Arnold & Porter partner David Eggert, representing Philip Morris on appeal in a complex civil RICO case that is set for oral argument today, raised this point in a brief: the federal district judge who sided with the government in 2006 in bringing sanctions against Big Tobacco copied government language—right down to typographical errors.
U.S. District Judge Gladys Kessler’s 1,653-page ruling, Eggert wrote in an appellate brief, “reproduced large sections of the government’s proposed findings verbatim, complete with the government’s typographical errors. Indeed, over 80 percent of the court’s findings were simply copied from the government’s proposed findings.”
Arnold & Porter lawyers ran Kessler’s landmark decision through a program called “WCopyfind,” plagiarism-detecting software distributed for free by a physics professor at the University of Virginia. The program, found at the “Plagiarism Resource Site,” detects shared text between documents. Eggert noted two typographical errors in a footnote. “The district court’s word-for-word reproduction of the government’s proposed findings led to serious deficiencies that the court itself acknowledged,” Eggert wrote.
Whether the point will be raised this morning when the U.S. Court of Appeals for the D.C. Circuit takes up argument in the closely-watched case remains unknown. Tobacco companies are challenging Kessler’s finding that a conspiracy existed for decades to deceive the public about the dangers of smoking. The Justice Department also appealed, seeking a tougher sanctions.
Gibson, Dunn & Crutcher partner Theodore Olson said in an amicus brief for the U.S. Chamber of Commerce that the judge’s opinion opened the door to the unwarranted expansion of RICO prosecution against corporations. The American Lung Association and the Campaign for Tobacco-Free Kids are among a host of groups that joined with the Justice Department in seeking more stringent penalties against tobacco companies in the litigation.
Jones Day partner Michael Carvin and Gibson Dunn partner Miguel Estrada are arguing for Philip Morris, which is now known as Altria Group. Justice Department civil division attorney Mark Stern is set to argue the case for the government. Chief Judge David Sentelle, sitting with Judges David Tatel and Janice Rogers Brown, will hear argument this morning.
Kessler ordered the tobacco industry to stop using "low tar" and "light" descriptions in marketing cigarettes. But the judge rejected the government request for $280 billion in damages through disgorgement. When a piece of the tobacco litigation came to the D.C. Circuit on appeal, a panel—including Sentelle and Tatel—ruled that disgorgement is not a remedy in civil RICO cases.