October 15, 2008
D.C. Circuit Critical of RICO Expansion
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.
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