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Number of court orders issued to date in United States v. Philip Morris Inc. et al.: 509. Number of pages of documents exchanged in discovery: 40 million. Potential sum at stake: $289 billion. By any measure, the U.S. Department of Justice’s suit against the tobacco industry is a mammoth piece of litigation. With a bench trial scheduled to begin September 13 before Judge Gladys Kessler of the U.S. district court in D.C., the challenges posed by the immense size and scope of the case are becoming increasingly evident. For example, government attorneys recently stated their intention to submit 72,525 evidentiary exhibits totaling more than 1 million pages. Tobacco industry lawyers � who admittedly would prefer a whittled-down list from which they might glean the government’s trial strategy � quickly pointed out the impact of such a massive filing. “It would place an enormous � indeed infeasible � burden on the court to provide even a cursory review of such evidence,” the defendants stated in an emergency motion. “If the court only gave each page no more than 30 seconds of consideration, it would take approximately 833 ten-hour working days to review the paper just once.” In a February 26 pleading, the government defended its list: “The exhibits designated by the United States are a reflection of the magnitude of the defendants’ conduct, the complexity of the case, and the number of contested facts.” On March 8 Kessler ordered the government to come back with a trimmed and prioritized exhibit list by May 1. Justice Department spokesman Charles Miller declined to comment. The two top Justice lawyers on the tobacco case did not respond to interview requests. After George Bush won the 2000 presidential election, many observers predicted that the new administration would quietly settle or even drop its controversial case against the tobacco industry. Instead, both sides have moved methodically toward trial. According to several lawyers involved in the tobacco litigation, Kessler has taken a hands-on approach to managing the unwieldy case, forcing lawyers to stay on track through the long discovery phase. “The judge got involved early on and entered a number of case management orders that set out a schedule for what was going to happen and in what period of time,” says William Ohlemeyer, vice president and associate GC of Altria Group, Inc., formerly Philip Morris Cos. Inc. “This is a case that could have gotten bogged down pretty quickly. Instead, it has proceeded on a very strict schedule that has been designed to make the parties move forward.” Recent rulings and a rigorous pretrial calendar suggest that Kessler intends to demand the same intense focus during the trial, which may last more than six months. Kessler has ordered both sides to file trial outlines and proposed findings of fact before the start of trial and will likely set time limits for each side to present its case in court. She has also provided that witnesses’ direct testimony be presented in written question-and-answer format, rather than live. A similar approach was used by D.C. federal trial judge Colleen Kollar-Kotelly in the second phase of the Microsoft Corporation antitrust trial. “As far as the court is concerned, written directs save time,” says Altria lawyer Dan Webb, a partner in the Chicago office of Winston & Strawn. “It forces lawyers to perfect direct examination earlier and get it in written form.” Webb serves as co�lead trial counsel for Altria and Philip Morris USA Inc., clients he has represented since 1997. The defense team represents a virtual “who’s who” of the country’s products liability litigators, including Paul, Weiss, Rifkind, Wharton & Garrison partner Theodore Wells, Jr., representing Altria and Philip Morris USA; Jones Day partners Robert McDermott and Robert Weber for the R.J. Reynolds Tobacco Co.; Kirkland & Ellis partner David Bernick, on behalf of the Brown & Williamson Tobacco Corporation; and Thompson Coburn partner J. William Newbold, representing the Lorillard Tobacco Company. “It is likely that you will see more lawyers coming in and out of the courtroom than you would with a jury trial, where there is a need to develop a relationship with jurors,” says Jones Day partner Jonathan Redgrave, who coordinates filings from the joint defendants’ legal team. “In a bench trial, the judge . . . understands why different people examine different witnesses.” In total, the court record refers to more than 140 lawyers from roughly 30 law firms working for the nine defendants. Altria alone has a team of about 50 outside lawyers, primarily from the firms of Arnold & Porter, Hunton & Williams, and Winston & Strawn. The lineup on the other side is impressive too. Justice spokesman Miller says that the department has approximately 40 lawyers and support staff working on the case, which has cost the government about $100 million so far. “We certainly understood it was a very large undertaking,” says Zuckerman Spaeder partner William Schultz, who oversaw the Justice tobacco case early on as deputy assistant attorney general in the civil division. “When you take on the tobacco industry, it is one of the few times that defendants have significantly more resources than the U.S. government to devote to the case.” Though vast, the case is substantially narrower than the complaint filed by the Justice team in September 1999. In June 2000 Kessler dismissed claims seeking to recover smoking-related Medicare and Medicaid costs. The government’s sole remaining claim alleges that the tobacco industry engaged in an illegal conspiracy to defraud the American public in violation of the Racketeer-Influenced and Corrupt Organizations act, or RICO, and seeks $289 billion in ill-gotten profits. In March, Kessler denied the industry’s motion for summary judgment, rejecting its argument that the Department of Justice was trying to regulate the cigarette industry and had violated the separation of powers doctrine. Kessler found the department was “not engaging in policy making” but was trying to enforce the RICO act, adding that Congress “explicitly authorized the attorney general to bring RICO suits such as this one.” Though the RICO approach is novel, the underlying issues look much like those confronted by tobacco industry lawyers in many suits brought by consumers, state attorneys general, and labor unions. In terms of sheer magnitude, however, lawyers for the defense team say the federal lawsuit is unprecedented. “I’ve tried some awful big cases in my career,” says Webb, who previously represented Altria and Philip Morris in lawsuits brought in Florida, Washington State, and Texas. “It does not get any more enormous than this.” Webb also served as lead trial counsel for Microsoft before Judge Kollar-Kotelly. At the conclusion of that case, the court docket listed approximately 800 entries. The docket in the tobacco case, still months from trial, already contains more than 3,000 filings, including more than 500 court orders from Kessler. Special master Richard Levie, a retired D.C. superior court judge, has issued another 150 reports and recommendations since his appointment in December 2000. Overall, 301 depositions totaling more than 2,000 hours have been taken by both sides. More than 45 expert witnesses are expected to testify at trial, and conservative estimates place the total number of witnesses to be called to testify somewhere above 200. Kessler seems determined to keep the immense case moving toward trial. In a 2002 scheduling order she wrote: “The public interest demands that cases of such significance not drag on for years and years and that they come to closure in a time-honored fashion: a public trial where the positions of both sides can be tested in the glare of cross-examination and public scrutiny.” A version of this story originally appeared in Legal Times, a sibling publiication of Corporate Counsel. Associated Press reports contributed to this story.

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