Contains outlined analysis of events surrounding the Cipollone litigation. Offers overview and varying opinions concerning preemption issue. Explores the "Federal impact of Cipollone" using background, substance, and observation from the Abrams letter. Discusses Dingell letter and delves into elements of Judge Sarokin's opinion in the Haines case. Concludes Sarokin is biased and that consideration of a congressional inquiry based on his opinion "is premature before Third Circuit rules." Includes margin notes. Duplicates Bates 2026080786.
Surgeon General's report
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i. Issue in case
a. Does preemption cover tort claims?
b. If so, to what extent?
Cigarette companies consider decision a
win because --
Court accepted proposition that
preemption extends to tort claims
Court held preempted the easiest
claims for plaintiffs to pursue
More of a victory for the industry than
Not a "red" light for plaintiffs
but not a "green" light either, as
the anti's suggest
A "yellow light" that lets plain-
tiffs proceed, but on claims that
are the most difficult to win
Wall Street is sanguine; Pertschuk is
Court accepted basic proposition that pre-
emption extends to tort claims (though it did
not go as far as some lower courts)•
At one extreme, Blackmun, Kennedy,
Sourer -- No preemption of common
law claims at all.
At other extreme, Scalia and Thomas
-- petitioner's common law claims
generally were preempted.
c. In the middle, a Stevens opinion.
Majority portion -- No
preemption of common law
claims under 1965 Act.
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Plurality portion -- Some
preemption of common law
claims under the 1969 Act.
Claims easiest for plaintiffs to
pursue -- those attacking cigarette
advertising as inducing people to
smoke -- were held to be preempted.
Failure to warn in advertising
Neutralization of warning via
advertising and promotion
Claims more difficult for
plaintiffs to pursue -- those
req~iring proof of intentional
wrongdoing -- were held not to be
(i) Breach of express warranty
(2) Fraudulent misrepresentation
(3) Conspiracy to conceal or
misrepresent material facts
Stevens opinion, neither clear nor
consistent, will --
Generate extended disputes over its
meaning and efforts to present pre-
empted claims as nonpreempted ones.
Drive antis back to the drawing
boa~:d to devise new litigation
strategies (Cordova and BroWn}.
c. Not produce a flood of new cases.
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II. FEDERAL IMPACT OF CIPOLLONE -- THE ABRAMS LETTER
Court's decision seems less likely to
generate pressure to repeal preemption
than a decision immunizing the industry
completely would have.
Abrams letter shows that the anti's will
attempt none the less to use the pro-
preemption aspects of the decision to
promote repeal of preemption.
This, however, involves attacking us
where we're strongest -- the advertising
issue, where we have allies and the
B. The Abrams letter
Lists 26 other AG's as signatories,
but some may not have approved.
Genesis uncertain -- Danforth to
Abrams? Staff to staff?
Professed frustration with federal
"inactivity" on Joe Camel
Drafted and circulated before
Clpollone, original focus, was
claimed inabillty of AG's to take
action against Joe Camel.
Revised post-Cipollon~, focus now
seems to be AG's inability to
attack "implied claims" in general,
including "image advertising," as
well as "advertising to youth."
The AG's attack $ 1334(b) as
limiting their traditional
powers re "false, deceptive or
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But the AGs do not claim that
they are precluded from
The AG's instead seek power to
ensure that cigarette com-
panies do not "advertise to
youth" or "fail to inform" or
"play down" health risks.
Code for content-control,
labeling requirements a
la various Synar bills
The AG's also want states to
be free to prohibit cigarette
advertisements near schools
and other centers of youth
Code for billboard
placement restrictions a
la recent Kennedy bills
The AG's claim that the
cigarette companies enjoy
unique protection, but it's
the AG's who want to treat
cigarette advertising uniquely
-- as inherently deceptive and
Repeal of preemption would
create the conditions for
state and local action banning
cigarette advertising, in
violation of the First
Amendment and long-standing
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III. THE DINGELL LETTER
Calls to TI and C&B from Sheila Kaplan
of Legal Times
2. According to Kaplan --
Anti's preparing letter to Dingell
requesting investigation based
(evidently) on Sarokin opinion in
Basic claim is that industry
perpetrated fraud on Congress with"
respsct to smoking and health via
CTR~and other industry wltnesses
As of Friday, Kaplan said she had
not .seen letter, just "bits and
B. Sarokin opinion
Judge Sarokin issued a widely publicized
opinion in February in the Haines case.
Issue is whether plaintiff may have
access to documents reflecting certain
communications by and among cigarette
company counsel and their clients.
Under "crime-fraud" exception to the
attorney-client privilege, lawyer
communications are not protected from
disclosure if the work reflected was
performed in furtherance of a crime or
Defendants assert attorney-client
privilege while plaintiff asserts crime-
Magistrate ruled for defendants,
holding that privilege protects
documents from disclosure
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Sarokin overruled the magistrate,
holding that "crime-fraud"
exception overcame claim of
Defendants are seeking relief from
(1) Briefs have been filed
~ (2) Disposition possible in August
Sarokin asserted that there's evidence
that the cigarette industry has perpe-
trated a "public relations fraud," to
Industry was aware of the risks of
smoking and concerned about impact
on cigarette sales of public
Industry sought tO discredit or
neul:ralize adverse information by
establishing a fake "independent"
research organization called CTR to
examine risks of smoking and report
to ~:he public
Industry diverted damning research
from Scientific Advisory Board
(SAB) grant program into "secret"
special research projects and
a11owed only positive research to
eme:rge, thereby deceiving publlc
What is the a]~parent hook for a Congressional
Sarokin ~tated that one purpose of the
Special 19rojects research was "to
develop evidence supporting defendants'
position,s in existing and anticipated
litigation and Congressional hearings"
(slip op. 3).
A 1978 memorandum, quoted in Sarokin's
opinion, purportedly states that "CTR
has provided spokesmen for the industry
at Congresslonal hearings. The monies
spent on CTR provides a base for
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introduction of witnesses" (slip op.
Request to Dingell clearly premature in
view of Third Circuit proceeding.
2. The documents don't suggest, much less
show, any wrongdoing. The basic theory
has been aired before and was rejected
by the ~[pollone jury.
We can't discuss the documents
themselw~s without compromising our
claim of privilege.
We can, however, explain why plaintiff's
fraud claim is completely unfounded. It
rests on the basic mistaken notions that
the Special Projects research was
"secret" and that defendants mis- ~9
represented the independence~
a. The "secret research~urportedly
concealed by wroj~ul claims of
privilege was~t secret. The
research r~s~ults were produced to
plaintiff/ Researchers were free
to and did publish results of
~ research. No attempt to conceal
the research. No evidence of
Beginning in 1954, CTR members
provided funding for grant
program administered by
Beginning in 1966, CTR members
also began to fund a separate
research program known as
"Special Projects," to help
defense of litigation
anticipated by company lawyers
in the wake of the 1964
Surgeon General's report and
hearings leading to the 1965
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There was no diversion of research
from SAB to Special Projects, and
CTR special projects were not
secret or hidden behind claims of
What accsunts for Sarokin's view of the
Sarokin clearly hostile to
Media-friendly rhetoric of opinion
shows he's prejudged the case.
Similar tactic in Cipollone on
motion for directed verdict.
In latest opinion, quotes from
privileged documents, destroying
Went beyond record, relying on
(i) Different parties
(2) No notice to defendants
(3) Jury found no fraud
If letter indeed says that Sarokin's opinion
provides basis for congressional inquiry, answer is
that this is simply morel harassment of the industry --
old wine in new bottles. Sarokin is biased, Cipollone
jury rejected his view of the evidence before, and in
any event consideration of an inquiry is premature
before Third Circuit rules.