A blizzard of briefs went to the Supreme Court Friday on all sides of a long-running dispute between the federal government and Big Tobacco over the penalties cigarette companies must pay under the federal RICO law for decades of deceiving the public over the dangers of smoking.
U.S. Solicitor General Elena Kagan filed a brief in U.S. v. Philip Morris stating the government is entitled to recover nearly $300 billion from the industry, and arguing that the U.S. Court of Appeals for the D.C. Circuit in its ruling last May "erroneously" limited what the government could recover under the Racketeer Influenced and Corrupt Organizations Act. The Tobacco-Free Kids Action Fund, represented by Howard Crystal of Meyer Glitzenstein & Crystal in D.C. also filed a brief seeking expansion of remedies, arguing that "the magnitude of the fraud at issue here and its devastating consequences" justified review. The appeals court, while limiting disgorgement of billions of dollars of company funds as a penalty, did find RICO violations and approved other remedies including limits on tobacco marketing.
On the other side, several tobacco companies challenged the appeals court finding of even limited liability under RICO, also asserting their First Amendment rights were violated. Filing on behalf of Philip Morris USA was Miguel Estrada of Gibson, Dunn & Crutcher in D.C.; Guy Struve of Davis Polk & Wardwell in New York filed a separate brief for Altria Group Inc., the parent company of Philip Morris; Michael Carvin of Jones Day in D.C. was on the brief for R.J. Reyonolds Tobacco; and Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner and Sauber in D.C. filed for British American Tobacco, Ltd. Untereiner's brief argues that British American's foreign conduct is not covered by RICO. Other briefs were expected before the end of the day in the case. (Hat tip to SCOTUSblog.)