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Scorecard – State Specific Finality
Robert B. Sklaroff, MD
To: File
I have attempted to gain an update regarding the status of all pending MSA-related litigation. I called the NAAG [Mary Schlafer (202-326-6004)] and was advised to contact each AG. The following constitutes only my understanding of what I was told (sans value judgements).
The six categories of groups attempting to obtain, prospectively, a “piece of the MSA pie” are smokers, counties, hospitals, Medicaid recipients, Native Americans and lawyers. To the best of my knowledge, I am the only individual attempting to alter any phraseology in the MSA. The discussion from Mr. Eckhard yielded a key-concept that may affect other states' status; state-level cases filed in courts that didn't have jurisdiction over the initial Medicaid cases aren't viewed as affecting the achievement of SSF (including the federal case in California filed by Native Americans) and this may explain the perspective of the AG in Wisconsin. (This concept may also be applicable to litigation in Florida, Minnesota and Colorado.) Nevertheless, none of the information cited herein has been gleaned from court documents; thus, a complete appreciation of each state's status can best be acquired through discussions with the intervenors and x-examination of both parties based upon the recognized database. “Exhibit A” from the MSA lists “State Allocation Percentages” from which one must calculate the closeness of exceeding the “80/80” threshold. First, 39 (80+% of 46) states must agree, but the present total is 37 (perhaps 38/39, if South Carolina and/or Wisconsin are excluded). Second, the total of the following (remaining) %-ages must be lower than “20” to gain SSF.
Despite dire statements from the settling parties, it would appear that issues principally related to the division of the monies will be settle-able without affecting the substance of the MSA. Thus, any who abhor the prospect of an immunized tobacco industry should flock to help me. I received the following e-mail in response to my first memo:
> According to Shook, Hardy & Bacon...as of July 29, 1999... MSA Notice Issues: Other press reports had included Rhode Island and the NAAG had cited South Carolina.
Honorable Bill Pryor
Honorable Janet Napolitano
Honorable Mark Pryor
Honorable Bill Lockyer Contrasting data related to these issues may be deduced from these communications: #1 - California Nears State Specific Finality For Tobacco Settlement A California state court rejected an appeal by a pro-tobacco group to intervene in the state's tobacco settlement process, moving California a step closer to state specific finality. Smokers for Fairness attempted to delay state finality by involving themselves in suits that had been filed against the tobacco companies prior to the settlement. The San Diego Superior Court denied this attempt last October, and on Friday, the state appeals court agreed, ruling that the group failed to complete procedural steps necessary for appeal. San Francisco Attorney Louise Renne, who filed the first local suit against the tobacco companies in 1996, said, "With this decision, there should no longer be any excuse for the tobacco companies to dispute the finality of the settlement in California." “Ruling Clears Way For California Tobacco Payments,” Reuters, August 11, 1999. #2 – Donald W. Ricketts, Esq. [Phone/Fax: (661) 250-3091.] [lawcom@csiway.com] Nice to hear from you again. I have been following your efforts and, if I understand the situation, you are now in the appellate court. Last Friday, the California Court of Appeal dismissed the appeal from the order of the trial court denying us the right to intervene in the AG's case (which was filed before the settlement was announced). We will seek further appellate review. This case has been holding up state specific finality in California and will continue to do so. We also hope to file in NY before the week is out. We believe that without state specific finality in Calif. & NY (& Penn.) the agreement cannot be effective. There will be a hearing in the case we filed in United States District Court in San Francisco on the 27th. The number of cases filed on anti-trust grounds is multiplying and these cases, I believe, hold the most promise for breaking (and thus re-negotiating) the settlement. I continue to believe that a cooperative effort among all those who believe the settlement needs to be re-written would be helpful. There is an attempt to block the implementing legislation in those states that have not yet passed it, but that is not getting anywhere. Do you have a good “scorecard” on the various suits? [Donald W. Ricketts, Esquire, 28855 Kenroy Avenue, Santa Clarita, CA 91351]
Honorable Jeremiah W. (Jay) Nixon
Honorable Peter Verniero
Honorable D. Michael Fisher
Honorable Sheldon Whitehouse
Honorable Charlie Condon
Honorable Paul Summers
Honorable Mark L. Earley
Honorable James E. Doyle
Direct links to each AG may be achieved by invoking the WWW-sites that are listed here: http://www.naag.org/aglinks.htm. Of interest, for example, is the following information from the Rhode Island AG's Web Site: [http://www.riag.state.ri.us/Press/May99/0510199901.htm]: “A $15,000 fine was paid to the Department of Attorney General by United States Tobacco Company (UST). The fine is part of the settlement with the AG for making misleading claims about the lack of scientific facts to establish smokeless tobacco to be a cause of oral cancer. The comments, a violation of the Consent Decree and Final Judgement between the State of Rhode Island and the Tobacco Companies, were made by a UST spokesperson to the Providence Journal in an article published April 7, 1999.” Nevertheless, having surfed-around, I find that none of them provide access to documents that have been filed and formal releases that have been court-approved. They all provide e-mail, and this approach has been adopted to acquire updates to supplement the above database. [I have sent prior copies of this memo to those AG's whose e-mail addresses appear herein.]
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