Tobacco industry lawyers met secretly with US Solicitor General Elena Kagan in an effort to avoid the government’s last-ditch attempt to extract billions of dollars from companies that illegally concealed the dangers of cigarette smoking.
Four cigarette makers that control nearly 90 percent of US retail cigarette sales have until Feb. 19 to persuade the government not to go to the Supreme Court and ask the justices to step into a landmark 10-year-old racketeering lawsuit.
In 2006, a judge ruled that the industry concealed the dangers of smoking for decades. Despite that finding, lower courts have said the government is not entitled to collect US$280 billion in past profits or US$14 billion for a national campaign to curb smoking.
As part of any effort to convince the government that it should skip a trip to the Supreme Court, the tobacco companies may have to drop plans to ask the justices to overturn the ruling that the industry engaged in racketeering.
On behalf of the industry, Washington lawyers Michael Carvin and Miguel Estrada made their pitch against seeking Supreme Court review in a meeting last month at the Justice Department with Kagan, said two Washington attorneys outside the government who are familiar with the meeting in her office.
In the meeting, Carvin and Estrada left the impression the industry might be willing to end plans to see a high court appeal of its own, if the Justice Department would do the same, said the Washington attorneys, who spoke on condition of anonymity so that they could discuss the private meeting with Kagan.
The discussion with Estrada and Carvin resulted in an internal department meeting a few days later. At this meeting, department lawyers discussed the possibility of seeking billions of dollars from the industry as part of a possible negotiated settlement of the suit, according to one of the private attorneys who learned about this second meeting from participants.
The department, the industry or both could request that the Supreme Court take the case, while at the same time asking that the case be delayed while the two sides try to work out a deal.
If the companies also agreed not to seek an appeal, they would be accepting the findings of US District Judge Gladys Kessler that they engaged in a scheme to defraud the public by falsely denying the adverse health effects of smoking, concealing evidence nicotine is addictive and lying about their manipulation of nicotine in cigarettes to create addiction. Last May, a federal appeals court upheld the findings. The companies then pledged to appeal to the Supreme Court.
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