Petition to New York Judge Crane to Delay the AG Settlement

Petition to New York Judge Crane to Delay the AG Settlement

Bill Godshall
Save Lives, Not Tobacco

The Ad-Hoc Coalition on the Proposed Tobacco Settlement
9 Murray Street, Third Floor
New York, New York 10007
Tel.: 212-349-6460
Fax: 212-349-1366

November 30, 1998

Justice Stephen G. Crane
Supreme Court of the State of New York
Civil Branch
60 Centre Street
New York, New York 10007

Hand Delivered

Re: The State of New York and Dennis C. Vacco, Attorney General v. Philip Morris Incorporated, et. al, Index No: 400361/97

Dear Justice Crane:

The parties to the above action have announced their intention to immediately seek the Court’s approval of a final judgment by consent. The undersigned public officials, organizations and individuals respectfully request that your Honor postpone your determination of the parties' request for 45 days. The purpose of this letter is not to oppose the proposed settlement. Instead the purpose is to request sufficient time for each of us to review the parties' proposal in order to decide which, if any, may seek leave to appear as amicus curiae.

We respectfully suggest that the Court, in the exercise of its supervisory authority over the current action and the settlement thereof, not permit the settlement to become final without permitting a reasonable time for this very complex agreement to be studied and evaluated. Its terms were first announced on November 16, 1998, and some of us have yet to obtain our own copy of the proposed consent decree and its supporting documents, or to meet with our lawyers and other experts to evaluate it.

We believe that before a final determination is made by the Court--binding the State, its political subdivisions, agents and its citizens for decades into the future--the Court should have the benefit of our independent review and analysis. Individually and collectively, we have vast experience with the complicated issues associated with tobacco use and smoking, particularly illegal, underage tobacco use.

While more time is needed to review the settlement, our hurried understanding of it leads us to believe there may be many serious flaws. Some are as follows:

- The proposed settlement establishes a partnership between New York State and domestic tobacco companies, in which future payments will be contingent upon future tobacco profits, rather than paying the settlement costs up front.

- Not only does the proposed settlement preempt subordinate governmental entities from pursuing legal claims against tobacco interests for past misconduct, it preempts them from pursuing legal claims against tobacco interests for all future acts, even those unrelated to Medicaid reimbursement, the subject of this action.

- The proposed settlement protects the multi-national assets of tobacco companies.

- The proposed settlement reduces the amount of payments, dollar for dollar, if the federal government raises its cigarette excise tax.

- The proposed settlement will continue to allow the tobacco industry to market to children as long as it is not the "primary" purpose.

- The settlement fails to contain a proviso calling on Congress to prevent the Federal government from moving to recoup its Medicaid expenditures.

In sum, we are justifiably concerned about the true implications of the settlement because the parties have not made timely information available and are rushing to bring the settlement to a conclusion. On the other hand, if the settlement is truly in the public's interest it will with stand our scrutiny.

Clearly, your Honor will be reviewing a far reaching and unprecedented settlement to determine its adequacy, fairness, and reasonableness. Under the circumstances, we propose that the Court adopt the liberal approach to inviting amicus curiae that the Court of Appeals has adopted for matters before it. 22 N.Y.C.R.R. § 500.11(e). In so doing, the Court of Appeals recognizes that amicus curiae may "invite the court’s attention to law or arguments which might otherwise escape its consideration" or "would other wise be of special assistance to the court." See also Colgate-Palmolive Company v. Erie County, 68 Misc. 2d 704; 327 N.Y.S.2d 488 (Sup. Ct., Erie Co. 1971) (trial court invited amicus curiae in proceeding involving important questions of public interest). Many of the undersigned may serve a similar service to this Court, but may do so only if sufficient time for review, analysis, and serious comment is allowed.

In conclusion, we ask that your Honor advise of us of the date by which an application for leave to appear as amicus curiae must be filed with the Court, in order that it may be timely considered. If your Honor will please notify the undersigned, he will inform the other members of the Coalition.

Sincerely yours,

Andrew Goldberg, Esq. Members of the Ad-Hoc Coalition on the Proposed Tobacco Settlement

Senator Catherine Abate, New York State Senate

Assembly Member Richard N. Gottfried, Chair, Comm. on Health, New York State Assembly

Assembly Member Alexander B. Grannis, New York State Assembly

Assembly Member Rhoda S. Jacobs, New York State Assembly

New York City Comptroller Alan G. Hevesi

Eliot Spitzer, Attorney General Elect of New York State

Council Member Thomas K. Duane, New York City Council

Council Member Ronnie M. Eldridge, New York City Council

Council Member Sheldon S. Leffler, New York City Council

Rev. Calvin O. Butts, III, Pastor, Abyssinian Baptist Church

Carol E. McKenna, Director of Public Affairs, American Cancer Society of New York State

American Council on Science and Health

Carlos Alvarez, Executive Director, American Lung Association of Queens

Connie M. Schweitzer, Chief Executive Officer, American Lung Association of Western New York

John Storey, Managing Director, American Lung Association of Mid-New York

Glen Ivers, Executive Director, American Lung Association of Central New York

Margaret J. Collins, Executive Director, American Lung Association of the Finger Lakes Region, Inc.

Ernest P. Franck, President Elect, American Lung Association

Cindy Owens, Chief Executive Officer, American Lung Association of New York

Jack Poggi, Past President, American Lung Association of New York State

American Lung Association of Brooklyn

American Lung Association of Nassau-Suffolk

Elizabeth Miller, Executive Director, American Lung Association of New York State

Stanton Hudson, President, American Lung Association of New York State

American Lung Association of Hudson Valley

Robert Bendl, Managing Director, American Lung Association of Northeastern New York

Jeann M. Zannie Mumford, Executive Director, Cancer Action Inc.

Harold P. Freeman, M.D., Director, Cancer Control Center of Harlem, Harlem Hospital

Pearl V. Johnson, Coordinator, Coalition for a Smokefree El Barrio

Council on Alcoholism and Other Chemical Dependencies of the Finger Lakes

Bonnie W. Soley, Co-Chair, Erie-Niagra Tobacco Free Coalition Everett Foundation

William Kowalewski, Sr. Vice President, Franklin Hospital Medical Center

Lynne Gochenaur, Student Assistance Coordinator, Marcus Witman High School

New York County Medical Society

Blair Horner, Legislative Director, New York Public Interest Research Group (NYPIRG)

Barbara Christensen, Community Prevention Educator, Prevention Partners

Victor W. Sidel, MD, Member, Board of Directors, Public Health Association of New York City

Teresa Gable, Public Health Educator, Seneca County Health Department

Brian Dombrowski, Public Health Director, Seneca County Health Department

SmokeFree Educational Services, Inc.

Southern Tier Tobacco Awareness Coalition

Holly Widanka, Coordinator, Tobacco Action Coalition of the Finger Lakes

Joseph Christiano

Dr. Michael Dubin, M.D.


Copies As Follows:

Hand Delivered–

Lucia M. Valente
Chief Special Counsel
Office of the Attorney General of the State of New York 120 Broadway
New York, New York 10271

First Class Mail–

Philip M. Damashek
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Joseph W. Belluck, Esq.
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Ronald Motley
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Robert W. Gaffey
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Marjorie Press Lindblom
Kirkland & Ellis
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Thomas J. McCormack
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Robert E. Northrip
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Peter J. McKenna
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Anthony Mansfield
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Steven Klugman
Debevoise & Plimpton
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