Amended Petition For Permission To Intervene, And Petition For Permission To Intervene Of Smokefree Pennsylvania And Pennpirg
Amended Petition For Permission To Intervene, And Petition For Permission To Intervene Of Smokefree Pennsylvania And Pennpirg
Coalition for a Tobacco Free Pennsylvania, Citizens for Consumer Justice American Council on Science and Health, Clean Air Council, American Academy of Pediatrics, Pennsylvania Chapter Smokefree Educational Services
Date filed: December 2, 1998
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT CIVIL TRIAL DIVISION
Case No.: 97-2443
In re: COURT OF COMMON PLEAS COMMONWEALTH OF PENNSYLVANIA PHILADELPHIA COUNTY, BY D. MICHAEL FISHER, IN HIS OFFICIAL CAPACITY AS PENNSYLVANIA ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA,
Plaintiff,
v.
PHILIP MORRIS, INC.; R.J. REYNOLDS April Term, 1997 TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES, P.L.C.; THE AMERICAN TOBACCO COMPANY, INC. c/o BROWN & WILLIAMSON TOBACCO CORPORATION; LORILLARD TOBACCO COMPANY; LIGGETT GROUP, INC.; UNITED STATES TOBACCO COMPANY; THE TOBACCO INSTITUTE, INC.; THE COUNCIL FOR TOBACCO RESEARCH- U.S.A., INC.; SMOKELESS TOBACCO COUNCIL, INC.; and HILL AND KNOWLTON, INC.,
Defendants. :
SKLAROFF, GODSHALL, AND BARG's AMENDED PETITION FOR PERMISSION TO INTERVENE, AND PETITION FOR PERMISSION TO INTERVENE OF SMOKEFREE PENNSYLVANIA AND PENNPIRG
Pursuant to Rules 2327 and 2328, Pa.R.C.P., intervention petitioners Robert B. Sklaroff, M.D. (Sklaroff), William T. Godshall (Godshall) and Jeffrey Barg (Barg) hereby amend their petition to intervene in this action, filed November 18, 1998; and new intervention petitioners SmokeFree Pennsylvania and PennPIRG hereby petition for leave to intervene. Petitioners seek to prevent a wholesale denial of due process to any and all who might bring public interest litigation against the tobacco companies in the future, whose efforts will be thwarted by the Master Settlement Agreement's attempt to stifle all such litigation. Petitioners do not seek to block the proposed settlement in this petition. They seek simply to be removed from its effects so that they are free to continue their work in pursuit of tobacco control.
Petitioners
1. The persons petitioning for leave to intervene are three individuals, Sklaroff, Godshall and Barg, and two organizations, SmokeFree Pennsylvania and PennPIRG.
2. Individual Petitioners Sklaroff, Godshall, and Barg are citizens of the Commonwealth of Pennsylvania, each having demonstrated strong interest in pursuing legal and other remedies in furtherance of the goal of tobacco control, those pursuits including:
(a) Dr. Sklaroff has been an advocate for tobacco control during the past two decades. He presently serves as a consultant to the plaintiffs in recently-filed class action litigation claiming inter alia that tobacco companies violated federal civil rights law through the promotion of menthol-containing cigarettes.
(b) Mr. Godshall has been an advocate for tobacco control during the past decade. He is the executive director of petitioner SmokeFree Pennsylvania, and he presently serves as co-chair of the major national coalition promoting tobacco control (Save Lives, Not Tobacco: A Coalition for Accountability).
(c) Mr. Barg has been an advocate for tobacco control during the past decade. He presently serves as President of the Coalition for a Tobacco-Free Pennsylvania, and the Chair of the Tobacco-Free Education and Action Coalition for Health.
3. Petitioner SmokeFree Pennsylvania is a non-profit health research, education and action organization dedicated to protecting people from toxic tobacco smoke pollution, reducing illegal tobacco sales to minors, and creating policy incentives for nicotine addiction recovery.
4. Petitioner PennPIRG is a non-profit, non-partisan research and advocacy organization working in Pennsylvania on behalf of consumers and the environment.
5. The petitioners have in the past taken actions or assisted others in taking actions against tobacco companies for acts, omissions, or other conduct, including actions to compensate the public at large for harms caused by the use of or exposure to tobacco, such as claims for reimbursement of health care and addiction recovery costs borne by the citizenry or absorbed by medical providers for treatment of tobacco-related medical ailments. Petitioners are likely in the near future to take similar actions or to assist others in doing so. Class Action Allegations; Pa.R.C.P. 1702
6. The petitioners seek leave to intervene both individually and on behalf of a class of persons and organizations similarly situated to the intervenors with respect to the captioned action, to wit: all those who are arguably (but wrongfully) included with those whose accrued claims against the tobacco defendants would be released, and whose future claims against the tobacco defendants would be barred, by the release provisions of the Master Settlement Agreement (MSA), in particular, the MSA's definition of releasing parties.
7. The class is so numerous that joinder is impracticable.
8. There is a fundamental question of law which is common to members of the class, i.e. whether the Attorney General of Pennsylvania has the authority to bind them to the release provisions of the MSA. The claims and defenses of the representative petitioners are typical of the claims and defenses of the class, in that the class is defined by their common interest in challenging the Attorney General's capacity to release and bar their claims.
9. The representative petitioners will fairly and adequately protect the interests of the class, in that they are established leading citizens in Pennsylvania's community of tobacco control activists; they have funds to support this litigation, and they are represented by competent counsel.
10. A class action provides a fair and efficient method for adjudication of the controversy.
Why Petitioners Should Be Permitted To Intervene
11. The approval of the proposed Master Settlement Agreement (MSA) may affect legally enforceable interests of the representative petitioners and the class, in that:
(a) petitioners are individuals and organizations committed to tobacco control and who work toward that end in ways which include, either actually or potentially, public interest litigation against the tobacco defendants to enforce existing tobacco control measures or for compensation for tobacco-related injury to the citizenry of Pennsylvania as a whole;
(b) If the MSA is approved, its effect on petitioners and the class they represent will be to render them vulnerable to dismissal in any future action they might bring against the tobacco defendants in furtherance of their common goals of tobacco control, in that:
(i) the definition of releasing parties at Section II (pp) of the MSA includes, in addition to various subdivisions and political entities, persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer, or any other capacity, whether or not any of them participate in this settlement, (A) to the extent that any such person or entity is seeking relief on behalf of or generally applicable to the general public in such Settling State or the people of the State, as opposed solely to private or individual relief for separate and distinct injuries; (B) to the extent that any such entity (as opposed to an individual) is seeking recovery of healthcare expenses… paid or reimbursed, directly or indirectly by a Settling State.
(ii) petitioners are individuals who, and organizations which, if they attempt to bring public interest litigation against the tobacco companies, will be arguably included in the MSA's definition of releasing parties quoted above, and who would purportedly be bound by the settlement for all past and future claims;
(c) Petitioners and the class they represent have been completely excluded from participation in the negotiations leading up to the MSA; and
(d) Petitioners and the class they represent will receive no benefit from the settlement whatsoever.
12. Even if, in future litigation brought by any petitioner or class member against the tobacco defendants in furtherance of tobacco control, the court determines that the petitioner was not properly included in the MSA definition of releasing parties and is therefore not bound by the MSA release, the petitioner's legally enforceable interests will be adversely affected, in that:
-
(a) the MSA contains a provision, called the litigating releasing parties offset, which provides, at Section XII(b): If a releasing party (or any person or entity enumerated in subsection II(pp), without regard to the power of the Attorney General to release claims of such person or entity) nonetheless attempts to maintain a Released Claim against a released party, such released party shall give written notice of such potential claim to the attorney general of the applicable Settling State within thirty days of receiving notice of such potential claim…. The released party may offer the release and covenant as a complete defense. If it is determined at any point in such action that the release of such claim is unenforceable or invalid for any reason (including, but not limited to, lack of authority to release such claim), the following provisions shall apply:
-
(1) the released party shall take all ordinary and reasonable measures to defend the action fully. The released party may settle or enter into a stipulated judgment with respect to the action at any time in its sole discretion, but in such event, the offset described in subsection (b)(2) or (b)(3) below shall apply only if the released party obtains the relevant Attorney General's consent to such settlement or stipulated judgment, which consent shall not be unreasonably withheld….
(2) . . . A. In the event of a settlement or stipulated judgment, the settlement or stipulated judgment shall give rise to a continuing offset as such amount is actually paid against the full amount of such original participating manufacturers' share… of the applicable Settling State's Allocated Payment until such time as the settled or stipulated amount is fully credited on a dollar-for-dollar basis. (emphasis supplied).
(b) Thus, if the petitioner proceeds with litigation, this litigating releasing parties offset will cause the Commonwealth of Pennsylvania to intervene in any such litigation against a tobacco defendant, to strengthen the tobacco defendants' defense, because:
-
(i) in the event of petitioner's success, the litigating releasing parties offset provisions of Section XII(b) of the MSA would divert allocated payments from the Commonwealth to the petitioner;
(ii) the Commonwealth plaintiffs will therefore have a financial interest in tobacco defendants' prevailing against the petitioner, which interest would be directly adverse to the petitioner's interest; and
(iii) the Commonwealth plaintiffs' intervention in petitioner's litigation would be without objection from the tobacco defendants, as provided in § XII(b)2 C of the MSA; and
(c) No existing party to these or any other proceedings will adequately represent the petitioners' interests.
Relief Sought By Petitioners
13. The Petitioners seek to have all private, non-political individuals and entities deleted from the definition of Releasing Parties in II(pp) of the MSA.
WHEREFORE, The Petitioners respectfully request the Court to issue an Order granting them leave to intervene in these proceedings on behalf of themselves and the class they represent, and conditioning the Court's approval of the MSA (if the Court approves it) on the deletion of all individuals and entities who are not political subdivisions of the Commonwealth from the MSA's definition of Releasing Parties, by striking the MSA language quoted in paragraph 11(b)(i) of this complaint.
Respectfully submitted,
By:
ALICE W. BALLARD, ESQUIRE
Law Office of Alice W. Ballard, P.C.
225 South 15th Street, Suite 1700
Philadelphia, PA 19102
(215) 893-9990
Dated: December 2, 1998 Counsel for Intervenors
CERTIFICATE OF SERVICE
I, Alice W. Ballard, hereby certify that on this the 1st day of December, 1998, I caused a true and correct copy of Sklaroff, Godshall, and Barg's Amended Petition For Permission To Intervene, and Petition For Permission To Intervene of SmokeFree Pennsylvania and PennPIRG to be served today by First Class, postage prepaid mail upon counsel at the addresses listed below:
Buchanan Ingersoll Professional Corporation
Thomas L. Vankirk
Stanley Yorsz
Jack M. Stover
John R. Leathers
Jeffrey J. Bresch
One Oxford Certre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
(412) 562-8800
Attorneys for Plaintiff
Duane, Morris & Heckscher
Reeder R. Fox
Michael M. Baylson
J. Scott Kramer
Mark Lipowicz
Frank E. Noyes
4200 One Liberty Place
Philadelphia, PA 19103-7396
(215)979-1000
Attorneys for Plaintiff
Mary A. McLaughlin, Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Liaison Counsel for Defendants
By: _________________________________
ALICE W. BALLARD, ESQUIRE
Attorney for Plaintiff
Law Office of Alice W. Ballard, P.C.
225 South 15th Street, Suite 1700
Philadelphia, PA 19102
(215) 893-9990
VERIFICATION
I, Robert B. Sklaroff, M.D., a Petitioner in the foregoing action, hereby verify the statements made in the foregoing Sklaroff, Godshall, and Barg's Amended Petition For Permission To Intervene, and Petition For Permission To Intervene of SmokeFree Pennsylvania and PennPIRG, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
ROBERT B. SKLAROFF
Dated:
VERIFICATION
I, William T. Godshall, a Petitioner in the foregoing action, hereby verify the statements made in the foregoing Sklaroff, Godshall, and Barg's Amended Petition For Permission To Intervene, and Petition For Permission To Intervene of SmokeFree Pennsylvania and PennPIRG, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
WILLIAM T. GODSHALL
Dated:
VERIFICATION
I, Jeffrey Barg, a Petitioner in the foregoing action, hereby verify the statements made in the foregoing Sklaroff, Godshall, and Barg's Amended Petition For Permission To Intervene, and Petition For Permission To Intervene of SmokeFree Pennsylvania and PennPIRG, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
JEFFREY BARG
Dated:
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