Opposition Brief — Oregon Laborers-Employers Health & Welfare Fund v. Philip Morris, Inc.

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Nos. 99-545, o¥o 9 -7 y Supreme Court, U.S.

IN THE voy? 3999 |

Supreme Court of the ited. States

STEAMFITTERS LOCAL UNION NO. 420 WELFARE FUND, ET AL.,

Petitioners,

a | on

PHILIP MORRIS, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT (99-545)

<9 AED EE

OREGON LABORERS-EMPLOYERS HEALTH & WELFARE FUND, ET AL.,

Petitioners,

—Y

PHILIP MORRIS, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT (99-642)

(Caption continued on inside front cover)

BRIEF OF RESPONDENTS IN OPPOSITION

David S. Eggert Herbert M. Wachtell*

James Rosenthal Peter C. Hein

ARNOLD & PORTER Stephen R. Blacklocks

555 Twelfth Street, N.W. WACHTELL, LIPTON, ROSEN & KATZ

Washington, D.C. 20004-1202 51 West 52nd Street

(202) 942-5000 New York, New York 10019

(212) 403-1000

Attorneys for Respondent Philip Morris Incorporated

* Counsel of Record

(Counsel for other Respondents listed on reverse side of cover)

November 23, 1999

_

oa

LABORERS LOCAL 17 HEALTH AND BENEFIT FUND, ET AL.,

Petitioners,

een,

PHILIP MORRIS, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT (99-791)

Robert H. Klonoff

Paul S. Ryerson

JONES, DAY, REAVIS & POGUE

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Attorneys for Respondent

R.J. Reynolds Tobacco Company

Peter J. Busch

Henry Joseph Escher III

HOWARD, RICE, NEMEROVSKI,

CANADY, FALK & RABKIN

Three Embarcadero Center, 7th Floor

San Francisco, California 94111

(415) 434-1600

Attorneys for Respondent

R.J. Reynolds Tobacco Company

in 99-642

Kenneth N. Bass

Edward W. Warren

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 879-5000

Attorneys for Respondent

Brown & Williamson Tobacco

Corporation (including as

successor by merger to

Respondent The American

Tobacco Company, Inc.)

Jeffrey S. Nelson

Joseph A. Lanahan

SHOOK, HARDY & BACON L.L.P.

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

(816) 474-6550

Attorneys for Respondent

Lorillard Tobacco Company

Peter J. McKenna

Eric S. Sarner

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

919 Third Avenue

New York, New York 10022

(212) 735-3000

Attorneys for Respondent

United States Tobacco Company

Steven Klugman

Bruce G. Merritt

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

(212) 909-6000

Attorneys for Respondent

The Council for Tobacco

Research — U.S.A., Inc.

Howard M. Klein

William J. O’Brien

CONRAD O’BRIEN GELLMAN

& ROHN, P.C.

Sixteenth Floor

1515 Market Street

Philadelphia, Pennsylvania 19102-1916

(215) 864-9600

Attorneys for Respondent

The Tobacco Institute, Inc.

Wilbur L. Kipnes

SCHNADER HARRISON SEGAL

& LEWIS LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103-7286

(215) 751-2336

Attorneys for Respondent

Smokeless Tobacco Council, Inc.,

in 99-545

Barry S. Schaevitz

JACOB, MEDINGER & FINNEGAN, LLP

1270 Avenue of the Americas, 31st Floor

New York, New York 10020

(212) 332-7700

Attorneys for Respondent

Smokeless Tobacco Council, Inc.,

in 99-79]

Bruce M. Ginsberg

Marc Rachman

DAVIS & GILBERT

1740 Broadway

New York, New York 10019

(212) 468-4800

Attorneys for Respondent

Hill & Knowlton, Inc.

Jay R. Henneberry

Susan St. Denis

CHADBOURNE & PARKE, LLP

601 South Figueroa Street

Los Angeles, California 90017-3706

(213) 892-1000

Attorneys for Respondent

British American Tobacco

(Investments) Limited

(formerly known as British-

American Tobacco Company

Limited) in 99-642

et AS ATR A te eA IN MST htt cin eens COON A Oe AA Bo A

a Aka

QUESTION PRESENTED*

Respondents submit that the following question more accu-

rately reflects the fundamental legal defect the Courts of

Appeals found in the plaintiffs’ claims:

Did the three Courts of Appeals in these cases correctly

hold that the plaintiff union funds’ RICO and federal

antitrust claims were barred because the funds’ alleged

injury — payment of medical expenses to treat personal

injuries suffered by their individual participants allegedly

caused by smoking — was derivative of the personal

injuries of the participants, and thus too remote and indi-

rect as a matter of law to permit recovery in “direct”

actions brought by the union funds?

The funds’ claims also suffer from multiple additional defects

which provide independent grounds for affirming the decisions

of the Courts of Appeals. See p. 19n.*, infra.

The Laborers Local and Oregon Laborers Petitions also

include questions concerning the availability of injunctive

relief under RICO, but, as is discussed at pp. 20-22, infra,

it is misleading for Petitioners to assert that these cases “pre-

sent” these questions, and, in any event, these questions do

not warrant the grant of certiorari.

* In communications with the Clerk’s Office, Respondents have

been advised that they may submit a consolidated opposition to the Peti-

tions for certiorari in Steamfitters v. Philip Morris, No. 99-545, Oregon

Laborers v. Philip Morris, No. 99-642, and Laborers Local v. Philip

Morris, No. 99-791. Citations herein to these Petitions are in the form

“Sum. Pet.,” “OL Pet.,” and “LL Pet.,” respectively.

li

LIST OF PARTIES

Appellees below in 99-545:

Philip Morris Incorporated

R.J. Reynolds Tobacco Company

Brown & Williamson Tobacco Corporation

(including as successor by merger to

The American Tobacco Company, Inc.)

B.A.T Industries P.L.C.

Lorillard Tobacco Company

Liggett & Myers, Inc.

United States Tobacco Company

The Council for Tobacco Research-U.S.A., Inc.

The Tobacco Institute, Inc.

Smokeless Tobacco Council, Inc.

Hill & Knowlton, Inc.

Appellees below in 99-642:

Philip Morris Incorporated

R.J. Reynolds Tobacco Company

Brown & Williamson Tobacco Corporation

(including as successor by merger to

The American Tobacco Company, Inc.)

British American Tobacco (Investments) Limited

(formerly known as British-American

Tobacco Company Limited)

Lorillard Tobacco Company

Liggett Group, Inc.

United States Tobacco Company

The Council for Tobacco Research-U.S.A., Inc.

The Tobacco Institute, Inc.

Smokeless Tobacco Council, Inc.

Hill & Knowlton, Inc.

ee

ill

Appellants below in 99-791:

Philip Morris Incorporated

R.J. Reynolds Tobacco Company

Brown & Williamson Tobacco Corporation

(including as successor by merger to

The American Tobacco Company, Inc.)

Lorillard Tobacco Company

Liggett & Myers, Inc.

United States Tobacco Company

The Council for Tobacco Research-U.S.A., Inc.

The Tobacco Institute, Inc.

Smokeless Tobacco Council, Inc.

Hill & Knowlton, Inc.

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.6

Respondent Philip Morris Incorporated has the following

parent corporation:

Philip Morris Companies Inc.

Philip Morris Companies Inc. is the only publicly held

company that owns 10% or more of Philip Morris Incor-

porated’s stock.

Respondent R.J. Reynolds Tobacco Company has the fol-

lowing parent corporation:

R.J. Reynolds Tobacco Holdings, Inc. (formerly known

as RJR Nabisco, Inc.)

R.J. Reynolds Tobacco Holdings, Inc. is the only pub-

licly held company that owns 10% or more of R.J.

Reynolds Tobacco Company’s stock.

iV

Respondent Brown & Williamson Tobacco Corporation

(individually and as successor by merger to The American

Tobacco Company) has the following parent corporations:

B.A.T Industries, p.l.c.

BATIC Inc.

BATUS Holdings Inc. UK/US

BATUS Tobacco Services, Inc.

British American Tobacco p.l.c.

British American Tobacco (1998) Limited

British-American Tobacco (Holdings) Ltd.

Louisville Securities Ltd.

British American Tobacco p.l|.c. is the only publicly held

company that owns 10% or more of Brown &

Williamson Tobacco Corporation’s stock.

Respondent British American Tobacco (Investments) Lim-

ited (“BATCo”) (formerly known as British-American

Tobacco Company Limited) has the following parent corpo-

rations:

British American Tobacco p.l.c.

British American Tobacco (1998) Ltd.

B.A.T Industries p.l.c.

British-American Tobacco (Holdings) Ltd.

British American Tobacco p.l.c. is the only publicly held

company that owns 10% or more of BATCo’s stock.

Respondent Lorillard Tobacco Company, incorrectly named

in the Petitions as Lorillard Tobacco Company, Inc., has the

following parent corporations:

Lorillard, Inc.

Loews Corporation

Lorillard Tobacco Company is a wholly owned sub-

sidiary of Lorillard, Inc., which is a wholly owned sub-

sidiary of Loews Corporation, which has outstanding

securities in the hands of the public.

Vv

Respondent United States Tobacco Company has the

following parent corporation:

UST Inc.

UST Inc. is the only publicly held company that owns

10% or more of United States Tobacco Company’s stock.

Respondent The Council for Tobacco Research-U.S.A., Inc.

(“CTR”) has no parent corporations. There are no publicly

held companies that own 10% or more of CTR’s stock.

Respondent The Tobacco Institute, Inc. (“TI”) has no par-

ent corporations. There are no publicly held companies that

own 10% or more of TI’s stock.

Respondent Hill & Knowlton, Inc. has the following parent

corporations:

WPP Group Holdings Corp.

WPP Group USA, Inc.

WPP International Holdings, Inc.

WPPIH Two, Inc.

WPP Luxembourg S.ARL

WPP Group ple

Ogilvy Group Inc.

J. Walter Thompson Company

WPP Group plc is the only publicly held company that

owns 10% or more of Hill & Knowlton, Inc.’s stock.

Respondent Smokeless Tobacco Council, Inc. (“STC”) has

no parent corporations. There are no publicly held companies

that own 10% or more of STC’s stock.

vi

TABLE OF CONTENTS

Question Presented..............eeee eee e eee e teen ee nees

ROS. 2... epee nner rr rr rer rrr rT ter rr rer

Statement Pursuant to Supreme Court Rule 29.6......

Table Of Authorities. ........5 ccc cc scccccaccceesencesees

FETT, Fh ae ona send cede hegdccedagna inks vanaen ds

Pete: err err errr ne per ret rT irrrerr.

REASONS FOR DENYING THE WRIT............--:

POINTI THERE IS NO CONFLICT AMONG

THE COURTS OF APPEALS.............

POINT II THERE IS NO CONFLICT BETWEEN

THE DECISIONS BELOW AND ANY

DECISION OF THIS COURT...........-.

POINT III PETITIONERS’ OTHER CLAIMS OF

CONFLICT ARE WITHOUT MERIT.....

A. There is no conflict with the other Courts

of Appeals decisions in other contexts

that Petitioners rely upon.............-.5+05-

PAGE

il

14

14

Vii

PAGE

B. Conflicts among the district courts would

not warrant the grant of certiorari and,

in any event, the district courts have

overwhelmingly rejected medical expense

recovery suits by union funds and other

Pe cok tcane cc Cau ineessncis enue 16

C. Conflicts with district court or state trial

court decisions in cases brought by states

or state attorneys general would not warrant

the grant of certiorari and, in any event,

GIO BE WU QUIN E iik os oa.xo Vacs daccdce ies diaai 17

POINT IV THE FUNDS’ CLAIMS FOR

INJUNCTIVE RELIEF UNDER RICO

DO NOT WARRANT THE GRANT

og |. a ee 20

RERUN Li Aves eendceavadi ded aWacanasehaawnts 22

APPENDIX FEDERAL COURT OPINIONS IN

SUITS BROUGHT BY UNION

FUNDS AND OTHER PRIVATE

PAYORS ASSERTING RICO AND/OR

FEDERAL ANTITRUST CLAIMS..... RAI

Vili

TABLE OF AUTHORITIES

Cases: PAGE

Agency for Health Care Administration v. Associ-

ated Industries of Florida, Inc., 678 So.2d

1239 (Fla. 1996), cert. denied, 520 U.S. 1115

CRW ED cocewincsiecdddtucsdaubeckce oe 18n.*

Allgood v. R.J. Reynolds Tobacco Co.,

Oe Fie Ge Ce Ge Cs bkpoccvdccvescosncdads 19n.*

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

SOB UB. GER CEMSGD 66 ss cactdsieeneaee 13

American Society of Mechanical Engineers v.

Hydrolevel Corp., 456 U.S. 556 (1982) .......... 13

Anthony v. Slaid, 11 Metcalf 290, 52 Mass. 290

COMO. BINOUR 6 cinctccicceeincchaareaaenetenseaekes 5

Arkansas Blue Cross & Blue Shield v.

Philip Morris, Inc., 1999 WL 1034711

ae, fe ee ee ea 3, 17n.*

Associated General Contractors of California,

Inc. v. California State Council of

Carpenters, 459 U.S. 519 (1983) ................ passim

Basic Inc. v. Levinson, 485 U.S. 224 (1988)........... 13

Beck v. Prupis, 162 F.3d 1090 (11th Cir. 1998),

cert. granted, 119 S.Ct. 2046 (1999) ............. 14

Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982)........ 21n.*

Blue Cross & Blue Shield of New Jersey v.

Philip Morris, Inc., 1999 WL 592669

(E.D.N.Y. Aug. 2, 1999); 1999 WL

SO eee CHU, By Feeeiicccckcccntheccsckenquuseens 17n.*

ix

PAGE

Blue Cross & Blue Shield United of Wisconsin

v. Marshfield Clinic, 65 F.3d 1406

ES 14,15 &n.*

Blue Shield of Virginia v. McCready,

a 12

Conkling v. Turner, 18 F.3d 1285 (Sth Cir. 1994) ..... 21n.*

Dan River, Inc. v. Icahn, 701 F.2d 278

EE 21

In re EDC, Inc., 930 F.2d 1275 (7th Cir. lo. | 16

Faircloth v. Finesod, 938 F.2d 513

co ooone nonce. 21

In re Fredeman Litigation, 843 F.2d 82]

I ia yous evince oe seeeecee..., 21

Holmes v. SIPC, 503 U.S. 258 (1992) ................ passim

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) .... 13

International Bhd. of Teamsters, Local 734

Health & Welfare Trust Fund v.

Philip Morris, Inc., 1999 WL 103471]

(7th Cir. Nov. 15, 1999).......... 3, 6, 14-15, 16, 17n.*

lowa v. Philip Morris, Inc., 577 N.W.2d 401

NS SS ee 18n.*

lron Workers Local Union No. 17 Insurance

Fund v. Philip Morris, Inc., 23 F. Supp. 2d

711 (N.D. Ohio 1998), 29 F.Supp.2d 801

(N.D. Ohio 1998), bench order (Mar. 5,

Reg aeons cnnneoees... 17n.*

Kaushal v. State Bank of India, 556 F.Supp.

*

SO. 21 & n.

PAGE

Laborers Local 17 Health and Benefit Fund

v. Philip Morris, Inc., 7 F. Supp.2d 277

(S.D.N.Y. 1998), rev’d, 191 F.3d 229

(2d Cir. 1999), r’hg and r’hg en banc

Gadd (Riba, GD, TR ink sv oeha iid tw aban dvnssiscs passim

Metro-North Commuter R.R. Co. v. Buckley,

FES Bis EOE hed Ged cncencecsandakaskaucsuns 19n.*

Mid Atlantic Telecom, Inc. v. Long Distance

Services, Inc., 18 F.3d 260 (4th Cir. 1994) ....... 15

Minnesota v. Philip Morris, Inc., 551 N.W.2d 490 |

Ce Se os vintners eat 18n.*

Mobile Life Ins. Co. v. Brame, 95 U.S. 754 (1877)... 4-5 }

National Organization for Women, Inc. v. i

Screistar, S40 U.S. ZOD CHGOR) onc cccccscccuetssce 12 )

National Asbestos Workers Medical Fund v. |

Philip Morris, Inc., 1999 WL 592669 |

(E.D.N.Y. Aug. 2, 1999); 1999 WL

POE SS CHWOY. 8, TOI ccc cavaakaucscdscccsciadecs 17n.*

Oregon Laborers-Employers Health & Welfare

Trust Fund v. Philip Morris, Inc., 185 F.3d

FSF CONS. SFP) ccs sesisedaravcvsanewesanceses passim

Reiter v. Sonotone Corp., 442 U.S. 330 (1979)........ 19n.*

Religious Technology Ctr. v. Wollersheim,

796 F.2d 1076 (9th Cir. 1986),

cert. denied, 479 U.S. 1103 (1987)............... 21, 22

Rosello v. Brown & Williamson, No. 97-1910

(JAF) slip op. (D.P.R. Aug. 10, 1998)............ 17

Roysdon v. R.J. Reynolds Tobacco Co..,

849 F.2d 230 (6th Cir. 1988).........3.....ccecees 19n.*

xi

PAGE

Sedima, S.P.R.L v. Imrex Co., Inc., 741 F.2d 482

(2d Cir. 1984), rev’d, 473 U.S. 479 (1985) ...13, 21n.*

Steamfitters Local Union No. 420 Welfare

Fund v. Philip Morris, Inc., 171 F.3d

912 (3rd Cir. 1999), r’hg and r’hg

en banc denied (Apr. 29, 1999).................. passim

Steele v. Hospital Corp. of America, 36 F.3d 69

EN PIE anche once ve dere ocak 15

Texas v. American Tobacco Co., 14 F.Supp.2d

amr OTE. TOR. UDOT), ons iinccccccccescsn. 5... 17

Trane Co. v. O’Connor Securities, 718 F.2d 26

Oe Nii cick ce deceadc ssc, c a... 21

United States v. Standard Oil Co. of California,

PRE Me ME CUONEY oo cos ndniasvoccvdccccecccccn. 5

Utah Laborers’ Health & Welfare Trust Fund v.

Philip Morris, Inc., No. 2:96-CV-829B,

slip op. (D. Utah Mar. 30, 1999).................. 16n.*

Statutes and Legislative Materials:

Re eter taste Neg oa 19n.*

er ai ae ee 19 & n.*, 20, 21

PCN os linr cee l

ee ra RIN inns kok < kawcoin icin ciackc.. i, 37a."

42 U.S.C. § 1395y(b)(2) (Medicare Secondary

NN kink cule Felice 19

42 U.S.C. § 2651 et seg. (Medical Care

snctatcbine Besse, ORE eT EAE ant ea 19

xil

PAGE

Pub. L. No. 91-452, § 904(a), 84 i > res 13n.*

Other Authorities:

2 Dobbs, Law of Remedies §§ 8.1(1), (3)

(2d Ed. 1999)... ...cceecceeeeeecseseeeresteereecees 19n.*

JURISDICTION

All three Petitions include precisely the same assertions

concerning jurisdiction in the courts below. See Petitions at 1.

However, the grounds for jurisdiction Petitioners asserted in

the district courts were not all identical. In addition, in Labor-

ers Local, the Court of Appeals took jurisdiction pursuant to

28 U.S.C. § 1292(b), not § 1291. See 7 F.Supp.2d 294 (certi-

fying order); Order (2d Cir. July 14, 1998) (granting leave to

appeal) (LL Pet. 54a, 58a).

STATEMENT

In all three cases Petitioners (union health and welfare

funds) are seeking “to recover money expended ... to provide

medical treatment to their participants and beneficiaries who

have suffered and are suffering from tobacco-related ill-

nesses.” Laborers Local Compl. 417 (LL Ct. App. JA41-42).*

See also Steamfitters Compl. 7 (Stm. Ct. App. JA12) (same

allegation); Oregon Laborers Compl. 16 (OL Ct. App. Excpt.

CR120,p.5) (plaintiffs “seek to recover the tobacco-related

benefit costs incurred by them”). As all three Courts of

Appeals have held — unanimously — in the cases at bar, such

claims by medical expense payors for recovery of money

expended to treat injuries incurred by others must be dis-

missed as a matter of law because the injury alleged is a

remote, indirect and derivative consequence of the personal

injuries of the individual smokers and thus is not proximately

caused by defendants’ alleged acts. See pp. 2-3, 6-10, infra.

. Citations in the form “LL Ct. App. JA__” and “Stm. Ct. App.

JA__” are to the Joint Appendices submitted to the Second Circuit in

Laborers Local and to the Third Circuit in Steamfitters, respectively.

Citations in the form “OL Ct. App. Excpt. __” are to Plaintiffs-Appel-

lants’ Excerpts of Record submitted to the Ninth Circuit in Oregon

Laborers. Respondents will provide the Court with copies of the mate-

rials cited (or any other part of the records below) should the Court so

request.

ESS

2

Petitioners devote pages to allegations of defendants’

wrongdoing; many of these allegations do not even appear in

the complaints in the cases at bar, but are instead taken from

other sources. These allegations — which defendants would

have contested had these cases proceeded beyond Rule

12(b)(6) motions — do not in any way alter the legal bar cor-

rectly found dispositive by all three Courts of Appeals.*

REASONS FOR DENYING THE WRIT

The decisions below are correct and do not conflict with

any decisions of other Courts of Appeals, decisions of this

Court, or decisions from state courts of last resort. Review by

this Court is not warranted.

I. THERE IS NO CONFLICT AMONG THE COURTS

OF APPEALS.

Four Courts of Appeals have to date considered claims by

plaintiff union funds against tobacco companies to recover

medical expenses paid to treat personal injuries of fund par-

ticipants allegedly caused by smoking. All four Courts of

Appeals have unanimously and correctly held that such claims

must be dismissed because the injury alleged is remote, indi-

rect and derivative, and the complaints therefore failed to

allege an injury proximately caused by defendants’ alleged

wrongdoing. Thus, in the three of these four cases that are the

subject of the present Petitions:

* The Second Circuit unanimously held that “the eco-

nomic injuries alleged in plaintiffs’ complaint are

purely derivative of the physical injuries suffered by

plan participants and therefore too remote as a matter

of law,” and directed the district court to dismiss the

as Petitioners’ Statements contain many other errors, including var-

ious inaccurate characterizations of the opinions of the courts below.

Erroneous assertions of law are addressed infra.

complaint. Laborers Local v. Philip Morris, 191 F.3d

229, 244 (LL Pet. 25a) (2d Cir. 1999), r’hg and r’hg en

banc denied (Aug. 6, 1999). Rehearing en banc was

denied in an order which stated that no judge “has

requested that a vote be taken thereon.” Order (Aug. 6,

1999).

* The Third Circuit, holding that the “necessary proxi-

mate-cause connection is missing,” unanimously

affirmed dismissal of the complaint. Rehearing en banc

was denied. Steamfitters v. Philip Morris, 171 F.3d 912,

934 (Stm. Pet. 37a) (3rd Cir. 1999), r’hg and r’hg en

banc denied (Apr. 29, 1999).

* The Ninth Circuit unanimously held that plaintiff union

funds’ “RICO and antitrust claims are ‘too remote’

from defendants’ alleged wrongdoing to allow recov-

ery” and affirmed dismissal of the complaint. No peti-

tion for rehearing or rehearing en banc was filed.

Oregon Laborers v. Philip Morris, 185 F.3d 957, 964

(OL Pet. 9a) (9th Cir. 1999).

Most recently, the Seventh Circuit also unanimously affirmed

dismissal of claims by union funds for the recovery of med-

ical expenses and directed dismissal of similar claims by var-

ious Blue Cross entities on the grounds, inter alia, that “[t]he

injury for which the plaintiffs seek compensation is remote

indeed.” Jnternational Bhd. of Teamsters v. Philip Morris,

Inc., and Arkansas Blue Cross v. Philip Morris, Inc. (joint

opinion) 1999 WL 1034711 at *6 (7th Cir. Nov. 15, 1999).

The lack of a conflict among the Courts of Appeals on the

question presented strongly indicates that review should be

denied. This conclusion is further confirmed by the fact that,

as discussed below, there is no conflict with decisions of this

Court (see Point II, infra), or with decisions of Courts of

Appeals in other contexts (see Point III.A, infra). Further-

more, asserted conflicts with decisions of federal district

courts or state trial courts would not warrant the grant of cer-

|

4

tiorari — even apart from the fact that Petitioners misdepict

the weight of the authority and the pertinence of decisions

from those courts. See Points III.B & III.C, infra.*

Il. THERE IS NO CONFLICT BETWEEN THE DECI-

SIONS BELOW AND ANY DECISION OF THIS

COURT.

There is no conflict between the Courts of Appeals deci-

sions rejecting union fund claims and decisions of this Court.

To the contrary: as all four Courts of Appeals have unani-

mously recognized, dismissal of the funds’ claims to recover

medical expenses paid to treat fund participants follows inex-

orably from this Court’s precedents barring claims for remote

and indirect injuries. As this Court observed in Holmes v.

SIPC, 503 U.S. 258, 2661.10 (1992), a tortious act will often

cause “ripples of harm” extending to various persons. For

example, an insurance company may suffer loss when an

insured is injured, or an employer may incur costs when an

employee is harmed. However, long-standing principles of

law bar persons who suffer indirect and derivative injuries by

virtue of their contractual or other legal relationships with

direct victims of wrongdoing from recovering in their own

right from the tortfeasor; rather, a plaintiff in the position of

the union funds must pursue its recovery through subrogation,

standing in the shoes of the directly injured victim.

As this Court set forth in Holmes, the rule barring claims

for remote and indirect injuries springs from that aspect of the

common law doctrine of proximate cause that “demand[s]” a

“direct relation between the injury asserted and the injurious

conduct alleged.” 503 U.S. at 268. This “requirement” of

direct injury (“one of [the] central elements” of proximate

causation) (id. at 269) is articulated in no fewer than four

decisions by this Court. Thus, in 1877, in Mobile Life Ins. Co.

v. Brame, 95 U.S. 754, this Court barred a life insurer’s

4 A chart describing the disposition of union fund and other pri-

vate payor cases in federal courts is appended to this brief. See RAI.

attempt to recover directly against the murderer of its insured,

explaining:

The relation between the insurance company and [the

insured] was created by a contract between them, to

which [the murderer] was not a party. The injury

inflicted by him was upon [the insured], against his per-

sonal rights; that it happened to injure the plaintiff was

an incidental circumstance, a remote and indirect result,

not necessarily or legitimately resulting from the act of

killing. (/d. at 758-59.)

This Court added that: “we are not cited to any case in this

country or Great Britain where a different doctrine has been

held.” Jd. at 759. Thereafter, in United States v. Standard Oil,

332 U.S. 301, 311-16 (1947), this Court held that the Gov-

ernment did not have a direct right of action under the com-

mon law to recover from a tortfeasor medical expenses

incurred by the Government as a result of tortious injury toa

soldier. This Court made clear that no such cause of action

existed, and declined to create one.

The settled common law bar to recovery for remote injuries

has been expressly applied and incorporated by this Court

into the antitrust laws, Associated General Contractors v.

California State Council, 459 U.S. 519, 531-33 (1983)

(“AGC”), and RICO, Holmes, 503 U.S. at 268-71. In AGC, the

Court held that Congress intended common law principles of

proximate causation, directness of injury, and certainty of

damages to apply to antitrust damages litigation. See 459 U.S.

at 532-333. This Court in AGC illustrated the rule barring

remote and indirect claims with an example drawn from the

facts of the seminal case of Anthony v. Slaid, 52 Mass. 290

(Mass. 1846). See 459 U.S. at 532 n.25. Anthony, who had

contracted to support a town’s poor, sued for his increased

medical expenditures after defendant’s wife assaulted a pau-

per. The Massachusetts Supreme Judicial Court unanimously

denied recovery, concluding that the injury to Anthony —

A nae Sr SO RT eh btn aaa ke

6

notwithstanding the intentional nature of the tort — was “too

remote and indirect.” 52 Mass. at 291.

Thereafter, in 1992, in Holmes, this Court held that RICO

likewise adopted the common law “demand” for a “direct

relation between the injury asserted and the injurious conduct

alleged.” 503 U.S. at 268. The Court held that SIPC — which

stood in the shoes of customers of two different broker-deal-

ers — was not entitled to pursue RICO claims against an

insider whose stock manipulation had caused the failure of the

broker-dealer, which had in turn caused the customers’ loss.

While the manipulation caused cognizable harm to the broker-

dealer, this Court held “the link is too remote between the

stock manipulation alleged and the customers’ harm.” Jd. at

271 (emphasis added).

The injury alleged by the Petitioner funds — payment of

medical expenses to treat personal injuries suffered by fund

participants allegedly injured by smoking (see p. 1, supra) —

falls squarely within a category of injuries which for over

150 years has been held to be remote, indirect and derivative.

Under long-settled law, any such claim must be asserted, if at

all, by way of subrogation, whereby the third-party payor

“steps into the shoes” of the injured individual and is subject

to whatever defenses may be asserted against that individual.

See, e.g., Laborers Local, 191 F.3d at 233 (LL Pet. 4a); Jnter-

national Bhd. of Teamsters, 1999 WL 1034711 at *3 (7th Cir.

Nov. 15, 1999) (“insurers or other third-party providers of

assistance and medical care ... may recover only to the extent

their contracts subrogate them to the victim’s rights.”).

Petitioners claim that their injuries came about through

“two separate causal chains.” The first “causal chain” sup-

poses that defendants directed their alleged wrongful acts at

the funds themselves, thus supposedly preventing the funds

from taking steps to reduce their medical costs by, for exam-

ple, discouraging smoking by their members. The second

“causal chain” supposes that defendants “withheld accurate

information and safer cigarettes from smokers,” thus resulting

te sh Dectipadisilis'

in increased costs to the funds from their participants’ smok-

ing-related illnesses. Stm. Pet. 9 (emphasis added); see also

Oregon Laborers, 185 F.3d at 962 (OL Pet. 4a); Laborers

Local, 191 F.3d at 239 (LL Pet. 16a).

Nevertheless, under each of these theories, the injury to the

funds only occurred because fund participants smoked,

became ill, and incurred medical costs which the funds paid

pursuant to their plan contracts. Thus, as the Second, Third

and Ninth Circuit decisions at bar have all recognized, on

each of the funds’ “causal chains,” injury to the funds is an

indirect and remote consequence of fund participants’ per-

sonal injuries. See Laborers Local, 191 F.3d at 239 (LL Pet.

16a) (funds’ “damages are entirely derivative of the harm suf-

fered by plan participants as a result of using tobacco prod-

ucts”); Steamfitters, 171 F.3d at 927 (Stm. Pet. 24a) (injury to

funds came about through injury to smokers); Oregon Labor-

ers, 185 F.3d at 963 (OL Pet. 8a) (“all of plaintiffs’ claims

rely on alleged injury to smokers”). In concluding that the

funds’ alleged injury was too remote and indirect as a matter

of law, the Second, Third and Ninth Circuit decisions at bar —

far from “creat[ing] a new requirement for ‘direct’ injury,” as

Petitioners argue (LL Pet. 4; Stm. Pet. 4; OL Pet. 4) — prop-

erly applied AGC, Holmes and this Court’s other precedents

to the particular factual framework in these cases.*

” Petitioners argue to this Court (as they did to all the Courts of

Appeals) that their first theory — which they label the “one-link causal

chain” — does not suffer from any problem of remoteness because, under

this theory, the funds “were directly lied to, defrauded, and deprived of

the benefits of new and safer tobacco products. The effect of defendants’

misconduct on [Petitioners] was not mediated through any effect on a

third party.” LL Pet. 19; Stm. Pet. 19; OL. Pet. 18. But Petitioners are

simply wrong, for the proximate cause/indirectness analysis looks at the

relation between the injury alleged and defendants’ misconduct. See, e.g.,

Holmes, 503 U.S. at 268 (“demand for some direct relation between the

injury asserted and the injurious conduct alleged”) (emphasis added);

AGC, 459 U.S. at 535 (court must evaluate “the relationship between”

“the plaintiff’s harm” and “alleged wrongdoing”) (emphasis added). As

noted in the text, the Courts of Appeals are in agreement that the funds’

Indeed, the injury alleged by Petitioners is even more

remote and indirect than the injuries held not actionable in

AGC and Holmes. In those cases, plaintiffs’ injuries were

impermissibly remote and indirect, but plaintiffs at least were

deemed to be asserting an injury separate from that of the

directly injured party. Not so here. Here, the funds’ injuries

all derive from the fact that the funds were called upon to pay

the medical expenses of their directly injured participants. As

the Second Circuit recognized in Laborers Local, the funds’

injury, however characterized, is “entirely derivative of the

harm suffered by plan participants as a result of using tobacco

products.” Laborers Local, 191 F.3d at 239 (LL Pet. 16a).

Petitioners argue that the Second, Third and Ninth Circuits

erroneously applied the requirement of direct injury in a “for-

malistic” way and downplayed a multi-factor remoteness

analysis, which, Petitioners assert, must be applied anew on

an ad hoc basis in each case. LL Pet. 14-23; Stm. Pet. 13-24;

OL Pet. 12-21. But, to the contrary: all three Courts of

Appeals explicitly analyzed and assessed the AGC/Holmes

“factors” in light of the funds’ allegations, and concluded that

these factors supported dismissal. See Laborers Local, 191

F.3d at 239-41 (LL. Pet. 17a-20a); Oregon Laborers, 185 F.3d

at 963-66 (OL Pet. 8a-14a); Steamfitters, 171 F.3d at 923-34

(Stm. Pet. 16a-37a). Given that all three Courts of Appeals

did analyze these policy considerations in concluding that dis-

missal was required, these cases simply do not provide an

opportunity to address the question whether such analysis was

in fact required. Thus:

* All three Courts of Appeals stressed the difficulty

inherent in “ascertain[ing] the amount of [the funds’ ]

damages attributable to the violation, as distinct from

other, independent factors.” Holmes, 503 U.S. at 269.

See Laborers Local, 191 F.3d at 239-40 (LL Pet. 17a-

18a) (“incredibly speculative . . . virtually impossible

alleged injury is derivative of smokers’ personal injuries on both of the

funds’ causal theories.

- . . tO prove with any certainty”; requires “sheerest

sort of speculation”); Steamfitters, 171 F.3d at 930, 933

(Stm. Pet. 29a, 35a) (“highly speculative and complex”;

“tortured path. . . to the Funds’ increased expendi-

tures”; “this causation chain is much too speculative

and attenuated”); Oregon Laborers, 185 F.3d at 965

(OL Pet. 13a) (speculativeness of claims “weigh[s]

heavily, if not dispositively, in favor of barring plain-

tiffs’ actions”).

The concern that “recognizing claims of the indirectly

injured would force courts to adopt complicated rules

apportioning damages among plaintiffs removed at dif-

ferent levels of injury from the violative acts, to obvi-

ate the risk of multiple recoveries” (Holmes, 503 U.S.

at 269) likewise supports dismissal here, as all three

Courts of Appeals recognized. See Laborers Local, 191

F.3d at 240-41 (LL Pet. 18a-19a); Steamfitters, 171 F.3d

at 933 (Stm. Pet. 35a-36a); Oregon Laborers, 185 F.3d

at 965-66 (OL Pet. 14a).

The Second and Ninth Circuits correctly recognized

that lawsuits by smokers (or by the funds in subroga-

tion of individual smokers) were available to remedy

losses arising from any personal injuries inflicted on

smokers, thus satisfying “the general interest in deter-

ring injurious conduct” (Holmes, 503 U.S. at 269):

“The Funds may still bring a subrogation action to

recover the medical costs paid out for the individ-

ual smokers, and the smokers themselves have suf-

ficient independent incentive to pursue their own

causes of action for such additional types of injuries

as pain and suffering. Although these will not be

RICO claims, they will remedy the harm done by

defendants’ alleged misconduct.” Laborers Local,

191 F.3d at 241 (LL. Pet. 20a).

10

“The existence of the smokers, who are more direct

victims of the alleged wrongful conduct and who

can be counted on to vindicate the injury caused by

defendants’ alleged wrongful conduct, weighs heav-

ily in favor of barring plaintiffs’ actions.” Oregon

Laborers, 185 F.3d at 964 (OL Pet. 10a-11a).*

Petitioners also argue that the Courts of Appeals erred by

failing to recognize that “(t]he purpose of these factors is to

7 Petitioners claim that review by this Court is required because

of supposed “conflicts” in the AGC/Holmes policy factor analysis that

each Court of Appeals concluded required dismissal of Petitioners’

claims. See LL Pet. 11; OL Pet. 9-10. But, as the text accompanying this

footnote shows, any differences between the Courts’ analyses are greatly

outweighed by the agreements and, in any event, the ultimate result in

each case was the same. Any such differences in analysis as may exist

fall far short of “conflicts” requiring this Court's review.

In addition, it is respectfully submitted that AGC and Holmes do not

require that the “factors” discussed therein — which Holmes described

as “reasons” for the “directness of relationship” “requirement” (503 U.S.

at 269 (emphasis added)) — be applied anew in every case, even in cat-

egories of cases in which the principles of proximate causation are long-

settled, as they are here. See pp. 4-6, supra. Although, as this Court

observed in AGC, 459 U.S. at 536, and in Holmes, 503 U.S. at 272, n.20,

a black-letter rule cannot be announced that would dictate the result of

“every case,” that does not mean that no black-letter rule can ever be

articulated that would require dismissal in any case. For example, it is

uniformly settled that a corporate shareholder may not bring a “direct”

claim to recover for diminution to the value of his shares occasioned by

injury to the corporation. Thus, there is no need in each attempted

“direct” suit by a shareholder to engage in a case-by-case analysis of the

policy factors; rather, it is well-settled that the shareholder's only recourse

lies in bringing a derivative suit on behalf of the corporation. Nor should

there be any need to engage in an ad hoc review of the policy factors here

where another well-settled rule likewise applies to require dismissal, to

wit, “plaintiffs who are obligated to pay the medical expenses of another

may not recover against the tortfeasor who caused the damage.” Labor-

ers Local, 191 F.3d at 237 (LL Pet. 12a). However, as noted in the text,

given that here all three Courts of Appeals did in fact analyze the policy

“factors” in concluding that dismissal was required, it makes no difference

here whether such an analysis was in fact “required.”

1]

identify which of several possible plaintiffs will be given

standing to sue for a RICO [or antitrust] violation.” LL Pet.

14; Stm. Pet. 13; OL Pet. 13. In other words, Petitioners argue

that some plaintiff must always be given Standing to bring a

federal treble damages suit under RICO or the antitrust laws

for every injury, no matter how remote, indirect, and deriva-

tive that injury is. But Petitioners’ “best plaintiff” theory is

unfounded, and was unanimously (and properly) rejected.

AGC specifically observed that “there is a point beyond which

[a] wrongdoer should not be held liable” for the “ripples of

harm” flowing from a violation of the antitrust laws, and

explicitly rejected any contention that there must always be

a plaintiff with standing to bring a federal Statutory treble

damages suit for every injury: “Congress did not intend the

antitrust laws to provide a remedy in damages for all injuries

that might conceivably be traced to an antitrust violation.”

459 U.S. at 534 (emphasis added). To like effect, Holmes

explains that the doctrine of proximate cause is a “judicial

tool[ ] used to limit a person’s responsibility for the conse-

quences of that person’s own acts.” 503 U:S. at 268 (empha-

sis added). Moreover, as noted above, individual smokers can

bring suit to remedy any personal injuries suffered (and the

funds, standing in the shoes of their participants, may pursue

subrogation claims to recover medical expenses paid to treat

particular individual smokers) — albeit (as all parties agree)

such claims would not be federal RICO or antitrust claims

because such personal injury claims would not Satisfy the

injury to “business or property” requirement for suit under

those statutes. *

Indeed, Petitioners’ “best plaintiff” theory turns Congres-

sional intent on its head. The inability of those directly

injured (i.e., individual smokers) to sue under RICO or the

7 See, e.g., Stm. Pet. 2, 20 (“Smokers cannot bring RICO and

antitrust claims because they ... cannot satisfy the ‘business or property’

requirement”); LL Pet. 3 (funds are “only plaintiffs ... legally able to

assert these RICO claims”) (emphasis in original), 19-20: OL Pet. 3, 18.

12

antitrust laws for their medical expenses because personal

injuries are not injuries to “business or property” is hardly a

point in favor of allowing the funds to sue under these federal

statutes for those same injuries. This would flout Congress’

policy determination not to permit recovery of personal injury

damages, including medical expenses, in RICO or antitrust

treble damage actions — no matter by whom asserted. See

Laborers Local, 191 F.3d at 241 (LL Pet. 20a) (“the lack of a

RICO damages remedy for even direct personal injuries ...

actually weighs heavily against RICO standing for parties

(such as the Funds) alleging harms that are purely contingent

on personal injuries suffered by others”) (emphasis added);

Oregon Laborers, 185 F.3d at 964 (OL Pet. 9a-11a).

Petitioners’ argument that there is a conflict between the

three Courts of Appeals decisions from which they seek cer-

tiorari and certain other decisions of this Court (LL Pet. 4,

16-17; Stm. Pet. 4, 15-16; OL Pet. 4, 14-15) is also manifestly

without merit. None of the cases Petitioners cite held that a

plaintiff can sue under RICO or the antitrust laws for injuries

arising as a consequence of prior injuries to another (to say

nothing of indirect injuries resulting from treating or com-

pensating the first-injured person for his injury). Thus:

°* In Blue Shield v. McCready, 457 U.S. 465 (1982), the

plaintiff was directly injured as a participant (buyer) in

the market for psychotherapy services. See AGC, 459

U.S. at 540 n.44; see also Steamfitters, 171 F.3d at 926;

Oregon Laborers, 185 F.3d at 967.

* In NOW vy. Scheidler, 510 U.S. 249 (1994), the only

issue on which certiorari was granted was whether an

economic motive was required for a RICO claim (id. at

252), and the only standing issue addressed by this

Court was the “threshold” issue whether plaintiffs had

jurisdictional or Article Ill standing — which requires

only injury-in-fact and not the proximate cause require-

ment of “direct injury” that bars plaintiffs’ claims here

(id. at 255-56).

ia i a

13

* Allied Tube v. Indian Head, 486 U.S. 492 (1988)

(which limited certiorari to an issue of Noerr-Pen-

nington immunity, id. at 499 n. 3), and American Soc 'y

Mech. Eng’rs v. Hydrolevel, 456 U.S. 556 (1982), con-

cern injuries to competitors caused by influencing stan-

dard-setting bodies to promulgate certain standards and

issue interpretations of such standards; in neither case

did the Court address any issue of direct injury/proxi-

mate cause.

* Illinois Brick v. Illinois, 431 U.S. 720 (1977), simply

recognizes a narrow exception to the separate “direct

purchaser rule” of the antitrust laws for cost-plus con-

tracts.

* Basic Inc. vy. Levinson, 485 U.S. 224 (1988), which

upheld a presumption of reliance on public misrepre-

sentations in Rule 10b-5 actions, did not concern RICO

or the antitrust laws or the issue of proximate causa-

tion.

* Although this Court in Sedima v. Imrex, 473 U.S. 479,

497 (1985), noted generally that “RICO is to be read

broadly,” the case did not involve any issue of Standing

to pursue RICO claims for remote and indirect injuries.

And thereafter in Holmes, this Court squarely held that

Congress intended to require direct injury in RICO

actions. 503 U.S. at 265-68. As this Court stated.

“[aJllowing suits by those injured only indirectly”

would actually “ ‘undermine[ ] the effectiveness of tre-

ble-damage suits.’ " Holmes, 503 U.S. at 274 (empha-

sis added), quoting AGC, 459 U.S. at 545.*

~ The funds, quoting Pub. L. No. 91-452, § 904(a), 84 Stat. 947,

argue that RICO “shall be liberally construed to effectuate its remedial

purposes.” LL Pet. 12; Stm. Pet. 11; OL Pet. 10. But this does not mean

that there is standing under RICO to assert claims for remote and indirect

injuries, as the Court made clear in Holmes in rejecting the identical

argument that § 904(a) required a finding that SIPC had standing. See 503

U.S. at 274.

14

For all these reasons, the decisions of the Courts of Appeals

faithfully apply settled principles set forth in this Court’s

cases. Review therefore should be denied.

Finally, Petitioners’ assertion that Beck v. Prupis, No. 98-

1480, cert. granted, 119 S.Ct. 2046 (1999), argued Nov. 3,

1999, raises a “related” question concerning “the proper inter-

pretation of the [Holmes] proximate cause factors” (OL Pet.

2; LL Pet. 2) is without merit. The issue in Beck, as stated by

the Eleventh Circuit, was whether “a plaintiff bringing a civil

RICO conspiracy claim [must] prove that the overt act (in fur-

therance of the conspiracy) by which he was injured was an

‘act of racketeering.’ ” 162 F.3d 1090, 1093 (11th Cir. 1998).

This was also the “Question Presented” in Petitioner Beck’s

brief to this Court. See 1999 WL 543861 at *i. This is a dif-

ferent issue from that presented by Petitioners here.

fl. PETITIONERS’ OTHER CLAIMS OF CONFLICT

ARE WITHOUT MERIT.

A. There is no conflict with the other Courts of

Appeals decisions in other contexts that Peti-

tioners rely upon.

As noted, there is unanimous agreement between the Courts

of Appeals to have addressed Petitioners’ claims and no con-

flict with decisions of this Court. The Courts of Appeals deci-

sions in other contexts relied on by Petitioners (see LL Pet.

17-19; Stm. Pet. 16-19; OL Pet. 15-18) do not remotely cre-

ate a conflict, much less a conflict warranting review. by this

Court:

* Blue Cross v. Marshfield Clinic, 65 F.3d 1406 (7th Cir.

1995), involving an antitrust claim by a Blue Cross

payor who was overcharged by a seller of medical

services (the clinic), is “inapposite,” as the Seventh

Circuit itself made plain in its recent decision in /nter-

15

national Bhd. of Teamsters v. Philip Morris. See 1999

WL 1034711 at *7 (7th Cir. Nov. 15, 1999).*

* Steele v. Hospital Corp., 36 F.3d 69, 71 (9th Cir. 1994),

held that patients could nor sue under RICO based on

overcharges to their insurance company because the

patients had suffered no financial loss. The Oregon

Laborers funds argued to the Ninth Circuit that Steele

supported their position (see Plaintiffs-Appellants’ Mar.

1, 1999 Br. at 27), but the Ninth Circuit obviously did

not agree. But, even assuming arguendo that an over-

charged insurance company would have had a RICO

claim against an overcharging seller of medical services

(which was not at issue in Steele), that scenario is not

germane here (for the same reason that Marshfield is

“inapposite”). In any event, even if (contrary to fact)

one hypothesized conflicts within the Ninth Circuit.

such conflicts would not warrant grant of certiorari.

See Wisniewski v. United States, 353 U.S. 901, 902

(1957).

* Mid Atlantic Telecom v. Long Distance Servs., 18 F.3d

260 (4th Cir. 1994), which involved a RICO claim

alleging that a competitor’s fraudulently low rates

forced plaintiff to lower its own rates and caused loss

of customers, is likewise irrelevant. The Fourth Circuit

observed that “Mid Atlantic’s injuries, as alleged, are

not derivative of any losses suffered by its former cus-

” Petitioners argue that the decisions of the four Courts of Appeals

rejecting claims by payors of the medical expenses of others to treat

injuries inflicted upon such others by a tortfeasor mean that “fraudulent

overbilling or anticompetitive price-fixing by a cancer medicine supplier

would not be actionable by the payor.” LL Pet. 13; Stm. Pet. 12-13; OL

Pet. 12. But Petitioners are wrong and their hypothetical is not to the

point: in the hypothetical (as in Marshfield) there may be a direct injury

resulting from the wrongful acts of the medical supplier; however, the

hypothesized suit is not against a tortfeasor alleged to have caused the

injury to the patient requiring that he be treated by the “cancer

medicine.”

16

tomers. Rather, it claims distinct and independent

injuries.” Id. at 264 (emphasis added).

¢ Finally, Petitioners’ footnote citations (LL Pet. 18 n.5;

Stm. Pet. 17 n.7; OL Pet. 16 n.4) include: Third Circuit

cases which Steamfitters explicitly ruled were not on

point (see 171 F.3d at 923, 931-32 (Stm. Pet. 15a-16a,

30a-32a)); Second Circuit cases which Laborers Local

addressed and explicitly concluded were examples of

direct injury (see 191 F.3d at 237-39 (LL Pet. 13a-15a));

and a Seventh Circuit case (Jn re EDC, Inc., 930 F.2d

1275 (7th Cir. 1991) which that Court pointed out in

International Bhd. of Teamsters is “inapposite” (1999

WL 1034711 at *7). The other cases in Petitioners’

footnote are not on point and, in any event, are all from

Circuits in which appeals of dismissals of substantially

identical union fund cases are now pending (i.e., in the

Fifth, Eighth, Ninth, Tenth and Eleventh Circuits).

B. Conflicts among the district courts would not

warrant the grant of certiorari and, in any event,

the district courts have overwhelmingly rejected

medical expense recovery suits by union funds

and other private payors.

Even if one hypothesized a split among the federal district

courts in these cases, such a split would not warrant exercise

of this Court's certiorari jurisdiction. But, in any event, Peti-

tioners misrepresent the weight of the authority in union fund

and other private payor cases in federal district courts. See LL

Pet. 25-27; Stm. Pet. 26-29; OL Pet. 22-25. The federal dis-

trict courts have overwhelmingly rejected these suits. To date,

16 federal district courts have dismissed the RICO and federal

antitrust claims in such suits as a matter of law. See RA2-4,

infra. In addition, in other federal district courts RICO and

federal antitrust claims have been voluntarily dismissed by

plaintiffs. See RA4-5, infra. By contrast, of those federal dis-

trict courts that thus far have decided motions to dismiss,

17

RICO and federal antitrust claims survive today in only two.

See RAS-6, infra.*

C. Conflicts with district court or state trial court

decisions in cases brought by states or state

attorneys general would not warrant the grant of

certiorari and, in any event, there is no conflict.

Petitioners’ repeated reliance on cases brought by states or

State attorneys general is misplaced. Only two of the decided

cases brought by states or state attorneys general against the

tobacco companies — the Texas and Puerto Rico suits (Texas

v. American Tobacco Co., 14 F.Supp.2d 956 (E.D. Tex. 1997);

Rosello v. Brown & Williamson, No. 97-1910 (JAF), slip op.

(D.P.R. Aug. 10, 1998)) — asserted federal RICO or antitrust

claims. Both courts relied on the state’s invocation of so-

called “quasi-sovereign” or parens patriae authority in allow-

ing these cases to continue, decisions with which Respondents

disagree but concepts which obviously are not applicable in

suits by union funds. See Laborers Local, 191 F.3d at 244 (LL

Pet. 25a); Steamfitters, 171 F.3d at 934 n.18 (Stm. Pet. 37a).

In addition, the court in the Texas suit dismissed the state’s

federal antitrust claims and essentially deferred ruling upon

the sufficiency of the federal RICO claim. Texas, 14 F. Supp.2d

* Of these two district courts, one (in Utah) certified its order for

appeal under § 1292(b); on November 22, 1999, the Tenth Circuit granted

leave to appeal. Only one federal judge, Judge Weinstein in the Eastern

District of New York, has both refused to dismiss the cases before him

(National Asbestos and New Jersey Blue Cross) and refused to certify.

See RA6, infra. As the Seventh Circuit observed in Jnternational Bhd of

Teamsters, Judge Weinstein’s denial of defendants’ motions to dismiss “is

a thinly disguised refusal to accept and follow the second circuit's hold-

ing [in Laborers Local}.” 1999 WL 1034711 at *8. As to two other cases

Petitioners rely upon, in Arkansas Blue Cross the Seventh Circuit has

now reversed and instructed the district court to dismiss the case (id. at

*9), and although the court in /ron Workers denied 12(b)(6) dismissal of

federal RICO and antitrust claims, it subsequently dismissed the antitrust

claim on summary judgment and granted a directed verdict on the RICO

claim. See RAI, 3, infra.

- 18

at 969-70. The other decisions in state cases cited by Peti-

tioners — all of which were brought in the plaintiff states’

own courts — alleged only state law claims and are almost

entirely decisions of state trial courts.* Thus the cases

brought by the states cannot support the grant of certiorari to

review the dismissal by the Courts of Appeals of the union

funds’ RICO and federal antitrust claims.

Nor is the settlement of the state cases relevant. As the Sec-

ond Circuit observed (describing decisions of other courts in

cases brought by states and state attorneys general): “in gen-

eral, state cases are often distinguishable on the issue of prox-

imate causation given the state’s unique role relative to

protection of its citizens, statutes governing Medicaid recoup-

ment, and certain state statutes that permit states to maintain

actions on behalf of their citizenry.” Laborers Local, 191 F.3d

at 244 (LL Pet. 25a). See also Steamfitters, 171 F.3d at 934

n.18 (Stm. Pet. 37a).

° The first state action filed in state court was brought in 1994 by

the Mississippi Attorney General in a chancery court in Pascagoula, Mis-

sissippi. Texas filed its suit in the Texarkana Division of the Eastern Dis-

trict of Texas federal court, where only one judge sat.

Although Petitioners fail to mention it, in all three cases in which the

issue reached a state's highest court, each state Supreme Court ruled that

medical expense payors do nor have an independent direct cause of action

at common law, but can only proceed (if at all) through subrogation. See

lowa v. Philip Morris, Inc., 577 N.W.2d 401, 407 (lowa 1998); Agency

for Health Care v. Associated Indus., 678 So.2d 1239, 1248 (Fla. 1996)

(holding that state did not possess independent cause of action prior to

1994 anti-tobacco statute), cert. denied, 520 U.S. 1115 (1997); Minnesota

v. Philip Morris, 551 N.W.2d 490, 495 (Minn. 1996) (dismissing Blue

Cross’ special duty claim as “simply too remote”; allowing certain state

statutory claims to survive because specific state statutes involved assert-

edly overcame remoteness bar). Thus, the three highest state courts to

reach these issues — like the four federal Courts of Appeals — recog-

nized that “direct” claims by medical expense payors are barred under

traditional common law principles (which, as noted, this Court has

applied to private actions under the federal antitrust laws and RICO, see

pp.5-6, supra).

19

Similarly, the mere filing of suit by the United States

against the tobacco companies (see LL Pet. 4-5: Stm. Pet. 4;

OL Pet. 4) cannot possibly justify certiorari. That lawsuit has

not yet produced a district court decision evaluating its legal

merit, much less appellate review of such a decision. More-

over, two of the three claims asserted (under the Medical Care

Recovery Act and the Medicare Secondary Payer statute)

were not asserted in these union fund cases, and the RICO

claim is brought pursuant to 18 U.S.C. § 1964(a) and (b) and

seeks only equitable relief whereas-the focal point of Peti-

tioners’ suits was treble damages pursuant to § 1964(c). See

p. 20, infra.*

" Review of the Courts of Appeals decisions at bar is also unwar-

ranted because there are multiple grounds for affirming the decisions, and

review would not lead to reversal. First, Petitioners’ RICO and antitrust

claims are also barred because medical expenses occasioned by personal

injuries are not injury to “business or property.” 15 U.S.C. § 15; 18

U.S.C. §1964(c); see also Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979). The medical expenses the funds seek here are an integral com-

ponent of their participants’ personal injury claims (see, e.g., Metro-

North v. Buckley, 521 U.S. 424, 438-39 (1997); 2 Dobbs. Law of

Remedies §§ 8.1(1), (3) (2d ed. 1999)), and accordingly are not “business

or property” injury. See Laborers Local, 191 F.3d at 241 (LL Pet. 19a-

20a); Oregon Laborers, 185 F.3d at 964 and 968 (OL Pet. 9a-10a, 19a).

To permit the funds to characterize medical expenses for personal injuries

allegedly inflicted upon others as “business or property” injury to them-

selves would sanction a form of legal alchemy which would permit the

existence of insurance to transform state-law claims for personal injuries

into federal antitrust and RICO treble damages claims. There is no basis

for such a result.

Second, Petitioners were not participants in a market that defendants

are alleged to have restrained and thus did not suffer antitrust injury. See

Oregon Laborers, 185 F.3d at 966-67 (OL Pet. 16a-18a). Third, there are

procedural deficiencies in the record below that make these cases

unattractive vehicles for the presentation of plaintiffs’ position. Specif-

ically, the funds’ conclusory allegations of reliance lack the required par-

ticularity. In addition, as a matter of law, the funds cannot plead

justifiable reliance because a plaintiff who is on notice of facts that

should arouse suspicion must make a reasonable investigation to ascer-

iain the truth. Court after court has recognized that the health risks asso-

i tat DR SOT ANAT each I

SUS NEAR INAS AE eA RIE al seer aA

FE

b

i

FS

20

IV. THE FUNDS’ CLAIMS FOR INJUNCTIVE RELIEF

UNDER RICO DO NOT WARRANT THE GRANT

OF CERTIORARI.

The Oregon Laborers Petitioners state that certiorari is

needed to decide whether injunctive relief is available to a

private RICO plaintiff (OL Pet. 25), and the Laborers Local

Petitioners ask the Court to decide whether the Holmes “fac-

tors” apply to their RICO claim for injunctive relief (LL Pet.

27: see also Stm. Pet. 24 n.10 (referencing same issue)). But

Petitioners’ suggestions that these cases present issues con-

cerning injunctive relief under RICO are misleading, and

review by this Court of any such issue is plainly unwarranted

here.

First, the procedural history of these cases makes them

poor vehicles for addressing questions of injunctive relief

under RICO. Thus, the issue of injunctive relief in these cases

is a clear afterthought to Petitioners’ claims for RICO treble

damages. The funds’ Courts of Appeals briefs barely men-

tioned RICO injunctive relief: the Oregon Laborers Peti-

tioners’ Ninth Circuit briefs devoted barely one page (out of

90) to the issue, and the Laborers Local Petitioners’ Second

Circuit brief did not address it at all (their Petition for

Rehearing devoted only a half page to the issue). Moreover,

the Oregon Laborers Petitioners appear to argue (at least in

part) that injunctive relief under § 1964(a) is available to

those private litigants who have standing to sue for damages

under § 1964(c). See OL Pet. 27. But § 1964(c) requires a

plaintiff to show injury to its “business or property” — which

Petitioners cannot do. See p. 19n.*, supra. Thus, here the

issue of whether a private plaintiff may sue for injunctive

relief under RICO is complicated by the threshold issue of

Petitioners’ lack of “business or property” injury. In short,

ciated with smoking are a matter of longstanding common knowledge.

See, e.g., Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th

Cir. 1988); Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (Sth

Cir. 1996).

21

even were there a fully developed circuit split concerning the

availability of RICO injunctive relief in a suit by a private

plaintiff — and there is not (see below) — these cases are not

appropriate vehicles by means of which to address the issue.

Second, there is no circuit split warranting review. The

Ninth Circuit rejected the funds’ claim for RICO injunctive

relief on the basis of its decision in Religious Technology Ctr.

v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986), cert. denied,

479 U.S. 1103 (1987). See Oregon Laborers, 185 F.3d at 967-

68 (OL Pet. 19a). Wollersheim extensively reviewed the leg-

islative history of 18 U.S.C. §1964 and concluded that injunc-

tive relief under RICO is not available to private litigants.

796 F.2d at 1084-87. A number of Courts of Appeals are in

agreement with the Ninth Circuit’s conclusion. See, e.g., In re

Fredeman Litig., 843 F.2d 821, 828-30 (Sth Cir. 1988); Dan

River, Inc. v. Icahn, 701 F.2d 278, 290 (4th Cir. 1983); Trane

Co. v. O’Connor Securities, 718 F.2d 26, 28-9 (2d Cir. 1983);

see also Kaushal v. State Bank of India, 556 F.Supp. 576,

581-85 (N.D.IIl. 1983). Certain Courts of Appeals have not

expressed a view on the issue. The only example Petitioners

can offer of a Court of Appeals indicating that injunctive

relief is available to a private RICO plaintiff is a one sentence

footnote in Faircloth v. Finesod, 938 F.2d 513, 518 n.11 (4th

Cir. 1991) (OL Pet. 26 n.10). In that footnote, a panel of the

Fourth Circuit — without discussion and citing no authority

(in particular, not citing Dan River (op. cit.), an earlier Fourth

Circuit case expressing “substantial doubt” that such relief

was available) — affirmed a permanent injunction issued inci-

dent to an award of treble damages to prevent defendant from

collecting on a note wrongly obtained from plaintiff. See OL

Pet. 26 n.10. This solitary footnote does not establish a circuit

split warranting certiorari.*

. The Third Circuit in Steamfitters states that “circuits are split”

on the issue of injunctive relief for private RICO plaintiffs, and cites

Conkling v. Turner, 18 F.3d 1285, 1296 n.8 (Sth Cir. 1994), for that state-

ment. 171 F.3d at 935 n.20 (Stm. Pet. 39a). But the only Court of Appeals

case Conkling cites as favoring the availability of such relief is Bennett

22

Third, unless the Court first overrules Wollersheim and

other Courts of Appeals and holds that RICO injunctive relief

is available to a private plaintiff, it would obviously be futile

for the Court to address the issue raised by the Laborers Local

Petitioners of whether the Holmes policy considerations apply

in such a suit for injunctive relief. In addition, Petitioners are

asking this Court to decide the applicability of the Holmes

considerations in a private RICO injunction suit on an entirely

clean slate: Petitioners do not identify any court in the coun-

try that has addressed this issue (a// the cases Petitioners cite

on this point concern injunctive relief under the antitrust

laws, see LL Pet. 27-30).

CONCLUSION

For the foregoing reasons, the petitions for writs of cer-

tierari in Laborers Local, Steamfitters and Oregon Laborers

should be denied.

Dated: November 23, 1999

v. Berg, 685 F.2d 1053, 1064 (8th Cir. 1982); however, Bennett merely

cites to a law review article “without at this time endorsing or rejecting

the opinions there expressed.” Moreover, the argument of the article cited

by the Eighth Circuit in Bennett — an argument relied on by the Oregon

Laborers Petitioners (see OL Pet. 27) — has been criticized by a number

of courts. See, e.g., Sedima v. Imrex Co., 741 F.2d 482, 490 n.20 (2d Cir.

1984) (“a rather remarkable argument”), rev'd on other grounds, 473 U.S.

479 (1985); Kaushal, 556 F.Supp. at 582 & n.17 (“bizarre and wholly

unconvincing” argument ).

By:

* Counsel of Record

23

Respectfully submitted,

HERBERT M. WACHTELL

Herbert M. Wachtell*

Peter C. Hein

Stephen R. Blacklocks

WACHTELL, LIPTON, ROSEN & KATZ

51 West 52nd Street

New York, New York 10019

(212) 403-1000

David S. Eggert

James Rosenthal

ARNOLD & PORTER

555 Twelfth Street, N.W.

Washington, D.C. 20004-1202

(202) 942-5000

Attorneys for Respondent

Philip Morris Incorporated

Robert H. Klonoff

Paul S. Ryerson

JONES, DAY, REAVIS & POGUE

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Attorneys for Respondent

R.J. Reynolds Tobacco Company

Peter J. Busch

Henry Joseph Escher III

HOWARD, RICE, NEMEROVSKI,

CANADY, FALK & RABKIN

Three Embarcadero Center, 7th Floor

San Francisco, California 94111

(415) 434-1600

Attorneys for Respondent

R.J. Reynolds Tobacco Company

in 99-642

Kenneth N. Bass

Edward W. Warren

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

202) 879-5000

Attorneys for Respondent

Brown & Williamson Tobacco

Corporation (including as

successor by merger to

Respondent The American

Tobacco Company, Inc.)

Jeffrey S. Nelson

Joseph A. Lanahan

SHOOK, HARDY & BACON L.L.P.

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

(816) 474-6550

Attorneys for Respondent

Lorillard Tobacco Company

Peter J. McKenna

Eric S. Sarner

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

919 Third Avenue

New York, New York 10022

(212) 735-3000

Attorneys for Respondent

United States Tobacco Company

Steven Klugman

Bruce G. Merritt

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

(212) 909-6000

Attorneys for Respondent

The Council for Tobacco

Research — U.S.A., Inc.

Howard M. Klein

William J. O’Brien

CONRAD O’BRIEN GELLMAN

& ROHN, P.C.

Sixteenth Floor

1515 Market Street

Philadelphia, Pennsylvania 19102-1916

(215) 864-9500

Attorneys for Respondent

The Tobacco Institute, Inc.

Wilbur L. Kipnes

SCHNADER HARRISON SEGAL

& LEwis LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103-7286

(215) 751-2336

Attorneys for Respondent

Smokeless Tobacco Council, Inc.

in 99-545

Barry S. Schaevitz

JACOB, MEDINGER & FINNEGAN, LLP

1270 Avenue of the Americas, 31st Floor

New York, New York 10020

(212) 332-7700

Attorneys for Respondent

Smokeless Tobacco Council, Inc.

in 99-79]

Bruce M. Ginsberg

Marc Rachman

DAVIS & GILBERT

1740 Broadway

New York, New York 10019

(212) 468-4800

Attorneys for Respondent

Hill & Knowlton, Inc.

Jay R. Henneberry

Susan St. Denis

CHADBOURNE & PARKE, LLP

601 South Figueroa Street

Los Angeles, California 90017-3706

(213) 892-1000

Attorneys for Respondent

British American Tobacco

(Investments) Limited

(formerly known as British-

American Tobacco Company

Limited) in 99-642

Appendix

FEDERAL COURT OPINIONS IN SUITS BROUGHT BY

UNION FUNDS AND OTHER PRIVATE PAYORS

ASSERTING RICO AND/OR FEDERAL ANTITRUST

CLAIMS

A. FEDERAL COURTS DISMISSING RICO AND/OR

FEDERAL ANTITRUST CLAIMS

1. Courts of Appeals

Second Circuit:

Laborers Local 17 Health & Benefit Fund v. Philip Mor-

ris, Inc., 191 F.3d 229 (2d Cir. 1999) (on § 1292(b)

appeal by defendants, reversed denial of 12(b)(6) motion

and directed dismissal of RICO claims; federal antitrust

claims previously dismissed by district court, 7 F.Supp.2d

277 (S.D.N.Y. 1998)), r’hg and r’hg en banc denied (2d

Cir. Aug. 6, 1999).

Third Circuit:

Steamfitters Local Union No. 420 Welfare Fund v. Philip

Morris, Inc., 171 F.3d 912 (3d Cir. 1999) (affirmed dis-

missal of RICO and federal antitrust claims), r’hg and

r’hg en banc denied (Apr. 29, 1999).

Seventh Circuit:

International Brotherhood of Teamsters, Local 734

Health & Welfare Trust Fund and Central States Joint

Board Health & Welfare Trust Fund vy. Philip Morris,

Inc., and Arkansas Blue Cross & Blue Shield v. Philip

Morris Inc., 1999 WL 1034711 (7th Cir. Nov. 15, 1999)

(suits by union funds and Blue Cross/Blue Shield enti-

RA2

ties;* affirmed or directed dismissal of all claims,

including RICO and federal antitrust claims).

Ninth Circuit:

Oregon Laborers—Employers Health & Welfare Trust

Fund v. Philip Morris, Inc., 185 F.3d 957 (9th Cir. 1999)

(affirmed dismissal of RICO and federal antitrust

claims).

2. District Courts

Allegheny General Hosp. v. Philip Morris, Inc., No.

99-9, slip op. (W.D. Pa. Nov. 4, 1999) (Judge Ambrose)

(RICO and federal antitrust claims by hospital owners

and operators dismissed).

Arkansas Carpenters’ Health & Welfare Fund v. Philip

Morris, Inc., No. LR-C-97-754, slip op. (E.D. Ark. Sept.

28, 1999) (Judge Moody) (RICO and federal antitrust

claims dismissed); notice of appeal filed; appeal volun-

tarily dismissed (8th Cir. Nov. 22, 1999).

Rhode Island Laborers’ Health & Welfare Fund v. Philip

Morris, Inc., 1999 WL 619064 (D.R.I. Aug. 11, 1999)

(Magistrate Judge Lovegreen) (recommending dismissal

of RICO and federal antitrust claims; recommendation

pending with district court).

Massachusetts Laborers’ Health & Welfare Fund v.

Philip Morris, Inc., 62 F.Supp.2d 236 (D. Mass. 1999)

(Judge O’ Toole) (RICO and federal antitrust claims dis-

missed).

Lyons v. Philip Morris, Inc., No. 98-515, slip op. (D.

Minn. Apr. 29, 1999) (Judge Magnuson) (RICO and fed-

eral antitrust claims dismissed); appeal pending.

” Except where specifically indicated, plaintiffs in the cases listed

herein were union funds.

RA3

Contractors, Laborers, Teamsters & Engineers Health &

Welfare Plan v. Philip Morris, Inc., No. 8:98CV364, slip

op. (D. Neb. Feb. 18, 1999) (Judge Shanahan) (RICO

and federal antitrust claims dismissed).

Laborers’ & Operating Engineers’ Utility Agreement

Health & Welfare Trust Fund for Arizona v. Philip Mor-

ris, Inc., No. CIV 97-1406 PHX SMM (D. Ariz. Feb. 10,

1999) (Judge Sedwick) (RICO and federal antitrust

claims dismissed); appeal pending.

Hawaii Health & Welfare Trust Fund for Operating

Engineers v. Philip Morris, Inc., 52 F.Supp.2d 1196 (D.

Haw. 1999) (Judge King) (RICO and federal antitrust

claims dismissed); appeal pending.

Regence Blueshield v. Philip Morris, Inc., 40 F.Supp.2d

1179 (W.D. Wash. 1999) (Judge Rothstein) (RICO and

federal antitrust claims brought by various Blue

Cross/Blue Shield entities dismissed); appeal pending.

Oregon Laborers-Employers Health & Welfare Trust

Fund v. Philip Morris, Inc., 17 F.Supp.2d 1170 (D.Or.

1998), aff'd, 185 F.3d 957 (9th Cir. 1999) (see RA2,

Supra).

Williams & Drake Co. v. American Tobacco Co., No. 98-

553, slip op. (W.D. Pa. Dec. 21, 1998) (Judge Ambrose)

(RICO and federal antitrust claims brought by self-

insured employer dismissed).

Texas Carpenters Health Benefit Fund v. Philip Morris,

Inc., 21 F.Supp.2d 664 (E.D. Tex. 1998) (Judge Heart-

field) (RICO and federal antitrust claims dismissed);

appeal pending.

Iron Workers Local Union No. 17 Insurance Fund v.

Philip Morris, Inc., 23 F.Supp.2d 771 (N.D. Ohio 1998)

(Judge Gwin) (denying defendants’ motion to dismiss):

29 F.Supp.2d 801 (1998) (summary judgment granted

dismissing federal antitrust claims); bench order (Mar. 5,

RA4

1999) (directed verdict dismissing RICO claims); jury

verdict for defendants (Mar. 22, 1999), finding no fraud.

Seafarers Welfare Plan v. Philip Morris, Inc., 27

F.Supp.2d 623 (D. Md. 1998) (Judge Garbis) (RICO and

federal antitrust claims dismissed); notice of appeal

filed; appeal voluntarily dismissed (4th Cir. Sept. 14,

1998).

New Jersey Carpenters Health Fund v. Philip Morris,

Inc., 17 F.Supp.2d 324 (D.N.J. 1998) (Judge Barry) (fed-

eral antitrust claims dismissed); slip op. (May 11, 1999)

(dismissing RICO claims).

Stationary Engineers Local 39 Health & Welfare Trust

Fund v. Philip Morris, Inc., 1998 WL 476265 (N.D. Cal.

Apr. 30, 1998) (Judge Jensen) (RICO and federal

antitrust claims dismissed); appeal pending.

Steamfitters Local Union No. 420 Welfare Fund v. Philip

Morris, Inc., 1998 WL 212846 (E.D. Pa. Apr. 22, 1998),

aff’d, 171 F.3d 912 (3d Cir. 1999) (see RAI, supra).

Southeast Florida Laborers District Health & Welfare

Trust Fund v. Philip Morris, Inc., 1998 WL 186878 (S.D.

Fla. Apr. 13, 1998) (Judge Ryskamp) (RICO and federal

antitrust claims dismissed); notice of appeal filed; appeal

voluntarily dismissed (11th Cir. Oct. 20, 1998).

VOLUNTARY DISMISSALS OF RICO AND FED-

ERAL ANTITRUST CLAIMS BY PLAINTIFFS

Northwest Laborers-Employers Health & Security Trust

Fund v. Philip Morris, Inc., No. C97-849WD, slip op.

(W.D. Wash. Dec. 23, 1998) (Judge Dwyer) (denying

motion to dismiss); RICO and federal antitrust claims

voluntarily dismissed (May 25, 1999); 58 F.Supp.2d

1211 (1999) (granting summary judgment dismissing

remaining claims); appeal pending.

RAS

West Virginia Laborers’ Pension Trust Fund v. Philip

Morris, Inc., 1998 WL 964983 (S.D. W. Va. 1998)

(Judge Haden) (denying motion to dismiss); RICO and

federal antitrust claims voluntarily dismissed (June 28,

1999).

Kentucky Laborers District Council Health & Welfare

Trust Fund v. Hill & Knowlton, Inc., 24 F.Supp.2d 755

(W.D. Ky. 1998) (Judge Heyburn) (denying motion to

dismiss some RICO claims, but dismissing other RICO

claims and federal antitrust claims); remaining RICO

claims voluntarily dismissed (Oct. 5, 1999).

B.A.C Local No. 32 Insurance Trust Fund v. Philip Mor-

ris, Inc., No. 97-75675 (E.D. Mich.) (Judge Duggan);

RICO and federal antitrust claims voluntarily dismissed

(Sept. 18, 1998).

COURTS CERTIFYING FOR § 1292(b) APPEAL

Utah Laborers’ Health & Welfare Trust Fund v. Philip

Morris, Inc., No. 2:96CV 829B, slip op. (D. Utah Mar.

30, 1999) (Judge Benson) (denying motion to dismiss

RICO and federal antitrust claims); slip op. (Sept. 3,

1999) (granting motion for § 1292(b) certification);

leave to appeal granted (10th Cir. Nov. 22, 1999).

RA6

COURTS WHICH HAVE NOT DISMISSED RICO

AND FEDERAL ANTITRUST CLAIMS OR CERTI-

FIED PURSUANT TO § 1292(b)

Eastern District of New York (Judge Weinstein) in two

cases: (1) National Asbestos Workers Medical Fund v.

Philip Morris, Inc., 23 F.Supp.2d 321 (E.D.N.Y. 1998)

(denying motion to dismiss RICO claims); and (2) Blue

Cross and Blue Shield of New Jersey v. Philip Morris,

Inc., 36 F.Supp.2d 560 (E.D.N.Y. 1999) (denying motion

to dismiss in case brought by various Blue Cross/Blue

Shield entities). The following orders and decisions were

captioned jointly in both cases: 1999 WL 592669 (Aug.

2, 1999) and 1999 WL 706113 (Sept. 7, 1999) (denying

motions for summary judgment and to dismiss fourth

amended complaint); slip op. (Oct. 13, 1999) and 1999

WL 1000144 (Nov. 1, 1999) (denying § 1292(b) certifi-

cation); In re Philip Morris, Inc., No. 99-3058, order (2d

Cir. Oct. 26, 1999) (denying petition for mandamus);

petition for rehearing en banc filed Nov. 8, 1999.