In a September 12 amicus brief submitted by the attorneys general of 22 states, these states have asked the D.C. Court hearing the DOJ's tobacco lawsuit to direct the tobacco companies to pay for the continued funding of the American Legacy Foundation's "truth" campaign to combat youth smoking, should the Court find the companies liable for RICO violations.
The AG's preface their argument by stating that: "an effective public education program would be appropriate 'to prevent and restrain violations' of RICO in the future."
They then argue that: "there are other forms of advertising and promotion, not specifically addressed in the MSA, that result in large and continuing exposure of youth to cigarette advertising. A substantial and well-funded public education program like that carried out by the Foundation is needed to counteract the effects of that exposure, particularly in light of the fact that many state legislatures have significantly reduced funding for state smoking-prevention programs."
The AG's also argue that funding to continue Legacy's public education program is necessary because of the "sunset" clause in the MSA, which ends payments for this program if the market share of non-participating manufacturers exceeds 0.95% (which it has).
The Rest of the Story
This amicus brief appears to have no legal merit, at least regarding the public education remedy (the brief also addresses the document disclosure remedy, which I will not discuss here).
The brief has no legal merit because although it prefaces its argument for a public education remedy by stating that such a program would prevent and restrain future RICO violations, it provides no argument for how such a program would do that. Instead, it argues that such a program is necessary because it is needed in order to counteract the effects of continued tobacco marketing to youths. But counteracting the effects of RICO violations is very different than preventing or restraining such violations, and it is something that the D.C. Court of Appeals has precluded from justifying a civil remedy under RICO.
So what does this brief really amount to if it isn't providing any credible legal argument?
What is amounts to is an attempt by the state attorneys general to bail themselves out of a stupid decision that they made in signing the Master Settlement Agreement. They signed a contract in 1998 that clearly intended to abolish the anti-smoking public education and counter-marketing campaign if the market share of non-participating manufacturers reached 1% or greater.
There was nothing hidden in the MSA - it was clearly stated and the AG's were presumably aware of the provision before they signed the contract. They really have no one to blame other than themselves for signing such a bad contract (bad in terms of serving the public's interest). Given the role of generic, discount, and deep discount cigarettes in the overall market, it should have been anticipated that the market share of non-participating manufacturers would soon exceed 1%.
Now, the AG's are basically asking the court to bail them out of this mess by restoring funding for the "truth" campaign. I suppose that would be OK, except that they are asking the court to misapply the law in order to do that.
The AG's are also asking the court to bail out their states for failing to allocate money from the MSA payments for tobacco prevention programs. They actually argue to Judge Kessler that because the states have failed to allocate sufficient funding for such programs, she should require the tobacco companies to fund such programs. Why should the court serve the function of redressing the effects of legislative funding decisions, even if they did represent inappropriate budget allocation priorities?
This case is certainly not about redressing the actions of legislators in making funding decisions; nor is it about redressing the mistake that the AG's made in signing a contract that essentially guaranteed that funding for the Legacy Foundation's public education campaign would come to an end in the not-so-distant future.
Given the D.C. Court of Appeals' decision, this case is not even about redressing the specific effects of tobacco company RICO violations. The remedies aspect of the case is specifically about asking the court to impose injunctive relief that will effectively prevent and restrain future RICO violations.
The rest of the story suggests that the 22 intervening states, in arguing for continued funding for Legacy's "truth" campaign, are simply trying to bail themselves and their states out of a mess that they themselves created. And they are misusing the law in order to do so.