Pennsylvania Invervenors' Brief
Pennsylvania Invervenors' Brief
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT
CIVIL TRIAL DIVISION
In re: : COURT OF COMMON PLEAS
Case No.: 97-2443
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.
PETITION FOR PERMISSION TO INTERVENE OF THE AMERICAN ASSOCIATION OF PUBLIC HEALTH PHYSICIANS; TRI-COUNTY TOBACCO-FREE COALITION, INC.; AMERICAN SOCIETY OF ADDICTIVE MEDICINE; COALITION FOR LEADERSHIP, EDUCATION AND ADVOCACY FOR RECOVERY; PEOPLES MEDICAL SOCIETY; AND FIRST AMENDED PETITION FOR PERMISSION TO INTERVENE OF THE CITIZENS FOR CONSUMER JUSTICE, COALITION FOR A TOBACCO-FREE PENNSYLVANIA, PA. CHAPTER, AMERICAN ACADEMY OF PEDIATRICS, CLEAN AIR COUNCIL, AND SMOKE FREE EDUCATIONAL SERVICES, INC. AND THE SECOND AMENDED PETITION FOR PERMISSION TO INTERVENE OF THE AMERICAN COUNCIL ON SCIENCE AND HEALTH, AND THE THIRD AMENDED PETITION FOR PERMISSION TO INTERVENE OF PENNPIRG, SMOKEFREE PENNSYLVANIA, AND THE FOURTH AMENDED PETITION FOR PERMISSION TO INTERVENE OF GODSHALL, SKLAROFF, AND BARG
Pursuant to Rules 2327 and 2328, Pa.R.C.P., the intervention petitioners listed in Attachment A to this petition (hereinafter "Intervention Petitioners") hereby petition for permission to intervene in this action. Intervention 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. Intervention 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.
Intervention Petitioners
1. The Intervention Petitioners, and their addresses, are listed in Attachment A to this petition, which is incorporated by reference herein.
2. Each Petitioner has demonstrated strong interest in taking action in furtherance of tobacco control. Specific facts regarding each Intervention Petitioner are included in Attachment B to this petition, which is incorporated by reference herein.
3. Some of the Intervention Petitioners have in the past taken actions or assisted others in taking actions against tobacco manufacturers, wholesalers, and or distributors, for acts, omissions, or other conduct, including actions for injunctive relief or to compensate the public at large for harms caused by the use of or exposure to tobacco. All petitioners rely on the potential to bring such actions in order to maintain their clout and credibility in the arena of tobacco control. Class Action Allegations; Pa.R.C.P. 1702
4. The Intervention 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."
5. The class is so numerous that joinder is impracticable.
6. 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 petitioner is 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.
7. The Intervention Petitioners will fairly and adequately protect the interests of the class, in that they are an established leading citizens in the nation's community of tobacco control activists; they have funds to support this litigation, and they have represented by competent counsel.
8. A class action provides a fair and efficient method for adjudication of the controversy.
Why Petitioners Should Be Permitted To Intervene
9. 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 organizations committed to tobacco control and which 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 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 which 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.
10. 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
- effectively immunize the tobacco defendants from the outcome of the litigation; and
- cause the Commonwealth of Pennsylvania to intervene in any such litigation against a tobacco defendant, to take on 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
11. 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 9(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: January 6, 1999 Counsel for Petitioners
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT
CIVIL TRIAL DIVISION
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. : Case No.: 97-2443
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.
MEMORANDUM IN SUPPORT OF ACTIVISTS' PETITION TO INTERVENE
Petitioners, a group of private (i.e., non-governmental) anti-tobacco activists, have petitioned to intervene in the above-captioned tobacco litigation, on behalf of themselves and others similarly situated. The Commonwealth of Pennsylvania, one of the plaintiffs in that litigation, has filed a Memorandum of Law in Opposition to the Petition to Intervene. The tobacco defendants have filed a similar memo. Petitioners file this memorandum in answer to the Commonwealth's and the defendants', and in support of our Petition to Intervene. We do not take issue with the statements of fact in the parties' memoranda, but we reject the characterizations and statements of opinion. Accordingly, we will address the remainder of this memorandum to legal issues.
1. Petitioners' Position With Respect To The Settlement.
The petitioners, like many other tobacco activists, believe that the settlement should be rejected because it gives too much to the tobacco companies and too little to the public, and because it creates a business partnership of concerted interests between the tobacco industry and the states.
However, we are not questioning the terms of the settlement at this point in the litigation. As stated in our petition, "Petitioners do not seek to block the proposed settlement in this petition." Rather, "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."
The background of our position is this: a primary goal of the tobacco companies has been to limit their exposure to class actions and other claims in the public interest. Consequently, the agreement purports to release such claims, whether they be past, present, or future. The agreement, as a consent judgment in the state courts, is binding on the states and (assertedly) on the subdivisions of state governments. However, private organizations like the petitioners, who might be expected to press anti-tobacco claims in court, are not parties to the present litigation and consequently would not normally be bound by this kind of consent judgment. To close this gap in coverage, the states and the tobacco companies, without even a pretense of due process (no notice, no opportunity to be heard) expanded the definition of "releasing parties" in the agreement to include private activists. The agreement's settlement structure is such that including any entity as a releasing party releases the claims of that entity against the tobacco industry. This means that the expansion of the definition of "releasing parties" had the ostensible effect of shielding the tobacco companies from claims by private organizations. It also had the collateral effect of depriving private organizations of the power to litigate such claims. In other words, the apparently simple addition to a definition would release claims that the petitioners and others in their class might have against the tobacco industry now or any time over the next two decades, without consent or process of law.
How do the states purport to effectuate these slight-of-hand releases? Simply by assuming that states' Attorneys General have the power to release private claims, and signing an agreement that purports to do so. Additionally, recognizing that a release by an Attorney General without express authority and without notice might be unenforceable, the states agreed to indemnify the tobacco companies against that eventuality by permitting the companies to offset the amounts they are required to pay on ostensibly released claims against the damages they are obligated to pay to the state under the settlement agreement. This indemnity supplements the release provisions by assuring the tobacco companies that even if the releases fail, the companies will suffer no loss. Thus did the states assume the risk of loss flowing from the assumption (which they must have known to be questionable) that Attorneys General have the power to release private claims. Against this background, Petitioners' position in this litigation is that the release provisions of the MSA effect an unconstitutional deprivation of Petitioners' right of access to the courts, and that the indemnity provisions of the MSA, by which the citizenry indemnifies the tobacco companies even for awards of punitive damages, are directly contrary to the public policy of the State which expressly forbids insurance against such liabilities.
2. Prayer For Relief.
Our petition to intervene asks the Court to condition its approval of the settlement on the parties' agreement to delete private activists from the definition of "releasing parties." The Commonwealth's answer is to point out that the definition of "releasing parties" is non-severable, which means that any modification would give the tobacco companies the right to terminate the settlement. This is a result that the Commonwealth views as unthinkable, despite widespread dissatisfaction with the settlement terms, especially when compared to the far superior terms negotiated by the earlier-settling states of Minnesota, Florida, Texas and Mississippi, none of which purported to interfere with or dispose of public interest litigation brought by non-governmental entities.
The fact is that the states brought this misfortune on themselves by purporting to give the tobacco companies releases that the states have no power to give - which in turn, would give the states money damages and rights to participate in matters affecting the tobacco industry to which they are not entitled. If the MSA contained a non-severable provision requiring the states to suspend the protection of the First Amendment whenever the tobacco industry is under attack, the state could hardly be heard to complain when its citizens say the price of the settlement is too high. Similarly, here, the state cannot credibly argue that the petitioners should be bound by the release simply because the tobacco industry has insisted on a forfeiture of their civil rights. One obvious solution to this dilemma is for the parties to own up to the fact that their definition of releasing parties is overreaching, settle with the governmental releasing parties, and recognize that the non-governmental organizations must be allowed their proper share of rights of participation in future discussions, negotiations, and litigation in furtherance of tobacco control.
3. The Ripeness Doctrine.
The Commonwealth and the tobacco defendants both argue that our petition does not present an actual case or controversy, because we "fail to specify any past or current legal action instituted by petitioners themselves, or even any other legal action which would be improperly effected (sic) by the MSA." In that passage from the Commonwealth's memorandum, it characterizes our case as hypothetical. But this overlooks the actual, present injury that the Petitioners will suffer when the settlement becomes effective. At that moment, the Petitioners and all the members of their class will lose most of their power to bring public interest lawsuits against the tobacco industry. This will effectively disarm the petitioners, as explained in the next paragraph.
As matters stand today, when one of the petitioners is negotiating for a constraint, be it legislative or contractual, on any aspect of the tobacco industry, the other parties to the negotiations are well aware that in the long run, the petitioner has the power to sue, a power that gives the petitioners clout to offset their relative economic weakness.
The situation resembles a dispute in a Hollywood Western, where all the disputants are packing guns. If one of the disputants is disarmed, he loses his clout and becomes a paper tiger. Similarly in our case, if the decree deprives the petitioners of their power to litigate (of if it renders the indemnified tobacco companies untouchable), it will convert them into paper tigers lacking clout in negotiations, lacking appeal to private funding agencies and philanthropic supporters, and being constrained to resort to urging the (heavily compromised) state to make any threat of coercive action. It is not too much to say that classifying the petitioners as "releasing parties" may well put them out of business - - a result the Commonwealth probably did not expect, let alone desire, when it expropriated our claims to deliver to the tobacco defendants.
4. The Petitioners Have Legally Enforceable Interests. The Commonwealth contends that the Petitioners have no more interest in this matter than the general public. This may be true in the sense that if releases created by the definition of "releasing parties" and the indemnification of the offset provisions, are effective against the Petitioners, they must necessarily be effective against the general public. The difference is that the Petitioners have an expertise, and a background of study, knowledge and experience, that the general public does not have. The Petitioners' expertise is, in fact, a public asset that should be preserved.
5. The Role Of The Attorney General.
The Commonwealth argues that intervention is unnecessary because the Petitioners' interests are already protected by the Attorney General and by the "tremendous" benefits of the settlement. This is not the place to argue the merits of the settlement. The issues here are the injury the settlement will do to the Petitioners, and the deprivation, without due process of law, of Petitioners right to litigate claims against the tobacco companies. On these issues, the Attorney General is not protecting the interests of the Petitioners; he is protecting a settlement, in the drafting of which he personally played a leading role. Our interests are undermined rather than protected by the MSA, which either takes our future claims from us completely, or indemnifies the tobacco companies against them; the MSA then exacerbates the injury by excluding us, and the public, from the category of MSA "intended beneficiaries" who might otherwise seek to enforce its mandatory provisions.
6. This is Petitioners' Only Chance to Challenge the Litigating Releasing Parties Offset Provisions of the MSA.
Defendants propose that Petitioners' concerns may better be addressed on a case-by-case basis in the future as such situations arise. That approach might work if Petitioners' only concerns were the MSA's definition of "releasing parties" and whether the Attorney General has the power to release private parties' claims against the tobacco industry. But the case-by-case approach would effectively preclude the Petitioners from questioning the states' indemnification of the tobacco companies. In future litigation, should the Petitioners succeed in getting past the Attorney General's release of their claims, Petitioners would be hard pressed to challenge the State's agreement to indemnify the tobacco defendants against any verdict the Petitioners might obtain, given that the agreement was negotiated by the state, presumably at arm's length, and approved by this Court. Our best, and perhaps only opportunity to challenge the indemnity, its inevitable harm to tobacco control activism, and its derogation of public policy, is here and now, before the MSA is finalized.
7. Petitioners' Petition Was Filed Promptly After They Learned That The Attorney General's Assurances Were Unreliable.
Petitioners Barg, Coalition for a Tobacco Free Pennsylvania, Smoke Free Pennsylvania, Godshall, and Sklaroff have been actively involved in this lawsuit since before it was filed in April 1997. See Barg, Godshall, and Sklaroff Affidavits, Appendix B, Tabs 1, 2, and 3. Petitioners' primary goal was to make sure that the ultimate agreement would not compromise or eliminate the rights of private parties to pursue public interest litigation in furtherance of tobacco control. Ibid. Until November of 1998, just before the MSA made the transition from secret to public, the Attorney General assured Petitioners that they had nothing to worry about, and that their goal would be achieved. It was only upon the publication of the previously guarded MSA provisions, when Petitioners learned that their interests had been sacrificed in favor of the tobacco defendants' desire for immunity. At that point, the petitioners knew they were harmed, and they acted promptly. 8. Conclusion.
For the foregoing reasons, Petitioners' requested relief should be granted.
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: January 6, 1999 Counsel for Intervenors
ATTACHMENT A
LIST OF INTERVENTION PETITIONERS
Robert B. Sklaroff, M.D.
Suite 130
50 E. Township Line Road
Elkins Park, PA 19027-2253
(original petition filed on 11/18/98)
William T. Godshall
SmokeFree Pennsylvania
P.O. Box 81570
Pittsburgh, PA 15217-0370
(original petition filed on 11/18/98)
Jeffrey Barg
230 Windsor Avenue
Narberth, PA 19072
(original petition filed on 11/18/98)
PennPIRG
by: David Masur
1334 Walnut Street
Philadelphia, PA 19107
(original petition filed on 12/2/98)
SmokeFree Pennsylvania
by: William T. Godshall
P.O. Box 81570
Pittsburgh, PA 15217-0370
(original petition filed on 12/2/98)
American Council on Science and Health
by: Dr. Elizabeth M. Whelan, President
1995 Broadway, 2nd Floor
New York, New York 10023-5860
(original petition filed on 12/8/98)
Citizens for Consumer Justice
by: Lauren Townsend, Executive Director
P.O. Box 28854
Philadelphia, PA 19151
(original petition filed on 12/11/98)
Coalition for a Tobacco Free Pennsylvania by: Jeffrey Barg, President
230 Windsor Avenue
Narberth, PA 19072
(original petition filed on 12/11/98)
Smoke Free Educational Services, Inc.,
by: Joseph W. Cherner, President
P.O. Box 3316
New York, New York 10008
(original petition filed on 12/11/98)
PA Chapter, American Academy of Pediatrics by: Jerold Aronson, M.D., Executive Board Member Rosemont Business Campus
Building 2, Suite 307
919 Conestoga Road
Rosemont, PA 19010
(original petition filed on 12/11/98)
Clean Air Council
by: Joseph O. Minott, Director
135 South 19th Street, Suite 300
Philadelphia, PA 19103
(original petition filed on 12/11/98)
American Association of Public Health Physicians by: Joel L. Nitzkin, M.D., M.P.H., D.P.A. JLN, MD Associates, L.L.C.
4939 Chestnut Street
New Orleans, LA 70115-2941
(New Intervention Petitioner)
Tri-County Tobacco-Free Coalition, Inc.
by: Betsy Reibling
Governor's Plaza South
2001 N. Front Street, Building 3, Suite 334 Harrisburg, PA 17102
(New Intervention Petitioner)
American Society of Addictive Medicine
by: John Slade, M.D.
78 New Street, Third Floor
New Brunswick, NJ 08901
(New Intervention Petitioner)
Coalition for Leadership, Education and Advocacy for Recovery by: Karen A. Plaven
100 Ross Street
Pittsburgh, PA 15219
(New Intervention Petitioner)
Peoples Medical Society
by: Charles B. Inlander, President
462 Walnut Street, Lower Level
Allentown, PA 18102
(New Intervention Petitioner)
APPENDIX A TO INTERVENTION PETITIONERS' MEMORANDUM IN SUPPORT OF THEIR PETITION TO INTERVENE
This Appendix contains descriptions of cases that have been brought in Pennsylvania and elsewhere which, if brought after approval of the MSA, would risk dismissal under the MSA release provisions (or under the MSA "intended beneficiary" provisions), or which would, if successful, recover not from the tobacco defendants, but from Pennsylvania's allocated funds, under the "litigating releasing parties offset" provisions of the MSA.
1. Mangini v. R.J. Reynolds Tobacco Company, et al., 875 P 2d 73 (Cal. 1994). This case was brought by a public interest plaintiff in California to enjoin the use of Joe Camel in tobacco advertising because of its effect on children. The plaintiff was successful, settling for punitive damages of $10,000,000.00 (ten million dollars) in addition to the injunctive provisions it sought. See tab 1.
2. Allegheny General Hospital, et al. v. Philip Morris, Inc., et al., Court of Common Pleas of Allegheny County, Civil Division GD No. 98-18956. This Complaint is brought on behalf of charitable, not-for-profit hospitals in Pennsylvania. It seeks to recover the unreimbursed costs of health care services to Medicaid and medically indigent patients, in connection with tobacco-related illnesses. (The hospitals have also petitioned in this action for permission to intervene, seeking declaratory relief). See tab 2.
3. Sweeney, et al. v. American Tobacco Company, et al. Court of Common Pleas for Allegheny County, No. GD 98-16226. This is a pending class action which seeks injunctive relief in the form of smoking cessation programs which would be available to the general public. It was brought on behalf of a class of individuals who became addicted to nicotine as children. See tab 3.
4. Karen McNamara, et al. v. Philip Morris Companies, Inc., Court of Common Pleas for Montgomery County No. 98-13503; removed to U.S. District Court for the Eastern the District of Pennsylvania. This class action was filed in July of 1998, seeking economic damages (for a class of Pennsylvania residents who purchased Marlboro Lights cigarettes) and declaratory and injunctive relief that would benefit the general public. The suit alleges that Philip Morris falsely claimed that Marlboro Lights contained lowered tar and nicotine in comparison to regular cigarettes, that it failed to disclose the existence and proper use of ventilation holes, and that it intentionally manipulated the tobacco used in Marlboro Lights to boost or increase its addictive propensities. The suit does not seek recovery for personal injuries attributable to the use of Marlboro Lights. See tab 4.
5. Reverend Jessie Brown, et al. v. Philip Morris, Inc., et al., U.S. District Court for the Eastern District of Pennsylvania, Civil Action No. 98-5518 (currently pending before Judge Padova). This is a race discrimination case brought under the Civil Rights Act of 1866, 42 U.S.C. '' 1981 and 1982, and other statutes, challenging the tobacco companies' discriminatory marketing of menthol cigarettes to black Americans for the purpose of intentionally promoting a product that the defendants know is defective, hazardous, and dangerous, on the basis of race. The suit also charges that the tobacco manufacturers conspired with their trade associations, and with their public relations and lobbying agents, to conceal from and to mislead and deceive black Americans regarding the evidence that use of their menthol tobacco products can cause serious and fatal diseases. See tab 5.
APPENDIX B
AFFIDAVITS OF PETITIONERS
Jeffrey Barg Tab 1
William Godshall Tab 2
Robert Sklaroff, M.D. Tab 3
Joseph Otis Minott Tab 4
Ron Masur Tab 5
ATTACHMENT B
TOBACCO CONTROL ACTIVITIES OF EACH INTERVENOR
1. 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.
2. 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.
3. Petitioner PennPIRG is a non-profit, non-partisan research and advocacy organization working in Pennsylvania on behalf of consumers and the environment.
4. Petitioner American Council on Science and Health ("ACSH") is a non-profit public health consumer advocacy group which is now celebrating its 20th anniversary. ACSH's ongoing tobacco related projects include:
(a) an evaluation of the health effects of environmental tobacco smoke;
(b) reporting on "Alcohol vs. tobacco: comparing and contrasting health effects and regulatory activity;" and
(c) researching how well women's magazines report on tobacco and health.
5. Petitioner Citizens for Consumer Justice is a Pennsylvania statewide consumer organization working on health and safety issues inside and outside the justice system. Citizens for Consumer Justice has demonstrated strong interest in taking action in furtherance of the public interest on health matters, including:
(a) filing amicus briefs in health-related litigation; and
(b) convening the Patients, Not Profits Coalition, which acted as the consumer/public interest voice in connection with the Allegheny Health System crisis in the Delaware Valley.
6. Petitioner Coalition for a Tobacco Free Pennsylvania ("The Tobacco Coalition") is a non-profit health research, education and advocacy organization composed of 26 organizational members dedicated to the promotion of a tobacco-free lifestyle among adults and youth in Pennsylvania. The Tobacco Coalition has demonstrated a strong interest in taking action in furtherance of tobacco control, including spearheading advocacy on preventing underage tobacco sales, raising tobacco taxes, discouraging investment in tobacco stocks, and ensuring a just resolution of Pennsylvania's lawsuit against the tobacco companies.
8. Petitioner PA Chapter, American Academy of Pediatrics ("Academy of Pediatrics") is a membership organization of pediatricians dedicated to providing advocacy for children on public health issues. The Academy of Pediatrics has demonstrated a strong interest in taking actions in furtherance of tobacco control, including the development and implementation of a smoking cessation program.
9. Petitioner the Clean Air Council is a tax exempt, non-profit membership corporation organized under the laws of Pennsylvania with offices at 135 South 19th Street, Suite 300, Philadelphia, PA 19103. The Council works to protect everyone's right to breathe clean air. The Clean Air Council has demonstrated a strong interest in taking action in furtherance of the public interest on matters concerning air quality, including litigation to shut down the City of Philadelphia's trash incineration facility in Roxborough, Pennsylvania, and litigation to enforce various laws and orders designed to improve the quality of the air we breathe. The Council has worked on smoking as part of its indoor air pollution program since 1983, and it is a member of the petitioner coalition for a tobacco-free Pennsylvania.
10. Petitioner SmokeFree Educational Services, Inc. ("SES") is an organization with over 100,000 advocates whose mission is to win the right to live and work in a smokefree environment, and to educate young people about the disadvantages of tobacco addiction.
11. Petitioner Tri-County Tobacco-Free Coalition, Inc. was formed by a group of concerned agencies and individuals in response to the alarming increase in the use of tobacco products by the youth of Dauphin, Cumberland, and Perry counties. The mission of the Tri-County Tobacco-Free Coalition, Inc. is to set in motion a variety of mechanisms to reverse the trend of increasing tobacco product usage among the youth in the Tri-County area.
12. Petitioner The American Association of Public Health Physicians is a membership organization which advocates on behalf of public health physicians for public health and preventative services.From: "Bill Godshall"
ATTACHMENT B
TOBACCO CONTROL ACTIVITIES OF EACH INTERVENOR
1. 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.
2. 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.
3. Petitioner PennPIRG is a non-profit, non-partisan research and advocacy organization working in Pennsylvania on behalf of consumers and the environment.
4. Petitioner American Council on Science and Health ("ACSH") is a non-profit public health consumer advocacy group which is now celebrating its 20th anniversary. ACSH's ongoing tobacco related projects include:
(a) an evaluation of the health effects of environmental tobacco smoke;
(b) reporting on "Alcohol vs. tobacco: comparing and contrasting health effects and regulatory activity;" and
(c) researching how well women's magazines report on tobacco and health.
5. Petitioner Citizens for Consumer Justice is a Pennsylvania statewide consumer organization working on health and safety issues inside and outside the justice system. Citizens for Consumer Justice has demonstrated strong interest in taking action in furtherance of the public interest on health matters, including:
(a) filing amicus briefs in health-related litigation; and
(b) convening the Patients, Not Profits Coalition, which acted as the consumer/public interest voice in connection with the Allegheny Health System crisis in the Delaware Valley.
6. Petitioner Coalition for a Tobacco Free Pennsylvania ("The Tobacco Coalition") is a non-profit health research, education and advocacy organization composed of 26 organizational members dedicated to the promotion of a tobacco-free lifestyle among adults and youth in Pennsylvania. The Tobacco Coalition has demonstrated a strong interest in taking action in furtherance of tobacco control, including spearheading advocacy on preventing underage tobacco sales, raising tobacco taxes, discouraging investment in tobacco stocks, and ensuring a just resolution of Pennsylvania's lawsuit against the tobacco companies.
8. Petitioner PA Chapter, American Academy of Pediatrics ("Academy of Pediatrics") is a membership organization of pediatricians dedicated to providing advocacy for children on public health issues. The Academy of Pediatrics has demonstrated a strong interest in taking actions in furtherance of tobacco control, including the development and implementation of a smoking cessation program.
9. Petitioner the Clean Air Council is a tax exempt, non-profit membership corporation organized under the laws of Pennsylvania with offices at 135 South 19th Street, Suite 300, Philadelphia, PA 19103. The Council works to protect everyone's right to breathe clean air. The Clean Air Council has demonstrated a strong interest in taking action in furtherance of the public interest on matters concerning air quality, including litigation to shut down the City of Philadelphia's trash incineration facility in Roxborough, Pennsylvania, and litigation to enforce various laws and orders designed to improve the quality of the air we breathe. The Council has worked on smoking as part of its indoor air pollution program since 1983, and it is a member of the petitioner coalition for a tobacco-free Pennsylvania.
10. Petitioner SmokeFree Educational Services, Inc. ("SES") is an organization with over 100,000 advocates whose mission is to win the right to live and work in a smokefree environment, and to educate young people about the disadvantages of tobacco addiction.
11. Petitioner Tri-County Tobacco-Free Coalition, Inc. was formed by a group of concerned agencies and individuals in response to the alarming increase in the use of tobacco products by the youth of Dauphin, Cumberland, and Perry counties. The mission of the Tri-County Tobacco-Free Coalition, Inc. is to set in motion a variety of mechanisms to reverse the trend of increasing tobacco product usage among the youth in the Tri-County area.
12. Petitioner The American Association of Public Health Physicians is a membership organization which advocates on behalf of public health physicians for public health and preventative services.
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