Tobacco Road: DOJ Accuses Interest Group of Holding E-mails July 31, 2006
By Emma Schwartz, Legal Times
The Justice Department has accused a public interest group of holding internal e-mails the agency says came from the computer of a former chief lawyer for its tobacco litigation who now works at the nonprofit organization.
In a brief filed July 22 in a Freedom of Information Act case, the government alleges privileged e-mails disclosed in the course of the litigation “appear to have been printed from the government computer of former department employee Sharon Eubanks.”
The “plaintiff is now on notice that it is in the possession of stolen property,” the government writes.
The allegations heightened tensions between Justice and Citizens for Responsibility and Ethics in Washington, a watchdog group that has sued the department for documents related to the DOJ’s 2005 decision to lower the civil penalties it was seeking against tobacco companies to $10 billion from $130 billion.
CREW first disclosed the e-mails earlier this month, during a deposition of former Associate Attorney General Robert McCallum. The DOJ seeks the return of the documents.
According to the government filing, the first set of e-mails contains drafts of an op-ed by McCallum that was published in USA Today on June 8, 2005. The second is a July 21, 2005, e-mail from Eubanks to Stephen Brody, her former deputy, in which Eubanks details her recommendation to McCallum for the “procedures that should be followed during the Office of Professional Responsibility investigation” stemming from allegations of improper influence in the decision to seek lower penalties.
CREW attorney Anne Weismann says the group received the e-mails legitimately. “It wasn’t Sharon Eubanks and it wasn’t from anyone who has a current or former connection with the Department of Justice,” she says.
Eubanks, who is not involved in the FOIA case, declined to comment, as did the DOJ. Judge Emmet Sullivan has scheduled a motions hearing for Aug. 7.
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Feds Oppose Public Query in Tobacco Case
July 18, 2006
The Justice Department is opposing public questioning of a former department official in a lawsuit stemming from the government's landmark case against the tobacco industry.
The court battle involves former associate attorney general Robert McCallum and a private group alleging that McCallum and others at the Justice Department failed to surrender records related to the lawsuit against the cigarette companies.
A year ago, McCallum became the central figure in the government's decision to lower by more than 90 percent the amount of money it was seeking from cigarette companies.
In December, Citizens for Responsibility and Ethics in Washington sued, alleging the department had failed to surrender records that might explain the reasons for the reduction from $130 billion to $10 billion.
McCallum, who was confirmed as U.S. ambassador to Australia last month, was scheduled to undergo a deposition Tuesday in a case that the ethics group filed against the department.
After U.S. District Judge Emmet Sullivan gave the go-ahead to question McCallum, the department sought an order that his videotaped deposition be done in private and not be publicly released.
On Monday, CREW asked Sullivan to address the issue after a federal magistrate sided with the department.
"Where the conduct of a high level government official is at issue, protective orders to shield that office from potential embarrassment are not appropriate," CREW said in court papers.
The private group said it wants to question McCallum "to answer the legitimate question of what role he played in the government's misconduct" in failing to produce records.
The department cited court cases which state that depositions cannot be used to embarrass or harass a witness. The department argues it would be inappropriate for members of the public to attend McCallum's deposition because pretrial depositions generally are not public components of a civil trial.
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Federal Judge Allows CREW to Take Deposition of Top DOJ Official; Court Finds DOJ Failed to Comply with FOIA Obligations To: National Desk, Legal Reporter
Contact: Naomi Seligman Steiner of Citizens for Responsibility and Ethics in Washington, 202-408-5565
WASHINGTON, June 1, 2006 /U.S. Newswire/ -- Today, U.S. District Court Judge Emmet Sullivan took the rare step of ordering discovery in the case of Citizens for Responsibility and Ethics in Washington (CREW) v. Department of Justice (DOJ) regarding the government's last minute change of position in its tobacco lawsuit.
Last June, CREW submitted a Freedom of Information Act (FOIA) request to DOJ asking for records relating to the proposed penalty in United States v. Philip Morris, Inc. As a penalty for the tobacco industry's violations of racketeering laws, DOJ had initially sought $130 billion, at a rate of $5.2 billion per year over 24 years, to fund a smoking cessation program. Suddenly and without explanation, in June 2005 DOJ drastically dropped the amount to only $10 billion, at a rate of $2 billion per year for five years.
To learn why DOJ changed its position and to discover if there was any wrongdoing involved, CREW filed several FOIA requests with DOJ. Among the information requested, CREW asked for all contacts between Associate Attorney General Robert McCallum and his former law firm Alston & Byrd, a firm that represented tobacco companies. The past spring, President George Bush nominated McCallum to be the United States' ambassador to Australia. McCallum and President Bush were classmates at Yale University.
Given public interest in the case, CREW asked DOJ to process its requests on an expedited basis.
Although DOJ initially agreed to CREW's request for expedition, nearly a year later, CREW has yet to receive a single record. As a result, CREW sued, arguing that DOJ's extraordinary delay in processing the requests constituted bad faith.
In today's order, Judge Sullivan stated that he was "not persuaded" that DOJ had, in fact, handled CREW's request in an expedited manner and that "sufficient question(s)" had been raised as to the propriety of DOJ's conduct in the manner to warrant awarding discovery to CREW. Judge Sullivan ordered CREW to depose not only McCallum, but also the director of the Office of Information and Privacy, Daniel Metcalfe, Steve Brody, a member of the tobacco team, and James Kovakas, the attorney in charge of the Civil Division's FOIA processing.
Melanie Sloan, CREW's executive director, stated, "Hopefully, with these depositions, the American people will begin to learn the truth about why DOJ so drastically reduced the penalty in the tobacco case. It is also gratifying to know that the federal courts will not allow the Administration to avoid complying with its legal obligations under the FOIA."
Head of Gov't Tobacco Trial Team Quits
Nov 30, 2005
By PETE YOST
WASHINGTON - The head of the government trial team in a landmark lawsuit against the tobacco industry pulled out of the litigation Wednesday amid a probe of whether high-level political influence was brought to bear in the case.
Sharon Eubanks, who had aggressively pursued the racketeering case against the tobacco industry, is withdrawing effective Thursday, the government said in a one-sentence filing in U.S. District Court.
Justice Department spokesman Charles Miller said the department couldn't comment on personnel issues under the provisions of the Privacy Act but would be willing to provide information should Eubanks indicate she would provide a waiver. Eubanks did not return a phone call Wednesday night.
Eubanks' withdrawal follows a stunning reversal in June in which the Justice Department disregarded the recommendations of its own witness _ Dr. Michael Fiore _ and reduced the amount it was demanding from the tobacco industry for smoking cessation to $10 billion. Fiore had proposed $130 billion.
After strong criticism from Democrats, the department agreed to investigate whether political appointees inappropriately pressured the trial team to slash the proposed penalty against the companies.
Matthew Myers, president of the Campaign for Tobacco-Free Kids, said he has not gotten a response from the department on his request of nearly a month ago to be included in any settlement discussions between the government and the companies. U.S. District Judge Gladys Kessler has not yet ruled following the trial.
"I am unaware of settlement negotiations," Miller, the department spokesman, said.
Myers praised Eubanks.
"We hope her departure is not the result of efforts by political appointees to undermine her authority or drive her out of the department," said Myers. "Her departure should not serve as an excuse for secret negotiations that lead to a weak settlement."
Attorney General Alberto Gonzales has said the Justice Department's request for $10 billion was made on the merits of the case, independent of political considerations.
Spending $5.2 billion a year on tobacco cessation programs for 25 years would profoundly improve the health of Americans, Fiore said in a recent article in The New England Journal of Medicine, reprising some of his testimony as a government witness at the tobacco trial in May.
It is "such a tragedy that the Justice Department backed away from their original cessation remedy," wrote Fiore. "Can you imagine what would happen if, as we projected with this plan, 1 million additional smokers quit each year _ 33 million over time?"
In August, the Justice Department used Fiore's name 45 times in a post-trial brief to bolster its arguments against the cigarette companies despite having disregarded the amount he had recommended the industry should pay.
"Dr. Fiore is simply the world's foremost expert on the treatment of tobacco dependence and the population-wide delivery of smoking cessation services," the Justice Department said.
"As the court is aware, Dr. Fiore's professional work in the field has spanned almost two decades and involved virtually everything from treatment of individual patients to the design and implementation of population-wide smoking cessation programs," the department added.
The defendants in the lawsuit are Philip Morris USA Inc. and its parent, Altria Group Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Co.; British American Tobacco Ltd.; Lorillard Tobacco Co.; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute.
Extortion inspiration
By Jacob Sullum
October 25, 2005
The Justice Department's lawsuit against the country's leading tobacco companies accuses them of "racketeering." Yet the government's lawyers are the ones behaving like mobsters. Once you cut through the legalese, the message they're sending is clear: "Nice business you've got here. It would be a shame if something happened to it."
Read The Massive Racketeering Suit Against Big Tobacco:
The District Judge's RICO Ruling, and Why It Is Likely to Be Reversed
By ANTHONY J. SEBOK
anthony.sebok@brooklaw.eduOctober 18, 2005 United States v. Philip Morris et al. is a massive civil racketeering suit now being tried in Washington D.C. The suit is yet one more battle in a bizarre and hard fought legal war between Big Tobacco and its enemies. In it, the Department of Justice seeks a court order telling the tobacco companies to "disgorge" (that is, pay to the government) $280 billion dollars in allegedly ill-gotten profits.
Read Supreme Court Rejects DOJ Tobacco Appeal
WASHINGTON -(Dow Jones)- With the U.S. Supreme Court's rejection of a key appeal Monday, the tobacco industry dodged attempts by the Justice Department to collect $280 billion in its ongoing civil racketeering lawsuit against the industry.
The high court's rejection of the government appeal returns the focus of the litigation back to the Washington-based U.S. District Court, where Judge Gladys Kessler is expected to rule on the case later this year.
It also marks a striking loss for the government, which saw a case initiated with great fanfare in 1999 reduced to a smattering of potential anti-smoking initiatives that still may not pass court muster.
"We're obviously disappointed," said Attorney General Alberto Gonzales, speaking to reporters at a press conference announcing an unrelated health-care fraud case.
"We believe strongly in this case," he said, adding that he'll meet with DOJ's tobacco team in coming days to "evaluate where we go from here."
Jonathan Turley, professor at George Washington University Law School, said DOJ has itself to blame by pushing too far with a law aimed at organized crime to extract hundreds of billions from cigarette makers. "It's one more in a litany of embarrassing losses. This case has been a textbook case of compulsive gambling behavior," he said.
The financial disgorgement issue was on appeal from the D.C. Circuit where three-judge panel voted 2-1 to bar the government's disgorgement request, saying financial penalties are allowed in criminal racketeering cases but not in civil lawsuits. The 1964 Racketeer Influenced and Corrupt Organizations Act was originally passed to combat organized crime.
The news sent tobacco stocks soaring, with Altria, a Dow component, hitting a 52-week high.
The government, in filings with the Supreme Court, argued the lower courts had wrongly closed off its ability to seek the payments - based on past profits and proceeds from those profits - from several tobacco companies for an alleged scheme of defrauding the public on the dangers of smoking.
"The government's ability to achieve justice in this case depends on the availability of the full scope of equitable remedies that Congress conferred," the U.S. Solicitor General's office said in a legal brief, arguing it could seek disgorgement of both past and future profits under the racketeering statutes.
Tobacco lawyers also deny the underlying civil RICO charge and say a 1998 settlement with states that includes a $246 billion settlement and marketing and other restrictions makes future fraud impossible.
Other nondisgorgement remedies outlined by the Justice Department include a $ 10 billion industry-funded smoking cessation plan, another $4 billion in anti- smoking advertising through the American Legacy Foundation and court-appointed industry monitors.
Antismoking advocates urged DOJ to press on.
"The government should pursue the strongest available remedies," said William Corr, Executive Director of the Campaign for Tobacco-Free Kids, saying cessation and education funding "hold the greatest potential for reducing the death and disease caused by tobacco use in our country."
But even those remedies may be threatened by the disgorgement ruling.
Kessler, who has called the D.C. Circuit's ruling a "body blow" to the government, said in February that the D.C. Circuit's ruling "as this court reads it, simply does not permit non-disgorgement remedies to prevent and restrain the effects of past violations of RICO."
William Ohlemeyer, associate general counsel of Philip Morris USA parent Altria Group Inc. (MO), said in a statement that the Supreme Court " appropriately denied" DOJ's request for appeal.
Tobacco companies named in the lawsuit include Philip Morris USA Inc., a unit of Altria, R.J. Reynolds Tobacco Holdings Inc. and Brown & Williamson, which have merged to form Reynolds American Inc. (RAI); British American Tobacco PLC ( BTI); Vector Group Ltd.'s (VGR) Liggett Group Inc.; and Loews Corp.'s (LTR) Lorillard Inc.
The companies, in their Supreme Court briefs, accused the Justice Department of trying to force an expansion of the racketeering laws. "Every appellate court to consider the issue has rejected the government's sweeping interpretation," the tobacco companies said.
The government's lawsuit against the tobacco industry began six years ago in 1999. The lawsuit contends the tobacco industry mislead the American public about the dangers of smoking for 50 years and alleges the fraud continues and will continue into the future. The suit asked for $280 billion, which the government said represents "ill-gotten gains" from the sale of cigarettes to minors.
The Supreme Court didn't note any recusals in its short order rejecting the government's appeal.
The disgorgement request was rejected by the D.C. Circuit in February. When asked to reconsider the ruling, the D.C. Circuit deadlocked on whether to rehear the issue. Chief Justice John Roberts, who was on the D.C. Circuit at the time, recused from that vote.
Analysts have long seen tobacco as being on strong legal footing on disgorgement, and largely saw the Supreme Court's decision on whether or not to take the appeal as a factor affecting the timing of the lawsuit's final resolution. The timing, in turn, could play a role in the Altria Group's decisions on its expected breakup.
In the past, Altria management has said it would like to break up the company into two or three parts once outstanding legal issues, including the DOJ case, are resolved.
"One of the major litigation hurdles has now been resolved favorably enough. Therefore, Altria Group is closer to its eventual break-up of its company," Citigroup said in a research report.
The case is U.S. v. Philip Morris, 05-92.
-By Mark H. Anderson, Dow Jones Newswires; 202-862-9254; mark.anderson@ dowjones.com
-By Brian Blackstone, Dow Jones Newswires; 202-828-3397; brian.blackstone@ dowjones.com
(Christina Cheddar Berk contributed to this article)
(END) Dow Jones Newswires
10-17-051332ET
Read Court denies tobacco case
After the Circuit Court ruled, Judge Kessler said that decision was a significant blow to the government's case. The Justice Department, in a move that has led to an internal investigation within the Department, has pared down the alternative remedies it is seeking, if a RICO violation is found.
Read
There are two news stories below about the Federal RICO trial and today's decision. The ACS, AHA, ALA and Tobacco Free Kids, showing their greed again, are already blustering about this decision...they are obsessing over the money!! I'm afraid It's still far from over. The massive non-profits will not take "no" for an answer. Here is another figure of interest to all tax payers and smokers:
"The government has spent $140 million since 1999 litigating the case, and the Justice Department also is trying to force tobacco companies to pay those costs."
# # # #
"An expert had recommended a $130 billion stop-smoking program" The expert was none other than a Dr. Fiore.
I have recently spoken at length with someone who is compiling a profile for Dr. Fiore in the On Wisconsin the alumni magazine of the University of Madison. Further explaining the Doctor's identity are a couple of excerpts:
"Michael Fiore, a doctor and researcher who was the architect of a national smoking cessation plan that he testified about during the government's racketeering trial against the tobacco industry. The plan would cost $130 billion over 25 years with the stated goal of helping the 33 million smokers in the U.S. quit. The biggest piece of the plan is a national quit line that would include free medications -- i.e. the patch and other nicotine replacement drugs.
"Dr. Fiore is also the Co-Director of a Robert Wood Johnson Foundation National Program Office. RWJF has significant holdings in Johnson & Johnson worth just a shade over $5.4 billion dollars ("the largest single shareholder of Johnson & Johnson common stock"), and Johnson & Johnson distributes nicotine inhalers and patches under the Nicotrol name brand through its subsidiary McNeil Consumer Products......"
"....According to published media reports in March 1998, Glaxo Wellcome directly funded a professorship in nicotine dependence at Wisconsin State University. That professor testifies in public forums in support of state-mandated smoking bans, using his medical and academic credentials to support demands for "Tobacco Free" and "Smoke Free," but, conspicuously, not "Nicotine Free," work places. A professor's paycheck seems to be dependent upon Glaxo Wellcome's anti-tobacco dollars. http://www.forces.org/writers/kjono/files/a.htm "
This sure reminds me of putting a fox in the hen house by letting Fiore determine smoking cessation programs. Do the words "conflict of interest" come to mind?
Garnet Dawn
Midwest Regional Director
The Smoker's Club, Inc.
The United Pro Choice Smokers Rights Newsletter
Hypocrisy and Doublespeak: Campaign for Tobacco-Free Kids Attacks Tobacco Industry for Lobbying for Public Health Legislation
October 4, 2005 By Michael Siegel.
The Campaign for Tobacco-Free Kids has attacked the tobacco industry for making a huge investment in lobbying Congress for its interests, chief of which is the FDA legislation that the Campaign is itself supporting.
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Even big guys deserve a fair trial
September 29, 2005 By Andres Martinez.
ARGUABLY THE dopiest question asked of John G. Roberts Jr. during his confirmation hearing was whether he would side with the "little guy" or the "big guy" in his judicial rulings.
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Americans for Nonsmokers' Rights (ANR) Should Stick to Public Health, Not Political Attacks and Smear Campaigns
September 28, 2005 By Michael Siegel.
As a former Board member of Americans for Nonsmokers' Rights (ANR), it saddens me to see the depths to which the organization has sunk in recent years, and especially in the past weeks, as a group that I thought was committed to integrity in its pursuit of public health goals has increasingly become involved in unwarranted political attacks, inappropriate intervention in litigation affecting the public's interests, and misleading smears against individuals and groups.
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Campaign for Tobacco-Free Kids Calls Reduced Smoking Cessation Remedy a Travesty of Justice
September 14, 2005
By Michael Siegel
In an action alert of that date, the Tobacco-Free Kids Action Fund told the group's constituents that DOJ was letting Big Tobacco off the hook and that the Campaign for Tobacco-Free Kids would step in and "fight back."
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Department of Justice's Reduced Smoking Cessation Remedy Called a "Tragedy"
9/11/05 By Michael Siegel.
If anything, I think it is the over-zealous and seemingly greedy obsession, on the part of anti-smoking organizations, with huge monetary remedies that are inconsistent with the law that is going to hurt the case more than anything else...
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Health Groups Seek To Revive Tobacco Cessation Plan
September 1, 2005 WASHINGTON -(Dow Jones)- Public health groups have asked a federal judge to revive a massive tobacco-funded smoking cessation program as part of the Justice Department's fraud suit against the industry weeks after DOJ sharply scaled back its own cessation proposal.
ReadU.S, tobacco companies propose racketeering case findings
August 15, 2005 By Tim Dobbyn
Tobacco companies countered that the government's case ignored restrictions placed on the industry in a 1998 settlement with state attorneys general and had failed to show the formation of a unlawful enterprise, as required to prove racketeering.
http://news.yahoo.com/Citizens' Commission Asks Judge Kessler for Inquisition into Remedy Change; Again Fails to Disclose Conflict of Interest
July 28, 2005 The Citizens' Commission to Protect the Truth has asked Judge Kessler to conduct an inquisition into the reasons for the Department of Justice's decision to reduce its requested remedy for a national smoking cessation program from $130 billion to $10 billion.
http://tobaccoanalysis.blogspot.com/A Late Twist in the Tobacco Case
Judge to Let Groups Seek Tougher Penalty if Companies Lose
July 23, 2005
By Marc Kaufman, Washington Post Staff Writer
Six weeks after the two sides rested in the Justice Department's racketeering case against the cigarette industry, the presiding federal judge agreed yesterday to let six public interest groups intervene and argue for tougher punishment if the government wins.
http://www.washingtonpost.com/
Health groups' views allowed into US tobacco case
July 22, 2005
WASHINGTON, July 22 (Reuters) - A federal judge said on Friday she will consider the views of anti-smoking and health advocates if she decides to impose sanctions against cigarette makers in the U.S. government's racketeering case against against the industry.
http://yahoo.reuters.com/
