Wednesday, October 15, 2008
Mike Scarcella has an article today in the Legal Times that provides the latest report on Big Tobacco's oral argument before the D.C. Circuit. Here's an excerpt:
Sentelle and Tatel -- who dominated the nearly three hours worth of argument, held in the court's ceremonial courtroom -- questioned whether Kessler and the government sufficiently and clearly identified the acts that make up a pattern of racketeering activity. Sentelle explored the extent to which a corporation, beyond any individual employee, can be found to have a specific intent to defraud.
"They had to turn our entire industry into something like the Gambino family," argued Jones Day partner Michael Carvin, who represented Philip Morris with Gibson, Dunn & Crutcher partner Miguel Estrada. RICO laws, established in 1970 to take on the mob, are commonly used in the criminal arena.
In her decision, which followed a nine-month bench trial, Kessler ordered the tobacco industry to stop using descriptions such as "light" and "low-tar" on cigarette boxes. The judge also issued a permanent injunction. "It places the entire conduct of a corporation's business at the peril of a summons or contempt," Estrada argued.