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Case S389/2411: British American Tobacco Australasia Limited and Ors v. The Commonwealth of Australia 

Jump to full article: High Court of Australia (au), 2012-04-29

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JT International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v The Commonwealth of Australia [2012] HCATrans 92 (18 April 2012) 

High Court of Australia Transcripts
Jump to full article: Australasian Legal Information Institute, 2012-04-18

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JT International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v The Commonwealth of Australia [2012] HCATrans 93 (19 April 2012) 

Jump to full article: Australasian Legal Information Institute, 2012-04-19

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JT International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v The Commonwealth of Australia [2012] HCATrans 91 (17 April 2012) 

High Court of Australia Transcripts
Jump to full article: Australasian Legal Information Institute, 2012-04-17

Intro:

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DOJ Appeal: FINAL BRIEF FOR THE PLAINTIFF-INTERVENORS TOBACCO-FREE KIDS ACTION FUND, et al. March 12, 2012 

Jump to full article: Tobacco On Trial, 2012-03-15
Author: Gene Borio

Intro:

SUMMARY OF ARGUMENT

Defendants’ latest efforts to avoid the findings and remedies in this case must fail.

1. The Tobacco Control Act does not render this lawsuit moot.

Defendants present no facts demonstrating that they have ceased their unlawful practices, which continue. To the contrary, the new statute expressly provides that it does not “affect” this case in any way, and it covers different conduct than what was at issue here. Moreover, because Defendants are challenging key provisions of the statute, and other provisions have not even gone into effect, there is no basis upon which Defendants can legitimately contend that the mere enactment of the statute ended their decades-long campaign of fraud and deceit against the American public. Defendants also fail to explain why this particular statute will fundamentally constrain their misconduct despite their failure to comply with prior purported constraints such as the MSA.

2. The primary jurisdiction doctrine also has no application here. This case has already been decided, and, in any event, the FDA has no role in monitoring Defendants’ compliance with RICO.

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DOJ Appeal: FINAL BRIEF FOR APPELLEE March 12, 2012 

Jump to full article: Tobacco On Trial, 2012-03-15
Author: Gene Borio

Intro:

SUMMARY OF ARGUMENT

The district court found that defendants violated RICO by conducting an enterprise, through a pattern of racketeering activity consisting of violations of federal mail and wire fraud statutes, as part of a scheme to defraud American consumers about the health effects and addictiveness of cigarettes. The court further found that defendants were reasonably likely to commit future RICO violations and that equitable relief was warranted pursuant to 18 U.S.C. § 1964(a). This Court affirmed the district court’s liability findings and remedial order in all significant respects.

Defendants now argue that passage of the Tobacco Control Act has deprived the district court of jurisdiction by precluding “any reasonable possibility” of future RICO violations. Def. Br. 39. On this basis, defendants urge that there is no longer a live controversy and that the district court should be required “to vacate [its] injunctions and factual findings and dismiss the case with prejudice.”

Their argument fails at every turn.

I. Congress did not believe that the Tobacco Control Act obviated the need for equitable relief in this litigation. Congress was fully aware of this litigation and its legislative findings make repeated references to the district court’s findings. Congress was also at pains to make clear that the legislation would not disturb the judgment affirmed by this Court. The statute provides that “[n]othing” in its provisions “shall be construed to . . . affect any action pending in Federal, State, or tribal court[.]”

The district court properly rejected defendants’ contention that the Tobacco Control Act “forecloses any reasonable likelihood that Defendants will associate together in the future to commit joint RICO violations.” Def. Br. 32. The court explained that its previous ruling did not rest on the absence of legal restrictions. The court found a reasonable likelihood of future violations precisely because defendants, in this Court’s phrase, had demonstrated a “proclivity for unlawful conduct.” The district court’s opinion is replete with findings that detail the varied means by which defendants violated or circumvented statutes, regulations, and settlement agreements. This Court substantially affirmed the remedial order precisely because of defendants’ demonstrated “proclivity for unlawful conduct.” Ibid. The district court was not required to assume that passage of the Tobacco Control Act would effect a sea change in defendants’ behavior so as to deprive it of jurisdiction.

Defendants’ strategy is impressively audacious. They ask this Court to order that this case be dismissed with prejudice in light of the Tobacco Control Act. At the same time, in litigation in this Circuit and the Sixth Circuit, they seek to have key provisions of the Act and its implementing regulations declared unconstitutional.

Were defendants to succeed in both efforts, they would thus dispense with both the RICO judgment and the Tobacco Control Act. Even apart from the other fundamental flaws in defendants’ contentions, they cannot properly seek vacatur and dismissal on the basis of a statute that they are attempting to invalidate.

II. Defendants’ invocation of the primary jurisdiction doctrine is equally unavailing. As the district court correctly explained, that doctrine applies in “circumstances in which an agency and a court ha[ve] to make the same determination under the same statute or regulation—obviously, not the case here.”

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DOJ Appeal: APPELLANTS’ OPENING BRIEF FINAL VERSION March 12, 2012 

Jump to full article: Tobacco On Trial, 2012-03-15
Author: Gene Borio

Intro:

SUMMARY OF ARGUMENT

The FDA Act extinguished the district court’s jurisdiction to issue, and continue to enforce, forward-looking injunctive relief against Defendants—which is the only relief that the Government can even potentially recover under Section 1964(a) of RICO. Accordingly, this Court should reverse the district court’s order and remand with instructions to vacate the court’s injunctions and underlying factual findings and dismiss the case as moot.

I. Under Article III, a district court has jurisdiction to issue injunctive relief only where, in the absence of such relief, there is a “realistic threat” that the challenged activity will recur in the “reasonably near future.” City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.7, 108 (1983). Moreover, even where the requirements of Article III are met, a district court’s jurisdiction to issue injunctive relief under RICO is further limited by Section 1964(a) to “forward-looking remedies” that “prevent and restrain” RICO violations that are reasonably likely to occur in the future. United States v. Philip Morris USA Inc., 396 F.3d 1190, 1198 (D.C. Cir.), cert. denied, 126 S. Ct. 478 (2005).

The FDA Act eliminated the district court’s jurisdiction under both Article III and Section 1964(a) of RICO. The Act grants the FDA far-reaching authority to regulate Defendants’ design, manufacturing, and marketing of cigarettes, and provides the FDA with substantial funding and powerful enforcement tools to ensure compliance with its requirements. In light of this comprehensive federal regulatory program governing virtually every aspect of Defendants’ business, there is no realistic threat or reasonable likelihood that Defendants will engage in the future in any of the joint racketeering conduct that the district court’s injunctions are designed to prevent.

At a minimum, the district court should have vacated or modified several specific portions of its injunctions. These include the district court’s prohibition on the use of “light” and “low tar” descriptors, as well as the requirement that Defendants make corrective statements about the health effects and addictiveness of smoking, which, this Court has held, must be “confine[d]” to statements “geared towards thwarting prospective efforts by Defendants to . . . mislead consumers.” United States v. Philip Morris USA Inc., 566 F.3d 1095, 1145 (D.C. Cir. 2009) (per curiam), cert. denied, 130 S. Ct. 3501 (2010) (emphasis added). There is no reasonable likelihood that Defendants will engage in the future in the activity targeted by these injunctions—the dissemination of false information about the health risks of smoking—because the FDA Act prohibits the use of “light” and “low tar” descriptors, imposes stringent civil and criminal penalties for the false labeling and advertising of cigarettes (including false statements about the health effects and addictiveness of smoking), and affords the FDA extensive authority to monitor Defendants’ marketing practices.

II. Even if the district court did retain jurisdiction to issue injunctive relief in this case, it should have vacated its injunctions in deference to the primary jurisdiction of the FDA over matters of smoking and health. The Act designates the FDA “the primary Federal regulatory authority with respect to the manufacture, marketing, and distribution of tobacco products.” § 3(1). In discharging this statutory mandate, the FDA will be able to invoke its substantial scientific expertise and institutional experience regarding public-health issues. The district court, in contrast, lacks any such expertise or experience, and the overlapping set of federal regulatory requirements imposed by its injunctions will inevitably interfere with the FDA’s regulatory authority and create conflicting sets of legal obligations. The primary jurisdiction doctrine is intended to avoid precisely this type of regulatory uncertainty and disuniformity.

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BAT v COMMONWEALTH OF AUSTRALIA (PDF) 

SUBMISSIONS OF THE PLAINTIFFS
Jump to full article: High Court of Australia (au), 2012-03-26

Intro:

Part 1: Publication of Submissions

1. These submissions are in a form suitable for publication on the internet.

Part II: Issues Arising in the Proceedings

2. The issues arising in these proceedings are:

(a) First, whether, apart from s. 15 of the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act), some or all of the provisions of the TPP Act would effect an acquisition of any, and if so what, property of the plaintiffs or any of them otherwise than on just terms (within the meaning of s. 51(xxxi) of the Constitution.

(b) Secondly, whether s. 15 of the TPP Act is a valid law of the Commonwealth.

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Case ID: N12C-02-171 - ANTONIO EMILIO HUPAN ET AL V. ALLIANCE ONE NTERNAT 

Case Parties / Docket Entries
Jump to full article: Delaware State Courts, 2012-04-04

Intro:

Filing Date Description Name Monetary 14-FEB-2012 05:21 PM INIT FILING PERSONAL INJURY HAUPT, JOHN ZACHARY Entry: INITIAL FILING PERSONAL INJURY DATE DOCKETED: FEBRUARY 16, 2012 . . .

04-APR-2012

02:20 PM WRIT ISSUED

Entry: WRIT(S) ISSUED ON DATE DOCKETED: APRIL 5, 2012 1 WRIT ISSUED ON 04-04-2012 OF SUMMONS AND COMPLAINT FOR SERVICE ON MONSANTO COMPANY BY SERVING REGISTERED AGENT AT 2711 CENTERVILLE ROAD, SUITE 400, WILMINGTON, DE ACCEPTED BY: RAM TRANSACTION ID: 43474668

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FRAZIER v. RJR, PHILIP MORRIS 

An Appeal from the Circuit Court for Miami-Dade County, John Schlesinger, Judge.
Jump to full article: Third District Court of Appeal (FL), 2012-04-11

Intro:

In this Engle-progeny1 case, the jury returned a special interrogatory verdict in favor of the tobacco company defendants, appellees here, based on the affirmative defense that the plaintiff’s, Ms. Frazier’s, lawsuit was barred by the four-year statute of limitations, section 95.11(3), Florida Statutes (1994). Ms. Frazier has appealed the denial of her motions for directed verdict and new trial regarding the limitations issue. Appellees Philip Morris and R.J. Reynolds have cross-appealed the circuit court’s ruling granting preclusive effect to certain findings by the Supreme Court of Florida in Engle and the trial court’s refusal to instruct the jury regarding the twelve-year statute of repose applicable to fraud claims, section 95.031(2)(a), Florida Statutes (1994).

In the direct appeal, we reverse and remand the case for a new trial for two independently sufficient reasons. First, there was no competent record evidence that “the accumulated effects of the substance [had] manifest[ed] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product”2 before the undisputed limitations bar date of May 5, 1990. For this reason, Ms. Frazier’s motion for a directed verdict on the statute of limitations issue should have been granted.

Second, Ms. Frazier made and preserved meritorious objections to the court’s adoption of the jury instruction and special interrogatory verdict question submitted by the appellees on the statute of limitations defense. Although this issue becomes moot on the basis of our ruling on the direction of a verdict, we conclude that Ms. Frazier’s motion for a new trial was well taken on this issue as well.

In the cross appeal, we affirm the trial court’s rulings on both issues.

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RJR v. WEBB (PDF) 

Jump to full article: Florida's First District Court of Appeal , 2012-04-09

Intro:

The amount of the compensatory damages suggests an award that is the product of passion, an emotional response to testimony regarding difficulties Ms. Webb and her father faced and overcame before cancer befell him, rather than evidence of his illness, subsequent death, and the noneconomic consequences of the death itself. . . .

Although not determinative, the fact that the jury awarded double the amount of compensatory damages requested by Ms. Webb’s counsel and assigned to Mr. Horner half of the percentage of fault her counsel acknowledged during closing argument suggests the jury was influenced by prejudice or passion. While a “‘jury might properly award damages equal to or in excess of those requested by counsel in closing argument,’ . . . it is common practice for attorneys to suggest damages well in excess of the amount that could be sustained under the facts in the case.” (“A verdict is not per se excessive because the jury awards the full amount of damages suggested by counsel for the prevailing party, but we would be exceedingly naive should we fail to recognize that as a matter of practice the advocate usually suggests to the jury a figure for damages substantially in excess of the amount that is clearly supportable by the evidence and likewise in excess of the amount which he deems to be supportable in point of law should the jury happen to return a verdict approaching the amount suggested.”). Certainly the compassion Mr. Horner exhibited during his lifetime, and Ms. Webb’s deafness and devotion both to him and her first born, could inspire sympathy and admiration. In the circumstances, however, the compensatory damages award is more than the evidence at trial reasonably supports and “shocks the judicial conscience.” The trial court abused its discretion when it denied RJR’s motion for remittitur or new trial.

Because the award of compensatory damages must be vacated, we also vacate the award of punitive damages. See Engle, 945 So. 2d at 1265 (“‘[C]ourts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.’ Thus, the amount of compensatory damages must be determined in advance of a determination of the amount of punitive damages awardable, if any, so that the relationship between the two may be reviewed for reasonableness.” . . .

V.

We reverse both the compensatory and the punitive damage awards and remand the case with directions that the trial court grant the motion for remittitur or order a new trial on damages only. We affirm the judgment in all other respects.

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BROIN v. PHILLIP MORRIS COMPANIES, INC. - Opinion filed March 21, 2012. 

Jump to full article: Leagle, 2012-03-21

Intro:

Norma R. Broin, et al. (flight attendants) petition for certiorari review of an order disqualifying their attorneys in this case. We quash the trial court order because it departs from the essential requirements of law.

This appeal arises from a 1991 class action brought by numerous flight attendants against several tobacco companies. . . .

Here, petitioners' right to be represented by experienced counsel of their choice is outweighed by any prejudice to the respondents. Mr. Gerson and Mr. Hunter are familiar with the history of this litigation, have demonstrated their ability to effectively advocate for their clients, and seek to provide greater benefits to all class members. Conversely, prejudice to the respondents is minimal. Mr. Gerson and Mr. Hunter were not lead counsel in the original action. Thus, their limited interaction with the respondents and their counsel would have resulted in little access to confidential information. Moreover, although arising from the prior litigation, the present action involves a different issue. Petitioners are not asking that the court undo the prior settlement, rather they are requesting that the court determine whether the foundation created under the settlement is functioning as originally intended.

For these reasons, we find that the trial court departed from the essential requirements of law in disqualifying petitioners' counsel, quash the order of disqualification, and remand to the trial court for further proceedings in accordance with this opinion.

Petitions granted.

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TOBACCO v. DOUGLAS (PDF) 

Jump to full article: Amazon Web Services / Simple Storage Service (Amazon S3) , 2012-03-30

Intro:

Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Liggett Group, LLC (the Tobacco Companies), challenge the final judgment entered after jury trial which awarded James L. Douglas, as the personal representative of the Estate of Charlotte M. Douglas, $2.5 million as damages on claims based on Mrs. Douglas' smoking-related death.1 . . .

we now turn our attention to the facts and record before us. We agree with the Fourth District's conclusions that the Florida Supreme Court's language in Engle III clearly states that the jury findings in that case are binding on future claims as to the issues of the Tobacco Companies' conduct. The supreme court described those findings as "common issues relating exclusively to the defendants' conduct and the general health effects of smoking." The supreme court then concluded that "[c]lass members can choose to initiate individual damages actions and [that] the Phase I common core findings . . . will have res judicata effect in those trials."

We also agree with the Fourth District in concluding that to require post- Engle III plaintiffs to relitigate issues related to the Tobacco Companies' conduct and the general health effects of smoking would undercut the intent of the Florida Supreme Court's Engle III decision. As such, like the Fourth District, we reject the Tobacco Companies' argument that post-Engle III plaintiffs should be required to prove specific defects existing in specific cigarettes.

We further note that we do not read the Fourth District's opinion in Brown to require a bifurcated trial court proceeding but rather only to require that the jury be instructed on legal causation separately for the consideration of class membership and then again for consideration of the cause of action.

Because the Engle Phase I findings are accepted as to the conduct of the Tobacco Companies and the health effects of smoking, to prevail on the theory of strict liability in the instant case, Mr. Douglas needed only to prove legal causation and damages on his claims. The verdict form clearly posed the question of legal causation to the jury, and the jury made a finding that Mrs. Douglas' diseases were legally caused by her smoking cigarettes manufactured by the Tobacco Companies. That coupled with the Phase I finding that the cigarettes were "defective and unreasonably dangerous" amounts to strict liability. We therefore affirm the final judgment based on a theory of strict liability.

Finally, the Tobacco Companies also argue that the Eleventh Circuit in its Brown case concluded that to allow res judicata to apply to the Phase I findings would be a violation of their due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. This argument was rejected by both the First District in Martin and the Fourth District in Brown. Furthermore, this position more recently has been rejected by the U.S. District Court for the Middle District of Florida in Waggoner v. R.J. Reynolds Tobacco Co. We too reject this argument.

We do agree, however, that the issue is one that will be applicable to the many individual class member cases now being considered by the trial courts of this state. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and article 5, section 3 of the Florida Constitution, we certify the following question as being one of great public importance:

DOES ACCEPTING AS RES JUDICATA THE EIGHT PHASE I FINDINGS APPROVED IN ENGLE V. LIGGETT GROUP, INC., 945 SO. 2D 1246 (FLA. 2006), VIOLATE THE TOBACCO COMPANIES' DUE PROCESS RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

Affirmed; question certified.

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Oral Argument Today 

Jump to full article: US Court of Appeals for the DC Circuit, 2012-04-09

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· Indiana

STIELER v. CITY OF EVANSVILLE and EVANSVILLE COMMON COUNCIL (PDF) 

Jump to full article: Evansville (IN) Courier & Press, 2012-03-30

Intro:

In deciding the issues presented by Plaintiffs' Amended Verified Motion for Preliminary Injunction it is important for the Court to note that it has not decided or expressed any legal opinion as to whether there should be a smoking ban for the City of Evansville. This is a legislative judgment left solely to the discretion of the Common Council of the City of Evansville. The impact of such decisions, fiscal and otherwise, are given by law to the judgment of that body and this Court is mandated by binding precedent of the Indiana Supreme and Appellate Courts, not only not to second guess that judgment, but to give it substantial deference. This is true even if this Court believes that a public policy is unsound or unwise. This Court cannot substitute its judgment for the legislative body which enacted the Ordinance. If the legislative judgment cannot clearly be said to be arbitrary or manifestly unreasonable, the Court is compelled by law to uphold the same.

66: The Plaintiffs sincere concerns about the impact of this Ordinance on their businesses are entirely understandable, but once the Court has determined that legislative judgments and classifications were made according to the law, it lacks lawful authority to substitute its judgment for that of the legislative body. Plaintiffs must address their concerns concerning the impact of this Ordinance to the legislative body that enacted the Ordinance. Relief from any negative impact that the Ordinance may have on their businesses must come from either the legislative or political process. Because Plaintiffs are not able to establish that there is a reasonable likelihood of success at a trial on the issue of whether the exemption in the challenged Ordinance violates either Article I § 23 of the Indiana Constitution or Article I § 9 of the Indiana Constitution, the relief requested by the Amended Verified Motion for Preliminary Injunctions filed by each Plaintiff is hereby denied.

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