566 F.3d 1095 (D.C. Cir. 2009), 06-5267, United States v. Philip Morris USA Inc.

Docket Nº:06-5267, 06-5268.
Citation:566 F.3d 1095
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, United States Department of Justice, et al., Appellees v. PHILIP MORRIS USA Inc., Formerly Known as Philip Morris Incorporated, et al., Appellees British American Tobacco (Investments) Ltd., Directly and as Successor to British-American Tobacco Company, Ltd., Appellant The Council for Tobacco Research-USA, Inc., et al., Ap
Attorney:Michael A. Carvin and Miguel A. Estrada argued the causes for appellants. With them on the briefs were David S. Eggert, Guy Miller Struve, Charles S. Duggan, David M. Bernick, Robert F. McDermott, Jr., Peter J. Biersteker, Michael S. Fried, John K. Crisham, Michael B. Minton, Bruce D. Ryder, Bruc...
Judge Panel:Before: SENTELLE, Chief Judge, TATEL and BROWN, Circuit Judges.
Case Date:May 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1095

566 F.3d 1095 (D.C. Cir. 2009)

UNITED STATES of America, United States Department of Justice, et al., Appellees

v.

PHILIP MORRIS USA Inc., Formerly Known as Philip Morris Incorporated, et al., Appellees

British American Tobacco (Investments) Ltd., Directly and as Successor to British-American Tobacco Company, Ltd., Appellant

The Council for Tobacco Research-USA, Inc., et al., Appellees.

Nos. 06-5267, 06-5268.

United States Court of Appeals, District of Columbia Circuit.

May 22, 2009

Argued Oct. 14, 2008.

Page 1096

[Copyrighted Material Omitted]

Page 1097

[Copyrighted Material Omitted]

Page 1098

[Copyrighted Material Omitted]

Page 1099

[Copyrighted Material Omitted]

Page 1100

[Copyrighted Material Omitted]

Page 1101

[Copyrighted Material Omitted]

Page 1102

[Copyrighted Material Omitted]

Page 1103

Appeals from the United States District Court for the District of Columbia (No. 99cv02496).

Michael A. Carvin and Miguel A. Estrada argued the causes for appellants. With them on the briefs were David S. Eggert, Guy Miller Struve, Charles S. Duggan, David M. Bernick, Robert F. McDermott, Jr., Peter J. Biersteker, Michael S. Fried, John K. Crisham, Michael B. Minton, Bruce D. Ryder, Bruce G. Sheffler, Alan E. Untereiner, Joseph Kresse, and Deborah Israel. Murray R. Garnick, Timothy M. Broas, James A. Goold, Gene E. Voigts, Clausen Ely Jr., Leonard A. Feiwus, James W. Newbold, Edward C. Schmidt, Arnon D. Siegel, Keith A. Teel, Theodore V. Wells, Jr., and Dan K. Webb entered appearances.

Alan E. Untereiner and Bruce G. Sheffler were on the briefs for appellant British American Tobacco (Investments) Limited.

David S. Eggert, Guy Miller Struve, and Charles S. Duggan were on the briefs for appellant Altria Group, Inc.

Daniel J. Popeo, Paul D. Kamenar, Andrew G. McBride, and Thomas R. McCarthy were on the brief for amici curiae National Association of Manufacturers and the Washington Legal Foundation urging reversal.

Scott A. Sinder was on the brief for amicus curiae National Association of Convenience Stores in support of appellants.

Robin S. Conrad, Amar D. Sarwal, Theodore B. Olson, and Matthew D. McGill were on the brief for amicus curiae Chamber of Commerce of the United States of America in support of appellants urging reversal.

Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Alisa B. Klein, Mark R. Freeman, Sarang Vijay Damle, Melissa N. Patterson, and Christopher J. Walker, Attorneys.

Page 1104

Howard M. Crystal argued the cause for intervenors Tobacco-Free Kids Action Fund, et al. With him on the briefs were Katherine A. Meyer and G. Robert Blakey.

Michael D. Hausfeld and Victoria S. Nugent were on the brief for amici curiae American College of Occupational and Environmental Medicine, et al. in support of appellee urging affirmance.

William C. Lieblich, Talis J. Colberg, Attorney General, Attorney General's Office of the State of Alaska, Terry Goddard, Attorney General, Attorney General's Office of the State of Arizona, Dustin McDaniel, Attorney General, Attorney General's Office of the State of Arkansas, Edmund G. Brown, Jr., Attorney General, Attorney General's Office of the State of California, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Joseph R. " Beau" Biden III, Attorney General, Attorney General's Office of the State of Delaware, Bill McCollum, Attorney General, Attorney General's Office of the State of Florida, Mark J. Bennett, Attorney General, Attorney General's Office of the State of Hawaii, Lawrence Wasden, Attorney General, Attorney General's Office of the State of Idaho, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Paul Morrison, Attorney General, Attorney General's Office of the State of Kansas, Greg Stumbo, Attorney General, Attorney General's Office of the State of Kentucky, Charles Foti, Jr., Attorney General, Attorney General's Office of the State of Louisiana, G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Douglas F. Gansler, Attorney General, Attorney General's Office of the State of Maryland, Martha Coakley, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Michael A. Cox, Attorney General, Attorney General's Office of the State of Michigan, Lori Swanson, Attorney General, Attorney General's Office of the State of Minnesota, Jim Hood, Attorney General, Attorney General's Office of the State of Mississippi, Jeremiah W. (Jay) Nixon, Attorney General, Attorney General's Office of the State of Missouri, Mike McGrath, Attorney General, Attorney General's Office of the State of Montana, Catherine Cortez Masto, Attorney General, Attorney General's Office of the State of Nevada, Kelly A. Ayotte, Attorney General, Attorney General's Office of the State of New Hampshire, Anne Milgram, Attorney General, Attorney General's Office of the State of New Jersey, Gary King, Attorney General, Attorney General's Office of the State of New Mexico, Andrew M. Cuomo, Attorney General, Attorney General's Office of the State of New York, Marc Dann, Attorney General, Attorney General's Office of the State of Ohio, W.A. Drew Edmondson, Attorney General, Attorney General's Office of the State of Oklahoma, Hardy Myers, Attorney General, Attorney General's Office of the State of Oregon, and Tom Corbett, Attorney General, Attorney General's Office of the Commonwealth of Pennsylvania, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Robert E. Cooper, Jr., Attorney General, Attorney General's Office of the State of Tennessee, William H. Sorrell, Attorney General, Attorney General's Office of the State of Vermont, Robert M. McKenna, Attorney General, Attorney General's Office of the State of Washington, Darrell V. McGraw, Attorney General, Attorney General's Office of the State of West Virginia, Bruce A. Salzburg, Attorney General, Attorney General's Office of the State of Wyoming, and Vincent F. Frazer, Attorney General, Attorney General's Office of the Territory of the United States Virgin Islands, were on the brief for amici curiae States in support of appellee.

Page 1105

Allison M. Zieve and Brian Wolfman were on the brief for amici curiae Public Citizen, Inc., et al. in support of appellee urging affirmance.

Christopher N. Banthin and Stephen M. Kohn were on the brief for amici curiae American Medical Association and Others in support of appellee.

David C. Vladeck was on the brief for amicus curiae Tobacco Control Legal Consortium in support of appellee urging affirmance.

Harvey Kurzweil and Alexander M. Kayne were on the brief of amicus curiae the Citizens' Commission to Protect the Truth in support of appellee and supporting partial reversal.

Kerry S. Lane, appearing pro se, was on the brief as amicus curiae.

Before: SENTELLE, Chief Judge, TATEL and BROWN, Circuit Judges.

OPINION

PER CURIAM:

Defendants in this action, cigarette manufacturers and trade organizations, appeal from the district court's judgment finding them liable for conducting the affairs of their joint enterprise through a pattern of mail and wire fraud in a scheme to deceive American consumers. They also appeal from the district court's remedial order, which imposes numerous negative and affirmative duties on Defendants. The government and intervenors cross-appeal from the district court's denial of additional requested remedies. After considering all of the parties' arguments, we affirm in large part the finding of liability, remanding only for dismissal of the trade organizations. We also largely affirm the remedial order, including the denial of additional remedies, but vacate the order with regard to four discrete issues, remanding for further proceedings as directed in this opinion.

I. Background

The United States initiated this civil action under the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § § 1961-1968, in 1999. The government alleged that nine cigarette manufacturers and two tobacco-related trade organizations violated section 1962(c) and (d) of the Act. Those subsections make it unlawful for " any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity" or to conspire to do so. 18 U.S.C. § 1962(c), (d). The eleven Defendants were Philip Morris, Inc., now Philip Morris USA, Inc. (" Philip Morris" ); R.J. Reynolds Tobacco Company, now Reynolds American (" Reynolds" ); Brown & Williamson Tobacco Company, now part of Reynolds (" Brown & Williamson" ); Lorillard Tobacco Company (" Lorillard" ); The Liggett Group, Inc. (" Liggett" ); American Tobacco Company, which merged with Brown & Williamson and is now part of Reynolds (" American" ); Philip Morris Companies, now Altria (" Altria" ); British American Tobacco (Investments) Ltd. (" BATCo" ); B.A.T. Industries p.l.c., now part of BATCo (" BAT Industries" ); The Council for Tobacco Research-USA, Inc. (" CTR" ); and The Tobacco Institute, Inc. (" TI" ). The last two entities are trade organizations the cigarette manufacturers created; they do not manufacture or sell tobacco products. The district court dismissed BAT Industries from the case for lack of personal jurisdiction.

The government alleged that Defendants violated and continued to violate RICO by joining together in a...

To continue reading

FREE SIGN UP