
Those two proposed remedies - the anti-smoking media campaign and the smoking cessation program - are clearly not consistent with the RICO statute, in that they are designed primarily to redress past industry wrongs, not to prevent and restrain future RICO violations. Thus, the decrease in the amount requested for the smoking cessation remedy (from $130 billion to $10 billion) does not change the legal strength of the case at all.
But what the law means here is that there is no available remedy by which the government can extract substantial amounts of money from the tobacco industry. And in the eyes of the anti-smoking community, that apparently represents a travesty.
I have to admit that I'm troubled by this response - because in my eyes, a travesty would be if the government were not able to hold the companies accountable to the greatest extent allowed under the law. But if the law simply doesn't provide any basis to extract a huge pot of money, then failing to recieve that money isn't a travesty, it's the law.
To me, the shame of the whole case is that not enough thought went into the devising of legal remedies to directly prevent and restrain future RICO violations. Once the D.C. Court of Appeals decision was handed down, this should have been the focus of the case. Since the primary racketeering violations relate to marketing activities, it seems that the appropriate remedies would relate to direct restrictions on company marketing. These would, of course, have to be consistent with the First Amendment, but that's where the focus of the case needs to be.
In fact, I argued on April 20 (long before the case was "destroyed") that: "It is my opinion that the Department of Justice should focus the remedies portion of its case on the following two remedies that I think are both consistent with section 1964(a) (and likely to withstand appeal) and likely to have substantial public health benefits in terms of reducing tobacco use and improving health: requiring substantial changes in cigarette advertising and marketing, including measures to prevent the marketing of cigarettes to youths and to prevent certain deceptive aspects of the marketing, such as the potential health value of "light" and "low-tar" cigarettes; and requiring substantial changes in cigarette labeling and packaging, including larger, stronger, and more graphic warning labels. In fact, I think that barring an unexpected Supreme Court reversal of the Appeals Court's disgorgement ruling, the potential value of the DOJ case now rests upon how successful it is in bringing about substantial, meaningful changes in tobacco product advertising, marketing, labeling, and packaging, which could directly prevent the tobacco companies from engaging in most of the alleged RICO violations in the future."
I believed at the time that it was really the non-monetary remedies that were going to define the success of the case, since I felt that the monetary remedies were not consistent with the law. But so much focus was given to the monetary remedies that the case is now being viewed as a complete disaster, even though the non-monetary remedies could still be alive and well.
But apparently, that is not enough. Without the money, it does not appear that anti-smoking groups can possibly be satisfied. And the government most likely feels that the case is not worth continuing without a chance for the money; thus, a settlement is likely.
What happened to the basic principle of justice? What happened to the principle of demonstrating, in a court of law, that the tobacco industry's behavior was in violation of the law, and why is it not of value to achieve justice by obtaining such a court decision and imposing remedies that could directly restrain future violations?
I'll tell you what happened to that principle of justice? Nothing! It was never there in the first place. It was, and will remain: all about the money.