With just one business day left before the DOJ's opportunity to appeal the D.C. Court of Appeals decision that disallows disgorgement and other backwards-looking remedies in the government's RICO lawsuit against the tobacco companies disappears, the American Lung Association has today on its website an action alert and letter that focuses solely on the Justice Department's reduction of the requested smoking cessation program from $130 billion to $10 billion, and fails to ask constituents to urge DOJ to appeal the court decision that disallows that very remedy in the first place.
The alert states: "Initially, a remedy sought by the Department of Justice was a $5 billion-per-year comprehensive tobacco cessation effort over the next 25 years to help every smoker who wants to quit. However, the trial ended with a surprise request from the Justice Department that the tobacco companies only fund a $2 billion per year, five-year smoking cessation program. The American Lung Association and many other health organizations are outraged at the unexpected weakening change in approach. Media accounts suggest that this change may be the result of tobacco industry influence on senior Justice Department officials."
And the letter states: "I am writing to voice my opposition to the weakening changes in remedies proposed during the closing days of the RICO lawsuit against the tobacco industry. Cutting the remedy to $2 billion per year for a five-year nationwide stop-smoking program is woefully inadequate. The Department of Justice's own expert witness testified that more than $5 billion per year was needed over the next 25 years to help the 45 million already-addicted smokers quit. ... The Justice Department has put forth a strong case against the tobacco industry and should use this opportunity to hold the industry accountable for its wrongful behavior and reduce tobacco's terrible toll. I urge you to insist on the strong remedies recommended by your own expert witnesses, including fundamental reform of the industry's harmful marketing practices; the establishment of well-funded, sustained, nationwide programs to prevent kids from smoking and help smokers quit; and financial penalties against the tobacco companies should they continue to addict our children."
The Rest of the Story
Is the American Lung Association not aware that the law governing the DOJ case simply does not allow most of the remedies that it urges its constituents to demand and that the only way to allow such remedies would be for the Supreme Court to overturn the appellate court's decision? A more effective action alert, in my opinion, would alert constituents to the fact that the D.C. Court of Appeals decision effectively does not allow any monetary remedies and that the only way for that to change is for those constituents to convince the Administration and the Justice Department, in the next 3 days, to appeal to the Supreme Court.
Smoke-Free Pennsylvania and the Tobacco Products Liability Project have done just that and should be applauded for having enough legal insight and good judgment to be able to see that an appeal to the Supreme Court is the only effective way to correct the perceived problem. Complaining about the money and the political interference may feel good, but it isn't going to do anything to achieve a $130 billion smoking cessation program, because such a program is simply not allowable under the current law governing the case.
It's difficult for me to think of a rationale behind the Lung Association's seeming obsession with the money, rather than with the important strategic and legal issue in the case, which right now is the potential appeal to the Supreme Court. The only thing that seems plausible to me is that there is an obsession with the money and that is why many of the anti-smoking groups are whining and complaining about the loss of $120 billion, but paying little or no heed to the legal facts of the case, which are that even a $1 dollar smoking cessation program for current smokers is not a permissible remedy under the RICO statute, given the way that the D.C. Court of Appeals has interpreted the statute.
Do I think that an appeal to the Supreme Court will actually make a difference? In the long run, no. That is because the RICO statute seems pretty clearly written to me and I don't see much ambiguity in its civil remedies provision, which makes it clear that remedies must be designed to prevent and restrain future RICO violations. I also think it is unlikely to make a difference because if there are enough votes on the Court to overturn the appellate court decision, the 5th majority vote will most likely have to come from whoever is the replacement for Sandra Day O'Connor, and I see that being someone who likely will see this issue in the same way that the D.C. Court of Appeals has.
Nevertheless, anything can happen and I could well be wrong. The vote in the appellate court decision was 2-1 and the vote not to accept the case for a decision by the entire appellate court was 3-3. At very least, appealing the case to the Supreme Court would buy time for the Department (since Judge Kessler would most certainly wait until after the Court's decision to issue her own decision).
If I was rating the anti-smoking organizations like the American Lung Association likes to rate the states, I would have to give ALA an F for strategic thinking and an NP (not present) for legal savvy.