The Rest of the Story
Since the $130 billion backwards-looking smoking cessation remedy is the only requested remedy that the government has backed away from, the Campaign's statement is basically focusing on restoring the $130 billion request as the key to the case right now. I think this is a huge mistake for several reasons.
First, it is a waste of time and it is irrelevant to the case at the current time. The appellate court has made it clear that a backwards-looking remedy intended to remedy past industry wrongs is not allowable under the RICO statute. So even if the government increases its request to $1 trillion, it is not going to strengthen its case. It is inappropriate and from a legal perspective quite silly to be putting so much emphasis on the amount of money being requested for a remedy that is not allowable under the law that is currently governing the case.
Second, it takes the focus off the areas where it should be. There are really only two things that the government can do right now to strengthen its case (and both can be done simultaneously):
- It can appeal the D.C. Court of Appeals decision to the Supreme Court, in the hope that it will be overturned. If it is overturned, then not only the smoking cessation remedy but the disgorgement remedy will then become available. I doubt that the decision will be overturned by this Court, but it is not unreasonable to appeal such a decision.
- It can quit pretending that the appellate court decision does not exist, and it can actually try to fashion some meaningful remedies that are consistent with the decision.