Carvin’s Charges
October 16, 2008 1:23 am by Gene BorioI’ll have to post a precis of the argument in chunks. For now, I’ll try to quickly recap some of the industry’s position, as expressed by Michael Carvin in the first 1/2 hour of argument. This is by no means a complete recap of the issues. Yet, the wire services just don’t have room for even this small amount of detail.
Jones Day’s Michael Carvin is a Red Bull of a man, with a muscular build and florid face. His head is a block hewn from oak, with a large expanse of bald pate fringed with yellowish-gray hair. He looked ready willing and able to gore and stomp. And verbally, that’s just what he did. He pounded away and pounded away. With instant animal reflexes he trampled under hoof any judge’s informed objections, virtually ensconcing by brute repetitive force the industry’s skewed view of Judge Kessler’s 1700 page opinion.
And poor Judge Kessler’s massive opinion is fertile ground for the industry’s traditional defenses: it’s large, it’s unwieldy, and best of all–no one’s read it. Let alone knows it like a schoolboy’s catechism (that includes, seemingly, Mark Stern, DOJ’s aw-shucks lawyer). But the industry–and Carvin–do. The Kessler opinion is a document so vast you could merrily cut away at it and cut away at it until your vivisection turns into a dissection. Carvin picked, characterized, cleverly skewed and then rebutted selected aspects of the decision. The tactics Carvin used often reminded me of the industry’s historical defenses against the medical literature on primary smoking.
For one historical parallel, look at how in 1954 the industry mischaracterized the evidence on smoking and health by heavily promoting W.C. Hueper’s contrarian view and deploying his opinion (17 pages accompanied by 2 pages of highlights and a cover letter) to hundreds of newspapers, wire services, and writers. In some newspaper accounts, Hueper’s view got more coverage than the groundbreaking Wynder and Hammond studies. You can understand how even knowledgeable people would have had a difficult job setting the Hueper view back down to the minority position it actually held.
The industry is brilliant at setting up a straw man to rebut. Their technical skill is amazing. Their straw men look absolutely lifelike. To get some idea of how the industry can conceptually warp a document like Judge Kessler’s decision, think back to December, 2005, when David Bernick tried to take charge of Addison Yeaman’s 1963 memo (”We are, then, in the business of selling nicotine, an addictive drug”). And that document is only a handful of plainly incriminating sentences. Bernick’s astoundingly serpentine characterization may have prevailed, had it not been rebutted by the brilliant and supremely knowledgeable Jack Henningfield, with a major assist from DOJ’s Andrew Goldfarb (Mr. Goldfarb was actually in the audience today; would that he had been at the podium). Lacking these defenders, could any ordinary mortal judge out-argue or see through Mr. Bernick’s powerful version? Not likely.
As another example, you can take Defense witness Dr. Edwin L. Bradley’s testimony that all 1200 pages of Monograph 13 boils down basically to two incredibly tiny cells in a table in Chapter 4, and that if those are off, for whatever reason, the entire monograph must be tossed.
But in re-scanning Kessler’s decision, you see it is so much more than the industry’s limited characterizations.
CONNECTING THE DOTS
Carvin said 2 or 3 times that Judge Kessler had not connected any specific CEO to any specific act of RICO violation. In all those 1700 pages, he claimed, “She never connected the dots!”
“Not Proven!” the industry claimed years ago.
“Not connected!” Carvin claimed Tuesday.
It’s the old impossible burden of proof argument. And what if Judge Kessler had painstakingly, laboriously “connected the dots,” pointing out how each exact incident corresponded with an exact citation of internal knowledge at the time? If each incident were spelled out, the opinion would have been 3000 pages, or more–and even more intimidating and inaccessible to the public.
In all his arguments, Carvin pounded away, beating the truth into submission, beating the judges into accepting his view of Kessler’s judgement: that it is an incompetent shambles, utterly bereft of law or logic, a travesty of justice. What a horrendous travesty should his view prevail.
Some of the arguments that I’ll relate here will seem silly to you, but they were powerful and persuasive in Carvin’s delivery.
He re-argued many of the basic tenets of the case, and most issues were pretty well hashed out in the trial. Was he hoping the opinion was so big that judges wouldn’t find the relevant sections they needed to enlighten themselves about his arguments?
He may well have succeeded in beating them into submission. Certainly, Judge Tatel, the lone dissenter of the 2005 interlocutory appeal on “disgorgement,” and the only hope for convincing the new Judge Brown, looked terribly unhappy at the end.
SPECIFIC vs. CORPORATE INTENT
Carvin got 25 minutes at the beginning.
He claimed that SPECIFIC INTENT TO DEFRAUD was lacking. Kessler had used a CORPORATE INTENT MODEL. Kessler “agreed with US,” he claimed, and used collective knowledge to claim fraud.
Every example of Specific Intent is actually Corporate Intent, he said. “The issue was never joined at trial.”
(The Joint Defense reads,
“A plaintiff will almost always be able to splice together statements by company personnel to create a conflict between the internal statements of one employee and the public statements of another, from which a court could infer a ‘collective intent’ to defraud. But as the Seventh Circuit recently recognized, ‘that one or more subordinates reached one or another conclusion does not demonstrate that ‘[a corporation] thought’ anything in particular.’ Because there is no finding or proof that any individual acted with specific intent to defraud, the district court had no basis to impute any ‘indictable’ acts of mail or wire fraud to any defendant to satisfy the requirements under § 1962(c).”)
Judge Tatel engaged Carvin at first, saying, “I see your point, but . . .” He pointed out that Kessler’s Findings of Fact are replete w examples of each Defendants’ and the TI’s actions which, considering their internal knowledge, were at the least willfully and recklessly untrue.
One example Judge Tatel quoted was an RJR statement that it is not known if cigarettes cause cancer.
Yes-but, Carvin said, Kessler never connected the dots; she even disavows the NEED to connect the dots. She cites not one example where anybody said, “We DO think ETS causes disease.” The DOJ decided, we’re going to impute to the CEOs the opinions of employees they have no control over!
Judge Brown, in one of her few interjections, asked: How do you support the idea that you can’t impute knowledge of those opinions?
Carvin presented an example: Employee A disagrees with Employee B, or doesn’t know what Employee B knows. So how can you call Employee A a liar?
On addiction, Sentelle said, the CEOs did have the necessary knowledge.
Carvin claimed that if indeed they did, all Kessler had to do is Connect the Dots. She imputed or assumed CEOs had knowledge–but she had to find and prove it.
ADDICTION AS A SEMANTIC DEBATE
Addiction was a major issue for Carvin.
The Tobacco Institute knew cigarettes were addictive. Why? he asked. Because some unknown employees believed it?
Tatel said that senior corporate leaders knew.
But no one thought smoking was addictive, Carvin said–even the Surgeon General didn’t think so until 1988.
Kessler did not deal with facts, Carvin claimed, but SEMANTIC LABELS like addiction. She turned a SEMANTIC DEBATE into fraud.
Carvin characterized addiction as a “semantic minefield.”
The “gummy bears” comment of a corporate CEO was mentioned, and dismissed by Carvin as something from a deposition, and not a public statement. But soon it was accepted by the judges as something that was in line with other public statements, such as comparing cigarette dependence to regular jogging or tennis.
The Surgeon General changed the term in 1988. The tobacco companies were “clear as a bell,” Carvin said; they acknowledged that quitting could make you restless, irratible.
Just because you disagree with a label–the most pejoritive label they can find–”you’re going to put people in jail?” (Carvin mentioned jail several times, unchallenged.)
It’s a basic First Amendment issue, Carvin claimes. “a company doesn’t have to accept the government’s view of the world.”
(Kessler deals with First Amendment issues, including Noerr-Pennington, in the section, “The First Amendment Does Not Protect Defendants’ False and Misleading Public Statements.” “[T]he First Amendment does not shield fraud.”)
The point was made that CEOs knew cigarettes were addictive while their companies’ public statements denied it.
It’s immaterial CEOS knew or not, Carvin claimed. Why do we think they know? Just because of some statement “lurking in files” somewhere?
MATERIALITY
Does Kessler present any evidence any smoker ever paid attention to the company statements? Carvin asked. No. For materiality, you need evidence that some reasonable person heard it and believed it.
There is no evidence anyone paid any attention to the companies on ETS or addiction, or that any ratiional person even cares if the label is addiction or withdrawal. It’s an “honest opinion,” he said, and you’re going to take a semantic debate and turn an entire industry into the Gambino family, racketeers and throw people in jail??