Government Will Need to Prove at Trial Whether Tobacco Companies Likely to Engage in 'Future Misconduct'

U.S. District Judge Gladys Kessler Thursday ruled that the government will need to prove at trial whether the tobacco industry intends to engage in “future misconduct” when it comes to the marketing and sales of their products.

Philip Morris USA and other tobacco companies had asked the Court to grant summary judgment because they claimed there is no evidence upon which the Court could conclude that the defendants are likely to engage in future misconduct.

“The government is required to legally show that there is a likelihood that the companies would engage in future improper conduct. That is a burden the company believes the government cannot meet at trial,” said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.

Noting the stringent burden the defendants must carry in order to succeed on a pretrial summary judgment motion, Judge Kessler decided she would allow the government to present its case at trial rather than striking the claim at this stage of the lawsuit.

Judge Kessler, in her order, concluded “the essence of Defendants’ Motion is their claim that the Government’s evidence is insufficient to meet its burden. To answer that question, the Court must hear and weigh the evidence, which is properly done at trial. Thus the issue presented in the Motion is not appropriate for summary judgment.”

“There is no question that Philip Morris USA and other tobacco companies have dramatically changed the way their products are marketed,” said Ohlemeyer.

“While many of the changes came as a result of the our compliance with the Master Settlement Agreement (MSA) with the state attorneys general, it is significant that in many instances, Philip Morris USA has voluntarily gone even further than that which is required by the agreement."

Ohlemeyer also said that, as a result of the MSA, “the tobacco industry operates under the watchful eye of the nation’s top 50 law enforcement officers – the state attorneys general – who actively and aggressively monitor tobacco industry conduct.

In 2000, the Court rejected the government’s claims for medical cost recovery. The only claims remaining in the government’s case were brought under the Racketeer Influenced and Corrupt Organizations Act (RICO). To be successful on its RICO claims, the government must prove that it is reasonably likely that the defendants will commit future RICO violations.

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