Wednesday, August 03, 2005

APHA Issues Statement Showing Lack of Understanding of Legal Issues in DOJ Tobacco Case

The American Public Health Association (APHA), in its August newsletter (The Nation's Health), weighed in on the DOJ tobacco case. Specifically, APHA criticized the Justice Department's decision to ask for just a $10 billion smoking cessation remedy instead of the $130 billion remedy originally proposed.

According to the newsletter, APHA Executive Director Georges Benjamin, MD, called the penalty request an "unconscionable" move that "places the financial interests of the industry above fighting this nation's leading cause of death."

Benjamin stated that: "The government's decision is bad policy, bad economics and downright short-sighted." He added that the revised remedy "is a betrayal of the nation's 45 million smokers, because most of them will not get the help they need in breaking their deadly addiction."

The APHA newsletter also attacks Associate Attorney General Robert McCallum for politically interfering in the case, calling him a "former tobacco industry lawyer."

The Rest of the Story

It is troubling to me that APHA, the nation's leading public health advocacy organization, appears to have such a shallow (actually, incorrect) understanding of the legal issues involved in the DOJ tobacco lawsuit that it is almost embarrassing to read its analysis of the case and its statement about what is involved.

"The government's decision is bad policy": I didn't know that this was a policy issue. I thought it was a lawsuit.

"bad economics": I didn't know this was an economic issue. I thought it was a lawsuit.

"and downright short-sighted": I didn't know that the plaintiff in the case is supposed to look beyond the facts of the case and the law that governs it.

The APHA statement that the new "plan" is a betrayal of the nation's smokers suggests that the organization, like the Campaign for Tobacco-Free Kids, appears to view this as a free-for-all tobacco policy and program opportunity, in which anti-smoking groups can ask for all the pet programs that they desire without any regard for what remedies are actually allowed by the law under which the suit was filed and the law that governs the case.

And asking for anything less than what these organizations apparently would like to see represents a betrayal of the public's interests and catering to the tobacco industry, rather than an attempt to follow the confines of the law.

This is not a policy forum. It is not a discussion to try to come up with the best programs to help the nation's smokers. There is no betrayal of smokers, as there was no obligation to them to begin with.

APHA doesn't seem to understand that this is a lawsuit, and the Department of Justice actually has to follow the law under which the case is being heard (i.e., the RICO statute) as well as the law that governs the case (i.e., the D.C. Court of Appeals ruling regarding permissible remedies).

The only remedies that are appropriate are those designed to do one and only one thing: to prevent and restrain the tobacco companies from further RICO violations. Any other remedy, even if it might be effective as a public health policy, is not appropriate and proposing it does not advance any public health cause nor deny the tobacco companies of anything.

While its apparent misunderstanding of the legal issues in the case is troubling but excusable based on perhaps simple ignorance of the legal framework involved, the misleading attack this public health advocacy group makes on an individual - Robert McCallum - is not excusable.

To call him a former tobacco industry lawyer is, in my mind, blatantly misleading to the public because he is not a former industry lawyer - he is, instead, a former partner in a law firm that represented a tobacco company. Calling him a former tobacco industry lawyer, in my opinion, implies that he has previously represented a tobacco company and this appears not to be the case.

Perhaps one could also excuse this misleading political smear attempt based on simple ignorance of the truth - but since it represents a public attack on an individual that could potentially lead to irreparable harm to him and his reputation, I don't buy that as a defense. I think if you are going to make a public attack on an individual, you need to be at least somewhat diligent in fact-checking and making sure that your claims are accurate.

Even a little bit of internet searching by APHA would have uncovered that McCallum never represented the tobacco companies in his life, and that instead, he merely happened to be a partner at a law firm that did patent work for R.J. Reynolds. They could have quite easily found that the claim that he is "a former tobacco industry lawyer" is misleading and without adequate foundation.

Unless, of course, they did their fact checking on the ANR (Americans for Nonsmokers' Rights) web site, where they would have themselves been misled into thinking that McCallum previously represented tobacco clients.

The rest of the story suggests that APHA - the nation's leading public health advocacy group - has a shallow (at best) understanding of the legal issues involved in the DOJ case and is making statements that completely disregard the fact that this is a lawsuit that must follow the dictates of law and the confines of the way that law has been interpreted by the courts.

The public health and tobacco control causes are good ones - but that doesn't mean that we are above the law.

3 comments:

Mrs. Non-Gorilla said...

mike -- arguing APHA's side on this, i think there are some key issues you should consider.

"The government's decision is bad policy": I didn't know that this was a policy issue. I thought it was a lawsuit.

lawsuits, particularly when brought by the government, are policy issues. our system is such that as much policy is made through litigation as is through regulation; this may be because as a society we seem to be averse to big government regulation, although it's just as likely to simply be a byproduct of the common law system.

"bad economics": I didn't know this was an economic issue. I thought it was a lawsuit.

lawsuits are economic issues. see pretty much any decision by posner. [there are many theories of tort law (including the compensation/deterrence/corrective justice triad; this article does a good job of going through them.]]

"and downright short-sighted": I didn't know that the plaintiff in the case is supposed to look beyond the facts of the case and the law that governs it.

laws don't exist for their own sake (unless you're a formalist); they exist to serve a broader social purpose. it's often easy to see this in legislation, where the recitals of the preamble set out the purpose (sometimes clearly, sometimes not). in judge-made law, it's often identified as serving a "public policy" purpose. (in addition, if court decisions weren't supposed to look beyond the narrow facts of the particular case, there would be no use for precedent.)

furthermore, it is the responsibility of the plaintiff's counsel (in this case, the DOJ) to make the strongest case possible for its client (in this case, "the people"). "the facts" are what the finder of fact determines them to be, not what the plaintiff or defendant claims they are; "the law that governs it" is not limited to the RICO statute itself, but extends to previously decided cases (precedent) and any other legal theories the attorneys can dream up and the court will accept.

This is not a policy forum. It is not a discussion to try to come up with the best programs to help the nation's smokers. There is no betrayal of smokers, as there was no obligation to them to begin with.

but a courtroom is exactly a public policy forum. what is RICO if not an articulation of the belief that consipracy to commit fraud is against the public interest? and there is arguably betrayal of smokers, insofar as an argument can be made that smokers are the plaintiffs and the DOJ isn't acting in their best interests.

...anti-smoking groups can ask for all the pet programs that they desire without any regard for what remedies are actually allowed by the law under which the suit was filed and the law that governs the case.

it's worth looking at the relevant text of the RICO statute, §1964(a): “The district courts of the United States shall have the jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.”

"including, but not limited to" is key language; the DC court of appeals decision, btw, is limited to the question of disgorgement. it was not asked to decide a question of the appropriateness of other remedies such as a smoking cessation program; in fact, the concurring opinion of judge williams reads in part, "The equity court, empowered under § 1964(a) to “prevent
and restrain” future violations, has before it the history of the defendant, including his past wrongs. It can decree relief targeted to his plausible future behavior. It can define the conditions bearing directly on that behavior. It can, for example, establish schedules of draconian contempt penalties for future violations, and impose transparency requirements so that future violations will be quickly and easily identified." until a court decides that tobacco control programs would not restrain or prevent future violations, it is perfectly appropriate for the DOJ to request such remedies, especially if there is a coherent argument for their applicability.

finally, re: disgorgement, the US court of appeals decision isn't the final word. the industry has until 16 september to file an opposition to SCOTUS review; then SCOTUS must decide whether or not to review the decision. at the moment, disgorgement is still in play.

to sum up, i don't think that APHA misunderstands the legal issues of the case, they simply have a different philosophy of law than you.

oh, one other thing -- could you put up a pdf of the TNH article you reference? my APHA membership has lapsed and the website only publishes front-page articles. :-)

Michael Siegel said...

Jenny-
Thanks, as always, for your thoughtful comments.

You may well be right - it is certainly possible that APHA has carefully analyzed the legal issues and simply come to a different interpretation of the appellate court decision than I have.

It's not really a difference in philosophy of law, it's specifically a difference in the interpretation of the appellate court decision (one can have any philosopy of law that one wants but at the end of the day, if the proposed remedies are viewed as not being consistent with the appeals court decision then they are not going to stand).

With that said, I do have to say that I find that interpretation of the appeals court decision to be quite a stretch. It appears quite clear from the decision that backwards-looking remedies are not allowable. I think even Judge Kessler seemed to express frustration that the DOJ seemed to be ignoring the appeals court decision.

Bill Godshall said...

Instead of advocating tobacco policies that were actually approved by its membership, it appears that APHA executives simply impose as APHA tobacco policy whateve is supported or opposed by Matt Myers and the Campaign for Tobacco Free Kids.

A key reason I haven't renewed my APHA membership was because in 1998 then APHA executive director Mohammed Akhtar (sp) publicly advocated (as APHA policy) the enactment of federal legislation that would have granted lawsuit protection to cigarette companies even though it blatantly violated the APHA membership approved policy that opposed any legislation that would protect cigarette companies from lawsuits.

And although APHA members also approved an APHA resolution to support unfettered FDA tobacco regulatory legislation, during the past year the current APHA executive has publicly endorsed (as APHA policy) Philip Morris supported FDA tobacco regulatory legislation that is far from unfettered.