# Opposition Brief — Philip Morris USA Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1614%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 561 U.S. 1025 ## Text i \U Nos. 09-976, 05 Jn the Supreme Court of the Gnited States §80 and 0971012 PHILIP MORRIS USA INGC., FKA PHILIP MORRIS, INC.., PETITIONER v. UNITED STATES OF AMERICA, ET AI R.J. REYNOLDS TOBACCO COMPANY, ET AL.. PETITIONERS dv). UNITED STATES OF AMERICA, ET AL. ALTRIA GROUP, INC., PETITIONER UNITED STATES OF AMERICA, ET AL. BRITISH AMERICAN TOBACCO (INVESTMENTS), LIMITED, PETITIONER U. UNITED STATES OF AMERICA, ET AL. LORILLARD TOBACCO COMPANY, PETITIONER " UNITED STATES OF AMERICA, ET AL. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUTT BRIEF FOR THE UNITED STATESIN OPPOSITION NEAL KUMAR KATYAI Acting Solicitor General ’ j ) s { ONS of Reeeor l ‘Additionai Counsel Listed on Inside Cover) i/ } r 1 Cenera MARK B. ST! ALISA B. KLEIN MARK R. FREEMAD GREGORY C.J. LISA Atte r7LCUS Department of Justice W a: hington, 8, : POSS0 OOO I SUPrerne (Cf Brive rs(a Mj p) 7 ; 7 Ls 107 go / QUESTIONS PRESENTED The petitions collectively present the following ques tions: 1. Whether the court of appeals correctly held that an unincorporated association of corporations and individuals may form an “enterprise” under 18 U.S.C 1961(4). 2. Whether the court of appeals was required to un dertake independent appellate review of the district court’s unchallenged findings of fact establishing fraud. 3. Whether the court of appeals correctly held that the First Amendment does not protect petitioners’ pub- lic statements because they were fraudulent. 1. Whether the court of appeals correctly held that petitioners’ statements about “light” and “low tar” ciga rettes were false, misleading, and not authorized by the Federal Trade Commission. ). Whether the court of appeals correctly rejected the argument that any reasonable likelihood of future violations was eliminated by the signing of the Master Settlement Agreement or, alternatively, by the passage of the Family Smoking Prevention and Tobacco Control Act. 6. Whether the court of appeals correct ly sustained relief prohibiting specified conduct and requiring Cor- rective statements. 7. Whether the court of appeals correctly concluded that British American Tobaeco (Investments) Limited, a foreign corporation, was subject to RICO when it used the interstate mails and wires and engaged in other conduct in the United States in furtherance of a scheme to defraud American consumers, and when it conspired with American companies to pursue that fraudulent scheme. 8. Whether the court of appeals correctly rejected Altria’s contention that it did not act with specific intent to defraud TABLE OF CONTENTS Opinions below ............. Per rrr res | We SS ae Jurisdiction ....... Baan etal cade eae ae a re se aoa, WE ane e ae eae iene rs ES ce oe nae dake oe eae ees Te A. An unincorporated association of corporations and individuals may form a RICO enterprise .... 15 B. The court of appeals was not required to undertake independent appellate review of thi district ecourt’s unchallenged findings of fact establishing fraud reer Tree ee Tee 20 C. Petitioners’ fraud was not protected by the First a re Prati et as .. 34 [). Petitioners’ statements about “light” and “low- tar” cigarettes were fraudulent and not authorized by the FTC ................ a 50) Ky. Neither the master settlement agreement nor the passage of the Family Smoking Prevention and T’obaeco Control Act eliminated al] likelihood of future violations. . Sa Pe re ry ee 52 fF’, ‘The court of appeals correctly upheld th: injunction prohibiting specified conduct and requiring corrective statements Reta 4 yi G. The court of appeals correctly rejected BATCo’s claim that this case involves an extraterritorial MECN GE TRIG AD oo cc ec ccc ucvccevcwecs: 62 H. The court of appeals correctly concluded that Altria acted with intent to defraud ...... 70 Conclusion ... Tate gia a wae are , C2 Appendix Transcript of oral argument (D.C. Cir Oct. 14, Z00O8) ... ia TABLE OF AUTHORITIES =A As il/fadda a 935 F.2d 475 (2d ¢ €1 lene 90? 15.S. 1005 (1991) 63 tra Grown, inc. v. Good, 129 Ct. 33a 2008) 2,32, 50 lme? ar 2 Ce Ma tT Les i | S. b15 (1 bd 16, 1s itlas Pile Dri ng Co. \ DiCon Fin. Co.. 886 F.2d 9&6 (Sth Cir. 1989) 29 / e c.orn (onsiun Giis [ [ State inc., 406 U.S. 4385 (19384) 4B. ta Boyle v. United State 129 Ss. Ct. 2237 (2009 pa m2 MILELEL Ph In hond & Indem. Ce 128 5. Ct 2131 (2008 10. 64. 65. 69.71 i UucKniar Cr \ / ru € Li COMM ed | [ » 41 (200 1s >urKeT Ran Corn. ( led Bu Kor Vet 713 F.2d 1272 (7th Cir. 1983 6 b LTYUESS V U/nated State s, 553 US. 124 (2008) LD Byrumv. Landreth, 566 F.3d 442 (5th Cir. 2009) 2 Carcrert Vv. Salazar, 1295. Ct. 10538 (2009) lo herichet \ Hold: V 12 2010) , ra monwealth Brands, Ine. v. United Stal 678 F. Supp. 2d 512 (W.D. Ky. 2010), appeal nC rp. Blue Cross & Blie Shield M YUU F.2d S82 (6th Cir. 1990 Cases—Continued: Doe Iv. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated, 395 F.3d 978 (2003) Durland v. United States, 161 U.S. 306 (1896) Eastern &.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) Environmental Def Fund, Inc. v. Massey, 986 F .2 528 (D.C. Cir. 1993) Falanga v. State Bar, 150 F.3d 1333 (11th Cir. 1998), cert. denied, 526 U.S. 1087 (1999) .... Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95 (1941) Ford v. United States, 273 U.S. 593 (1927) .. Groman v. Commissioner, 302 U.S. 82 (4937) Harte-Hanks Comme’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) Ha rtford-Empuire Co. v. United States, 323 U.S. 386 (1945) elvering Vv. Morgan's, dne., 293 U.S. 12 YS4) Hel g Mory l 293 US. 121 (1934 HJ. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) Horne v. Flores, 129 S. Ct. 2579 (2009) lbanez v. Flonda Dep't of Bus. & Prof. Reaulation } ) g : 512 U.S. 136 (1994) [illinois ex rel Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003) International Longshore men's Ass a7) +. Ph ilude lphia Marine Trade Ass'n. 389 U.S. 64 (1967) Kraft, Inc. v. FTC, 970 F.2d 311 (7th Cir. 1992), cert. denied, 507 U.S. 909 (1998) Cases—Continued: Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984) Levine v. CMP Publ’ns., Inc., 738 F.2d 660 (5th Cir 1984) Liquidation Comm’n of Banco Intercontinental vy. Renta, 530 F.3d 1339 (11th Cir. 2008) Limng Designs, Inc. v. ET. Dupont de Nemours & Co., 431 F.3d 353 (9th Cir. 2005), cert. denied, 547 U.S. 1192 (2006) McComb v. Jacksonville Paper Co., 336 U.S. 187 te McCullough vy. Suter, 7 McDonald v. Smith, 472 U.S. 479 (1985) Microsoft Corp. v. Odom, 552 U.S. 985 (2007) Miller v. Fenton, 474 U.S. 104 (1985) Mohawk Indus., Inc. v. Williams, 547 U.S. 516 (2006) National Conrm’n on Egg Nutrition v. FTC, 570 F.2d 157 (7th Cir. 1977), cert. denied, 439 U.S. 821 (1978) . NOW v. Scheidler, 510 U.S. 249 (1994) .... . > | Lat wa } - — — - Luie bold D4, DS, 5Y Ru e 65(d i) ‘ AQ Rule 65(d)(1)« 58 59 Viseellaneous ; Authority of the President to Name an Acting Attorney General, 31 O / p. Off. Legal Counsel _ (2007), http://www. justice.gov/olc/2007/authurity of-the-president-name-ag-070908. pdf H.R. Rep. No. 1549, 91st Cong., 2d Sess. (1970) 2 Jn the Supreme Court of the Gnited States No. 09-976 PHILIP MORRIS USA INC., FKA PHILIP MORRIS, INC.. PETITIONER 2 UINITED STATES OF AMERICA, ET AL. No. 09-977 R.3. REYNOLDS TOBACCO COMPANY, ET AL:. PETITIONERS « LUINITED STATES OF AMERICA, ET AL. No. 09-979 ALTRIA GROUP, INC., PETITIONER ) No. 09-980 $RITISH AMERICAN TOBACCO (INVESTMENTS), LIMITED, PETITIONER dv). UNITED STATES OF AMERICA, ET AL. No. 09-1012 LORILLARD TOBACCO COMPANY, PETITIONER v). UNITED STATES OF AMERICA, FT AL. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT Of COLUMBIA CIRCUTT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. Lla- 100a) is reported at 566 F.3d 1095. The opinion of the district court (Pet. App. 101a-2181a) is reported at 449 F’. Supp. 2d 1. JURISDICTION The judgment of the court of appeals was entered on May 22, 2009. Petitions for rehearing were denied on September 22, 2009 (Pet. App. 2182a-2815a). On No- vember 10, 2009, the Chief Justice extended the time within which to file petitions for a writ of certiorari to and including February 19, 2010, and the pctitions were filed on that date. This Court’s jurisdiction is invoked under 28 U.S.C. 1254(1). STATEMENT The United States brought this action under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., alleging that petitioners engaged in a coordinated scheme to deceive Americans about the addictiveness and health risks of cigarcttes, thereby enhancing petitioners’ cigarette sales and asso- ciated profits. The district court held a nine-month bench trial, admitting nearly 14,000 exhibits and hearing live testimony from 84 witnesses and written testimony from 162 witnesses. Pet. App. 8a. The voluminous evi dentiary record includes large numbers of petitioners’ internal documents, see, e.g., id. at 36a-39a, as well as testimony from numerous former tobacco industry em- ployees and participants that detail petitioners’ fraudu- lent behavior, e.g., id. at 35a-36a. Based on that record, the district court issued a final decision documenting the “overwhelming evidence” that petitioners conducted and conspired to conduct the af- fairs of a RICO enterprise through a pattern of racke- teering activity, in violation of 18 U.S.C. 1962(e) and (d), by engaging in a decades-long scheme to defraud that petitioners executed in part through their use of mail and wire communications. Pet. App. 103a, 114a-115a, 1887a; see 2d. at 1885a-2004a. The court’s opinion, which Spans nearly an entire volume of the Federal Supple- ment, includes more than 4000 enumerated findings of fact and details the affairs of petitioners’ enterprise and petitioners’ pattern of mail and wire fraud. See 7d. at 119a-1885a. The district court found, and the court of appeals unanimously affirmed, that the government proved that petitioners participated in the conduct of an enterprise and “knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent state- ments, representations, and promises.” Pet. App. 1888a; id. at 5a-6a, 30a. “Put more colloquially, and less legal- istically, over the course of more than 50 years, [peti- tioners] lied, misrepresented, and deceived the Ameri- can public, including smokers and the young people they avidly sought as ‘replacement smokers,’ about the devas- tating health effects of smoking and environmental to- bacco smoke, they suppressed research, they destroyed documents, they manipulated the use of nicotine so as to increase and perpetuate addiction, they distorted the truth about low tar and light cigarettes so as to discour age smokers from quitting, and they abused the legal system in order to achieve their goal.” /d. at 1887a- &88a. As the court of appeals observed, a summary of peti- tioners’ conduct “cannot adequately present the volumes of evidence underlying the district ecourt’s findings of fact.” Pet. App. 37a. “|'l'|he evidentiary picture must be viewed in its totality in order to fully appreciate how massive the case is against [petitioners], how irresponsi- ble their actions have been, and how heedless they have been of the public welfare and the suffering caused by” their fraudulent conduct. /d. at 112a. The following summary thus provides but an outline of the nature and history of the RICO enterprise as found by the district court and affirmed by the D.C. Circuit. 1. In 1953, petitioners’ RICO enterprise was estab- lished when the presidents of Philip Morris, Reynolds, Brown & Williamson, Lorillard, and American met to develop a Joint response to the growing public concern about the health risks of smoking. Pet. App. 122a-127a, 19238a-1925a. The companies, normally rivals in the cig- arette market, agreed that no manufacturer would “seek a competitive advantage by inferring to its public that its product is less risky than others,” 2d. at 124a, and jointly issued a full-page advertisement entitled “A Frank Statement to Cigarette Smokers” that they pub- lished in newspapers nationwide on January 4, 1954. /d. at 128a-132a. “The Frank Statement set forth the indus- try’s ‘open question’ position that it would maintain for more than forty years—that cigarette smoking was not a proven cause of lung cancer; that cigarettes were not injurious to health; and that more research on smoking and health issues was needed.” /d. at 129a. At its core, petitioners’ scheme was designed to “mis- lead|] consumers in order to maximize |petitioners’] rev- enues by recruiting new smokers (the majority of whom are under the age of 18), preventing current smokers from quitting, and thereby sustaining the industry.” Pet. App. 2011a; see zd. at 1888a. The goal of the “open question” strategy, as a senior Philip Morris executive later explained, was to create the impression of scientific uncertainty and thereby “give smokers a psychological! crutch and a self-rationale to continue smoking.” /d. at 417a. The companies declared in the Frank Statement that “[w]Je accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business”; asserted that “[wlje believe the prod- ucts we make are not injurious to health”; and promised to fund objective research into “all phases of tobacco use and health” by scientists “of unimpeachable integrity and national repute.” /d. at 13la-132a. Yet at the time the companies issued the “rank Statement,” they already had “documented a large num- ber of known carcinogens contained in cigarette smoke.” Pet. App. 396a. Over the ensuing decades, petitioners developed a sophisticated understanding of the toxicity and addictiveness of cigarettes that outpaced that of the public, regulators, and public health authoritics. /d. at 9a-lla. As the public’s knowledge increased, the compa- nies intensified the level of their deceptions. The dis- trict court, as the court of appeals explains, catalogued “countless examples of deliberately false statements” by petitioners regarding the health effects of smoking and secondhand smoke, the addictiveness of nicotine and pe- titioners’ manipulation of nicotine delivery to create and sustain addiction, and the claimed health benefits of “light” cigarettes. /d. at 45a. The district court found that petitioners’ “efforts to deny and distort the scien- tific evidence of smoking’s harms are demonstrated by not only decades of press releases, reports, booklets, newsletters, television and radio appearances, and scien- tific symposia and publications, but also by evidence of their conecerted| | efforts to attack and undermine the 6 studies in mainstream scientific publications such as the Reports of the Surgeon General.” /d. at 1894a. In addi- tion, “[a]s their internal documents reveal, | petitioners | engaged in massive, sustained, and highly sophisticated marketing and promotional campaigns to portray their light brands as less harmful than regular cigarettes.” id. at 1904a. Petitioners “have known for decades that filtered and low tar cigarettes do not offer a meaningful reduction of risk, and that their marketing which em- phasized reductions in tar and nicotine was false and misleading.” /d. at 1905a-1906a. Petitioners executed their scheme to defraud by uti- lizing an array of jointly created entities, the most visi- ble of which was the Tobacco Institute (TI), which served for four decades as “the leading public voice of [petitioners].” Pet. App. 195a; id. at 119a. Petitioners jointly financed TI’s operations through payments ex- ceeding $600 million, zd. at 183a, and their chief execu- tive officers served on Tl’s Executive Committee, 2d. at 180a, which had the “‘final voice on TI matters’ and To- bacco Institute statements.” /d. at 216a (citation omit ted). TI “created, issued, and disseminated press re- leases, public statements, advertisements, brochures, pamphlets, and other written materials on behalf of [pe- titioners]” that denied “any link between smoking and disease,” denied that “nicotine was addictive,” denied that “cigarette companies marketed to youth,” denied that secondhand smoke “posed a health risk,” and “diseredit{ed] scientists and public health officials who took a different position on these issues.” /d. at 196a. As internal TI documents admit: “Our basic position in the cigarette controversy is subject to the charge, and mayhe subject to a finding, that we are making false or misleading statements to promote the sale of ciga- rettes.” Jd. at 186a. The Tobacco Institute was but one part of a “network of interlocking organizations” that petitioners created to maintain unity and discipline. Pet. App. 1777a. The In- stitute’s Executive Committee emphasized internally that it was “of prime importance that the industry main- tain a united front and that if one or more companies were to conduct themselves as a matter of self interest, particularly in advertising, obvious vulnerability would be the result.” /d. at 218a (citation omitted). To that end, the International Committee on Smoking I[ssues (ICOS]) and its successor organizations, the Interna tional Tobacco Information Center (INF OTAB) and the Tobacco Documentation Centre (TDC), were established to enable Philip Morris, Reynolds, British American Tobacco (BATCo) and other tobacco companies to “meet discreetly to develop a defensive smoking and health strategy for major markets,” including the United States. /d. at 1619a (citation omitted); see also id. at 320a-335a. BATCo acknowledged internally that “[t]he aim of ICOSI is defensive research aimed at throwing up a smoke screen and to throw doubt on smoking research findings which show smoke causes diseases.” J/d. at 1624a (citation omitted). The members of this group included Philip Morris, Reynolds, Lorillard, BATCo and TI, as wetl as foreign tobacco companies. /d. at 327a- 328a. Petitioners also formed a variety of organizations to create what they termed “marketable science.” [et. App. 1687a. For example, through the Council for To- bacco Research (CTR) and Lawyers’ Special Accounts, petitioners jointly finaneed research programs that were directed by company lawyers and calculated to yield R favorable results. /d. at 240a-275a. Petitioners regu- larly cited the conclusions of the scientists funded through these programs as if they were the objective results of disinterested research, without revealing that the scientists had, in fact, been funded by the industry. Id. at 195a. Petitioners likewise created organizations that ap- peared to have no connection to the industry, but were in fact designed to generate purportedly independent evidence for use as “ammunition” in manipulating public opinion. Pet. App. 1614a (citation omitted). For exam- ple, petitioners created the Center for Indoor Air Re search (CIAR) in a manner designed “to ‘hide’ industry involvement,” zd. at 1652a (citation omitted), and CIAR’s influential papers on secondhand smoke failed to dis- close the organization’s connection to the tobacco indus- try. /d. at 1651la-1653a. Similarly, Indoor Air Interna- tional (LAI) held itself out as “a ‘learned society’ dedi- cated to ‘promoting indoor air quality,’” id. at 1695a- 1696a (citation omitted), while in reality it was funded by Philip Morris and BATCo and run by the law firm of Covington & Burling, zd. at 1695a-1698a, which served as legal counsel! for TI and the industry. /d. at 181a, 214a. “All billing was processed through Covington & Burling to avoid any direct connection to the industry.” Id. at 1695a.' The district court found that attorneys actively facilitated and “played an absolutely central role” in petitioners’ illegal activity “[aJt very stage” by, inter alta, “direct[ing] scientists as to what research they should and should not undertake”; “vett[ing] scientific research papers and reports”; “hid{ing| the relationship between [scientific wit- nesses] and the industry”; “devis[ing] and carr| ying] out document de- struction policies”; and taking “shelter behind baseless assertions of the attorney client privilege.” Pet. App. 106a = 2. In 2006, after developing an immense trial record, the district court held that petitioners had participated in the conduct of the affairs of an enterprise through a pattern of racketeering activity, and conspired to do so, in violation of 18 U.S.C. 1962(¢c) and (d). Pet. App. 1885a, 1995a. The court determined that petitioners’ enterprise had the common purpose of preserving and expanding the cigarette market through fraud, zd. at 1923a-1925a; that it operated through formal and infor- mal organizations, zd. at 1925a-1928a; and that it has functioned as a continuous unit since 1953, zd. at 1928a- 1930a. The district court specifically found that petitioners “knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent state- ments, representations, and promises.” Pet. App. 1888a. It explained that, “[i]Jn the majority of instances, the authors of the fraudulent statements alleged as Racke- teering Acts were executives, including high level sci- entists—CEQOs, Vice Presidents, Heads of Research & Development, not entry level employees—at each of the [petitioner] companies who would reasonably be ex- pected to have knowledge of the company’s internal re- search, public positions, and long term strategies.” /d. at 1984a. The court found it “absurd to believe that the highly-ranked representatives and agents of these cor- porations and entities had no knowledge that their pub- lic statements were false and fraudulent,” explaining that the “Findings of Fact are replete with examples of C.E.0.s, Vice-Presidents, and Directors of Research and Development, as well as [petitioners’] lawyers, making statements which were inconsistent with the internal 1U knowledge and practice of the corporation itself.” /d. at 1890a-1891a. Based on its findings about the profitability of peti- tioners’ participation in the enterprise and the sophisti- cation and resilience of their scheme to defraud, the dis- trict court found a reasonable likelihood of future viola- tions. Pet. App. 2007a-2021a. The court accordingly granted injunctive relief enjoining petitioners from com- mitting further acts of racketeering or fraud relating to the marketing of cigarettes, 7d. at 2069a-2070a; from reconstituting specified organizations, td. at 2069a; and from making express or implied health claims about cig- arettes, including use of descriptors such as “light” or “low tar,” 7d. at 2070a-2071a. The court’s order requires that petitioners make corrective statements in specified media, 7d. at 2071a-2077a; maintain publicly accessible document depositories, 7d. at 2077a-2084a; and disclose certain marketing data to the government, 2d. at 2084a. 3. Petitioners appealed, challenging the district court’s hability ruling and injunctive relief. In their ap- pellate briefs, petitioners made almost no mention of the district court’s factual findings and presented no argu- ments purporting to show that any such findings were erroneous. At oral argument, counsel representing all petitioners (App., 7xfra, la) represented that, although petitioners did not “agree with the fact findings of the “ The electronic versions of the government’s appellate briefs on DVD-ROMs explain the evidentiary record in detail (e.g., Gov't C.A. Br. 5-58) and include an embedded hyperlink for every record citation, enabling the reader to display immediately the relevant page of the record. A similar DVD version of the district court’s opinion also in- cludes an embedded hyperlink for each of its numerous record citations Cf. Order, No. 06-5267 (D.C. Cir. July 28, 2008) (directing clerk to file lodged DVDs) 1] district court,” “we’re bringing legal challenges to the court” and “haven’t challenged * * * any fact finding.” Id. at 5a, 7a. 4. In May 2009, the court of appeals unanimously affirmed in part, vacated in part, and remanded. [et. App. la-100a. The court’s decision affirmed the district court’s liability findings in all significant respects, but remanded for further proceeding on “four discrete is- sues.” Jd. at 6a, 100a. The court of appeals rejected petitioners’ threshold argument that petitioners could not be liable under RICO for participating in the conduct of the affairs of an “enterprise” because, in petitioners’ view, RICO “pro- vides an exclusive list of possible enterprises that covers [only] groups of irdividuals associated in fact, not mixed groups of individuals and corporations associated in fact.” Pet. App. 18a. The court held that the defini- tion of “enterprise” in 18 U.S.C. 1961(4) is non-exhaus- tive,and includes groups of corporations associated in fact (like petitioners). Pet. App. 18a-20a, 28a. The court reasoned that petitioners’ contrary argument was incon- sistent both with RICO’s text and the uniform decisions of all ten courts of appeals to have addressed the ques- tion, and that RICO’s broad statutory understanding of “enterprise” ensures that sophisticated racketeers can- not evade liability by employing the corporate form. /d. at 18a-29a. The court of appeals concluded that other purported legal challenges were not properly presented. For ex ample, although the court indicated that it shared peti- tioners’ doubt that a corporation’s specific intent to de- fraud could properly be established by aggregating the knowledge of disparate corporate employees under a theory of “collective intent,” it did “not pass on the mer- its of such astandard * * * because the district court relied on a permissible view of specific intent.” Pet. App. 33a, 4la. The court explained that the “over- whelming indirect and circumstantial evidence was suffi- cient to allow the district court to reasonably infer that the high level executives, including ‘CEOs, Vice Presi- dents, [and] Heads of Research & Development’ for [pe- titioners] knew about their respective companies’ ‘inter- nal research, public positions, and long term strategies’” and “then made, caused to be made, and approved public statements contrary to this knowledge.” /d. at 39a (cita- tion omitted). The court of appeals rejected petitioners’ First Amendment defenses, concluding that petitioners’ public statements were “clearly and deliberately false” and therefore fell outside the scope of protected speech. Pet. App. 43a-45a. The court explained that it was “not dealing with accidental falsehoods, or sincere attempts to persuade,” and that “[petitioners} knew of their fal- sity at the time and made the statements with the intent to deceive.” Jd. at 45a. The court similarly held that “Noerr-Pennington protection” for attempts to per- suade the legislature or executive to take particular ac- tion “does not apply” because the doctrine does not. ex- tend to “deliberately false or misleading” statements and petitioners’ racketeering acts were themselves “in- tended to defraud consumers.” /d. at 44a, 46a. The court rejected petitioners’ contention that the Federal Trade Commission (FTC) had “blessed their use of labels such as ‘light’ and ‘low tar’” cigarettes, ex- plaining that the argument was foreclosed by this Court’s decision in Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) (Altria). Pet. App. 46a-47a. In addition, the court emphasized that the district court “did not find 1s liability solely based on the use of descriptors such as ‘light’ and ‘low tar’”; rather, the district court permissi- bly found that “( petitioners] orchestrated ‘highly sophis- ticated marketing and promotional campaigns to portray their light brands as less harmful than regular ciga- rettes,’” despite their knowledge of the falsity of that claim. /d. at 47a-48a. The court further concluded that the Master Settle- ment Agreement (MSA) executed in separate lawsuits by the tobacco companies and several States did not eliminate the likelihood of petitioners’ future violations. Pet. App. 61a-67a. It explained that petitioners “began to evade and at times even violate the MSA’s prohibi- tions almost immediately after signing the agreement” and that petitioners’ failure to alter their conduct after the MSA amply warranted the district court’s conclusion that.future violations were likely. /d. at 64a, 7a. The court rejected challenges to liability that were specific to petitioners Altria and BATCo, Pet. App. 55a 60a, and it rejected most of petitioners’ challenges to the district court’s injunctive order. The court explained that the injunctions “sufficiently specify the activities enjoined,” id. at 73a, and that the district court permis- sibly required that corrective statements appear in the same media that petitioners used “to promulgate false smoking and health messages.” /d. at 83a.” The court vacated the finding of liability as to CTR and TI because those entities had been dissolved pursuant tothe MSA. Pet. App. 100a. The court also vacated certain minor provisions of the injunction and remanded for reconsideration of those “discrete issues,” such as the application of the injunction to petitioners’ overseas subsidiaries and clarification of the requirements for point-of-sale displays. /bid. The vanel also rejected the government’s cross-appeal on remedies, /d. at J 14 5. Petitioners filed five separate rehearing petitions, all of which the court of appeals denied without dissent. Pet. App. 2183a. Meanwhile, petitioners Philip Morris, Reynolds, and Lorillard filed a “Suggestion Of Mootness And Motion For Partial Vacatur,” arguing that the June 2009 pas- sage of the Family Smoking Prevention and Tobacco Control Act (FSPTCA), Pub. L. No. 111-31, Div. A, 123 Stat. 1776, had rendered aspects of the injunction moot. The government’s opposition explained that the FSPTCA did not render the injunction moot and that any request to modify the injunction in light of the legis- lation should be directed to the district court in the first instance. Gov’t Opp. to Suggestion of Mootness 3-4, 9, 11-12. ‘The court of appeals denied the suggestion of mootness and vacatur motion without opinion. ARGUMENT Collectiveiy, petitioners suggest that nearly every aspect of the unanimous decision of the court of appeals presents a significant legal error warranting certiorari. That suggestion is without merit. The D.C. Circuit cor- rectly resolved the only pure question of law the peti- tioners presented in a ruling that reflects the uniform judgment of all ten courts of appeals to have considered the issue. The remaining legal issues that petitioners now raise are either not properly presented on the re- cord in this case, not subject to any conflict, or otherwise unworthy of review. The petitions should therefore be denied. 92a-49a. The government's petition for a writ of certiorariin No. 09-978 seeks review of the remedial aspect of the court's judgment 15 A. An Unincorporated Association Of Corporations And Individuals May Form A RICO Enterprise Petitioners Philip Morris and Lorillard contend that certiorari is warranted because the court of appeals pur- portedly erred in holding that a RICO “enterprise” may consist of corporations and individuals associated in fact. 09-976 Pet. (PM Pet.) 24-28: 09-1012 Pet. (Lorillard Pet.) 11-28. In their view, 18 U.S.C. 1961(4) “provides an ex- clusive list of possible enterprises” and that list includes “sroups of individuals associated in fact” but “not mixed groups of individuals and corporations associated in fact.” Pet. App. 18a. That contention lacks merit. RICO’s text and the reasoning of Boyle v. United States, 1298. Ct. 2237 (2009), demonstrate that RICO provides non-exhaustive examples of an “enterprise” that illus- trate, but do not restrict, the ordinary meaning of the term. All ten courts of appeals to have confronted the question have likewise concluded—without as much as a dissenting opinion from even one judge—that corpo- rate entities associated in fact may forma RICO enter prise. No further review is warranted. l. a. Congress routinely defines statutory terms in one of two ways. Exhaustive statutory definitions— which state precisely what the defined term “means” establish a self-contained meaning for the term that “excludes any meaning that is not stated.” Burgess v. United States, 553 U.S. 124, 130 (2008) (citation omit ted). Terms so defined take their meaning from the def- inition Congress provides in statute instead of the “term’s ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000). By contrast, non-exhaustive defini- tions merely state that the defined term “includes” cer- tain enumerated things. In that context, “the term ‘in- cludi[es]’ is not one of all-embracing definition, but con- 16 notes simply an illustrative application of the general principle,” Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941), that itself builds upon the “ordi- nary connotation of the [underlying] term.” Groman v. Commissioner, 302 U.S. 82, 88 (1937); id. at 85-86; American Sur. Co. v. Marotta, 287 U.S. 513, 517 (1933) (the term “‘include’ is frequently, if not generally, used as a word of extension or enlargement” in definitional provisions). RICO’s definitional section, 18 U.S.C. 1961, provides a non-exhaustive definition of “enterprise.” Section 1961(4) states that the term “‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. 1961(4) (emphasis added). As the court of appeals ex- plained, Congress’s “use of the word ‘includes’ indicates that RICO’s list of ‘enterprises’ is non-exhaustive.” Pet. App. 25a-26a. The term therefore encompasses groups that fall within the ordinary meaning of “enterprise” such as “a group of individuals, corporations, or partner ships associated in fact”—even though Section 1961(4) does not “expressly mention[] this type of association.” Id. at 19a; see id. at 21a. The broader context of Section 1961 confirms “the non-exhaustive nature of ‘includes’”’ because Congress chosc in that provision to “alternat/e] between the words ‘means’ and ‘includes’ to introduce the section’s various definitions,” thereby “signalfing] its intent to distinguish between [the] exhaustive and non- exhaustive lists” defining RICO’s statutory terms. /d. at 26a. One month after the court of appeals issued its deci- sion, this Court confirmed that Section 1961(4)’s defini- tion of “enterprise” is non-exhaustive. In Boyle, this 17 Court made clear that Section 1961(4)’s “obviously broad” “enumeration of included enterprises” does “not purport to set out an exhaustive definition of the term” and does “not specifically define the outer boundaries of the ‘enterprise’ concept.” 1298. Ct. at 2243 & n.2. Like the court below, Boyle concluded that Congress’s dispa- rate use of “means” and “includes” in RICO’s defini- tional section demonstrates that the inclusive definition of “enterprise” retains the “ordinary meaning” of the term and therefore “does not foreclose the possibility that the term might include” other types of enterprises other than the “specifically enumerated” ones. /d. at 2243 n.2 (citing the Court’s similar interpretation of Sec- tion 1961 in H./. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 238 (1989)). Boyle therefore reasoned that the meaning of “enterprise” reflected in “ordinary usage” informs the meaning of the term in RICO and held, based on that ordinary meaning, that an association in fact of individuals “must have a purpose” to qualify as an “enterprise.” Jd. at 2244. Boyle’s reasoning is fatal to Lorillard’s contention (Pet. 14-18) that Section 1961(4) exhaustively describes the entitics that may constitute an “enterprise.” In re solving the question whether “an association-in-fact en- terprise must have an ascertainable structure beyond that inherent in the pattern of racketeering activity,” Boyle, 129 S. Ct. 2244 (internal quotation marks and citation omitted), the Court expressly held that Section 1961(4) dues not provide “an exhaustive definition” of “enterprise” or “define the outer boundaries” of the term. /d. at 2243 & n.2. If Lorillard were correct that RICO’s text provides a wholly exhaustive definition, then the ordinary meaning of “enterprise” would have been irrelevant and the (purportedly exhaustive) defini- 1s tional text in Section 1961(4) would have controlled. See Carhart, 5380 U.S. at 942 (citing cases). The Court in- stead interpreted “enterprise” based on the “meaning of the term in ordinary usage” as reflected in dictionary definitions precisely because the definitional text was not itself exhaustive. See Boyle, 129 S. Ct. at 2244. The court of appeals’ decision also follows from the logic of several decisions of this Court that have repeat- edly drawn a distinction between “means” and “in- cludes” when Congress has alternated between those terms to introduce statutory definitions. Those deci- sions have consistently found that such “disparate inclu- sion or exclusion” (Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted)) to reflect an intent to provide a non-exhaustive definition of those terms that Congress has defined to “inelude” specifically enumer- ated items. See, e.g., Boyle, 129 S. Ct. at 2243 n.2 (con- struing Section 1961(4)); see also, e.g., United States v. New York Tel. Co., 434 U.S. 159, 169 & n.15 (1977); Helvering v. Morgan’s, Inc., 293 U.S. 121, 125 n.] (1934); American Sur. Co., 287 U.S. at 517; ef. HJ. Ine., 492 U.S. at 237 (concluding that the definitional use of “require” instead of “mean” in Section 1961(5) reflects that the scope of the defined term is “broad”). Lorillard asserts (Pet. 16) that Section 1961’s other definitions beginning with “includes” are “exhaustive” even though it offers argument only for the definition of “Attorney General.” Even that definition, however, is not “exhaustive.” The enumeration in Section 1961(10) does not, for example, specifically include a person se- lected by the President to perform temporarily “the functions and duties” of the Attorney General, 5 U.S.C. 3345(a)(2) and (3), or an independent counsel] that could have been appointed by a court to prosecute RICO viola- 19 tions, 28 U.S.C. 5938(b), 599 (expired 1999), neither of whom are “designated by the Attorney General” under the definition. See 18 U.S.C. 1961(10); ef. Authority of the President to Name an Acting Attorney General, 31 Op. Off. Legal Counsel __ (2007), http://www.justice. gov/ole/2007/authority-of-the-president-name-ag- 070908.pdf. Lorillard makes no attempt to demonstrate that any other definition in Section 1961 that begins with “includes” is exhaustive, but simply quotes (Pet. 16) the definition of “person” and “documentary material” with- out elaboration. Based on Congress’s direction in RICO that courts may issue appropriate orders, “including, but not limited to,” three categories of orders, 18 U.S.C. 1964(a), Loril- lard also contends (Pet. 16-17) that Congress used the term “includes” differently in Section 1961 because Con- gress omitted the phrase “but not limited to.” But that supplementary language in Section 1964(a)—which is not a definitional section—-simply emphasizes the breadth of the appropriate remedial orders that it au- thorizes. Section 1961 had no need for such emphasis because it employs “includes” in a significantly different context: the juxtaposition of “means” and “includes” in that section itself makes clear that the inclusive defini tions are non-exhaustive. See Pet. App. 27a. Lorillard’s reliance (Pet. 17) on Carciert v. Salazar, 129 S. Ct. 1058 (2009), is also misplaced. Although Careierz interpreted a single, free-standing provision defining “Indian” to “include” certain categories of Indi ans as comprehensively defining the term, 25 U.S.C. 479, it did so because other statutory provisions specifically showed that Congress recognized that the definition did not “encompass tribes other than those” in the statutory enumeration. 1298S. Ct. at 1066. And, unlike RICO, the 20 definition in Carcierd does not disparately employ “means” and “includes” to define different statutory terms, reflecting Congress’s intent to enact exhaustive and non-exhaustive definitions. b. Because the ordinary meaning of “enterprise” is not restricted by Section 1961(4)’s non-exhaustive “enu- meration of included enterprises,” Boyle, 129 S. Ct. at 2243 & n.2, Lorillard’s heavy emphasis on that enumera- tion is misplaced. As Boyle explains, the ordinary mean- ing of “enterprise” encompasses “a ‘venture,’ ‘undertak- ing,’ or ‘project.’” /d. at 2244 (citation omitted). And Lorillard’s own arguments show that “a group of corpo- rations associated in fact” constitute, in common par- lance, just such a “joint venture[].” See Lorillard Pet. 26. So long as a joint venture by corporate entities re- flects a common “purpose,” embodies “relationships among those associated with the enterprise,” and has “longevity sufficient to permit those associates to pursue the enterprise’s purpose,” Boyle, 129 8S. Ct. at 2244, it qualifies as an “enterprise” under RICO. Philip Morris resists the conclusion that the “ordi- nary meaning” of enterprise can include a group of cor- porate entities, asserting that “a group of unaffiliated corporations informally cooperating in an effort to influ- ence government policy” would not be thought of as an “enterprise.” PM Pet. 26-27. But that assertion (which reflects a factual premise far removed from this case) cannot be squared with this Court’s explanation that “an association-in-fact enterprise is simply a continuing unit that functions with a common purpose.” Boyle, 1298. Ct. at 2245. Even an “‘informal’ group” without much “structure” can constitute an enterprise if its members coordinate their actions to pursue a common objective. lboed. 21 ¢c. Petitioners’ restrictive interpretation of Section 1961(4) disregards this Court’s repeated admonition that “RICO is to be read broadly.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 (1985); aecord Boyle, 129 S. Ct. at 2243 (citing cases). Congress followed a “pattern * * * utilizing terms and concepts of breadth” in RICO, including in the statute’s inclusive definition of “enter- prise.” Russello, 464 U.S. at 21; see also NOW vy. Scheidler, 510 U.S. 249, 257 (1994) (“RICO broadly de- fines ‘enterprise’”’); United States v. Turkette, 452 U.S. 576, 580-581, 583 (1981) (construing “enterprise”). If there were any doubt on that score, Congress’s express statutory direction that RICO be “liberally construed to effectuate its remedial purposes” confirms the “expan- Sive” scope of its “coneept of an association in fact.” Boyle, 1298. Ct. at 2243 (quoting RICO, Pub. L. No. 9t- A452, § 904(a), 84 Stat. 947); see also S. Rep. No. 617, 91st Cong., Ist Sess. 158 (1969) (“enterprise” is defined “to include associations in fact, as well as legally recognized associative entities,” and that “infiltration of any asso- clative group by any individual or group capable of hold- ing a property interest can be reached”); H.R. Rep. No. 1549, 91st Cong., 2d Sess. 56 (1970) (same). The broad scope of the enterprise concept reflects RICO’s origins. “RICO was an aggressive initiative to supplernent old remedics and develop new methods for fighting crime.” Sedima, 473 U.S. at 498. And, while Congress undoubtedly in*#iced the statute to be used to combat organized crime. °° ess for cogent reasons chose to enact a more geiciral statute, one which, al- though it had organized crime as its focus, was not lim- ited in application to organized crime.” H.J. Jne., 492 U.S. at 248; aceord NOW, 510 U.S. at 260. RICO aecord ingly targets criminal associations that “extend well be- 22 yond | those traditionally grouped under the phrase ‘or- ganized crime’” in order to target “a wide range of crim- inal activity, taking many different forms” and involving “a broad array of perpetrators operating in many differ- ent ways.” H.J. Inc., 492 U.S. at 243, 248-249. Congress’s decision to provide a broad, non exhaustive definition of “enterprise” capturing the full range of associational forms that might be employed by sophisticated criminals is consistent with its intent that RICO be “a weapon against the sophisticated racketeer as well as (and perhaps more than) the artless.” Unzted States v. Perholtz, 842 F.2d 343, 353 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988) (rejecting petitioners’ inter- pretation of “enterprise” for its “bizarre result[s]”). As the D.C. Circuit explained, an association of individuals and legal entities that exhibits common purpose, organi- zation, and continuity is plainly among “the kinds of en- tities Congress had in mind.” Pet. App. 28a (emphasis omitted) (citing Turkette, 452 U.S. at 583). Congress had no reason to doubt that corporations, labor unions, partnerships, or other legal entities would be capable of entering into the sort of dangerous de facto alliances that characterize RICO enterprises. See id. at 24a (ex- plaining that, on petitioners’ theory, “racketeers who would otherwise constitute an association-in-fact might evade RICO’s grasp by virtue of their ability to operate through corporations and establish complex networks of companies, kickbacks, and contracts to achieve their elicit ends’). As the Seventh Circuit observed: Surely if three individuals can constitute a RICO enterprise, as no one doubts, then the larger associa- tion that consists of them plus entities that they con- trol can be a RICO enterprise too. Otherwise while three criminal gangs would each be a RICO enter- 23 prise, a loose-knit merger of the three, in which each retained its separate identity, would not be, because it would not be an association of individuals. That would make no sense. United States v. Masters, 924 F.2d 1362, 1366 (7th Cir.), eert. denied, 500 U.S. 919, and 502 U.S. 823 (1991); United States v. Huber, 603 F.2d 387, 393-394 (2d Cir. 1979) (petitioners’ reading would “perversely insulate the most sophisticated racketeering combinations from RICO’s sanctions’), cert. denied 445 U.S. 927 (1980); see also McCullough v. Suter, 757 F.2d 142, 143-144 (7th Cir. 1985) (“[Wle cannot believe that Congress would have wanted gangsters to be able to escape the clutches of section 1962(c) just by avoiding the corporate form.”). d. Lorillard contends that vagueness concerns, prac- tical considerations, and the rule of lenity, should “resolv[e any] ambiguity” in Section 1961(4) by limiting enterprises to those expressly listed. Lorillard Pet. 20; id. at 20-25. But Section 1961(4) is an inclusive, not ex- clusive, definition whose text employs capacious, not ambiguous terms. Congress specifically directed that RICO’s terms be “liberally,” not narrowly, construed to effectuate the statute’s remedial goals, Boyle, 129 S. Ct. at 2243, and this Court has declined repeated requests to narrow the scope of RICO’s “enterprise” concept with restrictions that themselves are not found in the statu- tory text. See, e.g., id. at 2245-2246 (declining to impose limits that are not “fairly inferred from the language of the statute”); NOW, 510 U.S. at 260-261 (refusing to adopt economic-motive limitation); 7urketie, 452 U.S. at 580-581 (declining to limit “enterprise” to legitimate associations because RICO imposes “no restriction upon the assuciations embraced” by the term and because Congress could have, but did not, “narrow[] the sweep of 24 the definition by inserting” additional text). ‘The Court has repeatedly rejected similar appeals to narrow RICO’s provisions based on the rule of lenity. Boyle, 129 S. Ct. at 2246-2247; see also NOW, 510 U.S. at 262; Sedima, 473 U.S. at 492; Turkette, 452 U.S. at 588 n.10; Russello, 464 U.S. at 29. e. Petitioners’ remaining contentions largely reflect policy arguments of the kind this Court has rejected “in favor of the clear but expansive text of the statute,” Boyle, 1298. Ct. 2246-2247 (collecting cases). Lorillard asserts that the “purpose of RICO” is to protect corpo rations from being “victimized by organized crime,” not “to combat corporations engaged in joint criminal activ- ity.” Lorillard Pet. 18-19 (emphases omitted). But as the court of appeals explained, there is no dispute that corporations can be RICO defendants under the stat ute’s plain terms. Pet. App. 2la (discussing 18 U.S.C. 1961(3), 1962(c)). Indeed, this Court has emphasized that “[RICO’s] use ‘against respected businesses alleg- edly engaged in a pattern of specifically identified crimi- nal conduct is hardly a sufficient reason for assuming that the provision is being misconstrued.’” A.J. /nc., 192 U.S. at 249 (quoting Sedima, 473 U.S. at 499). Quite the contrary, the “ability to use RICO against busi- nesses engaged in a pattern of criminal acts” is a result that itself is “inherent in the statute as written.” /drd. (quoting Sedima, supra); see also Sedima, 473 U.S. at 499 (explaining that the fact that plaintiffs have brought “fraud cases * * * against” nominally legitimate busi- nesses under RICO “does not demonstrate ambiguity” in the statute, “[iJt demonstrates breadth”) (citation omitted). 2. Petitioners ultimately provide no sound reason for this Court to revisit RICO’s definition of “enter- 25 prise” so soon after Boyle addressed the term’s mean- ing. Petitioners concede that their interpretation of Sec- tion 1961(4) finds no support in the “uniform” decisions of the courts of appeals, Lorillard Pet. 12, 27, which all agree “with the D.C. Circuit’s conclusion that a group of corporations can constitute an ‘associated in fact’ RICO enterprise.” PM Pet. 27.* Indeed, all ten courts of ap- peals to have considered the question have held that legal entities like corporations that are associated in fact may form or be part of a RICO enterprise. See United States v. London, 66 F.3d 1227, 1243-1244 (1st Cir. 1995) (corporation and a sole proprietorship), cert. denied, 517 U.S. 1155 (1996); Huber, 6038 F.2d at 393-394 (2d Cir.) (corporations and individuals); l/nited States v. Aimone, 715 F.2d 822, 828 (3d Cir. 1983) (individuals and a corpo- ration), cert. denied, 468 U.S. 1217 (1984); United States v. Thevis, 665 F.2d 616, 625-626 (5th Cir. 1982) (individ- uals and corporations), cert. denied, 456 U.S. 1008, 458 U.S..1109, and 459 U.S. 825 (1982); Dana Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882, 887 (6th Cir. 1990) (group of corporations); Masters, 924 F.2d at 1366 (7th Cir.) (law firm, two volice departments, and three individuals); Atlas Ptle Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 995 & n.7 (8th Cir. 1989) (five legal enti- ties); United States v. Feldman, 853 F.2d 648, 655-656 (9th Cir. 1988) (individuals and corporations), cert. de- nied, 489 U.S. 1030 (1989); Unzted States v. Navarro- Ordas, 770 F.2d 959, 969 n.19 (11th Cir. 1985) (group of corporations), cert. denied, 475 U.S. 1016 (1986); Perholtz, 842 F.2d at 352-354 (D.C. Cir.) (group of indi- * Lorillard suggests (Pet. 27) that review is warranted to resolve whether a corporation and its employees can constitute an assoctation- in-fact enterprise. That issue is not presented by the facts of this case and was not addressed by the court of appeals. 26 viduals, corporations, and partnerships). Those courts have reached that unanimous conclusion without even one judge in dissent. Pet. App. 19a-20a (citing cases). In many other cases—including tn an eleventh court of appeals—the courts have similarly upheld RICO claims involving association-in-fact enterprises with members including corporations. /d. at 20a-2la.” Congress, in turn, has repeatedly amended RICO’s definitional sec- tion against the background of that strikingly uniform appellate authority without adjusting RICO’s definition of “enterprise.” See, e.g., United States v. Najjar, 300 F.3d 466, 484-485 (4th Cir.), cert. denied, 587 U.S. 1094 (2002): see also, e.g., Odom v. Microsoft Corp., 456 F.3d 541, 547-558 (9th Cir.) (en bance), cert. denied, 552 U.S. 985 (2007); Living Designs, Inc. v. ET. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005), cert. denied, 547 U.S. 1192 (2006); United States v. Cianer, 378 F.3d 71, 79-85 (1st Cir. 2004); United States v. Goldin Indus., Ine., 219 F.3d 1271, 1275-1277 & n.6 (11th Cir.), cert. denied, 531 U.S. 1015 (2000); United States v. Parise, 159 F.3d 790, 794- 795 (3d Cir. 1998): United States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied, 511 U.S. 1076, and 513 U.S. 1012 (1994); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir. 1993); U/nited States v. Butler, 954 F.2d 114, 120 (2d Cir. 1992); United States v. Stolfi, 889 F.2d 378, 379-380 (2d Cir. 1989); Ocean Energy ll, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740, 748-749 (5th Cir. 1989); Bunker Ramo Corp. v. United Bus. Forms, Inc., 713 F.2d 1272, 1285 (7th Cir. 1983); United States v. Campanale, 518 F.2d 352, 357 n.11 (9th Cir. 1975), cert. denied, 423 U.S. 1050 (1976). See, e.g., Financial Institutions Reform, Recovery, and Enforce- ment Act of 1989, Pub. L. No. 101-73, § 968, 103 Stat. 506 (adding bank fraud as a predicate act); Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, § 3, 110 Stat. 1386 (adding criminal in- fringement of copyright and trafficking in counterfeit labels for com- puter programs, movies, and music); Weapons of Mass Destruction Prohibition Improvement Act of 2004, Pub. L. No. 108-458, § 6802(e), 118 Stat. 3767 (adding offenses relating to biological, chemical and nuclear materials). 27 Petitioners’ reliance on the oral argument transcript in Mohawk Industries, Inc. v. Williams, No. 05-465 (ar- gued Apr. 26, 2006), see, e.g., Lorillard Pet. 11-12, 16-17, simply underscores the absence of authority for their position.’ The Mohawk petitioner argued that corpora- tions cannot be members of an association-in-faet enter- prise, even though its petition for a writ of certiorari did not separately raise the issue. At oral argument, Justice Sealia noted that the Court would have been “unlikely to accept certliorari|” on that issue if it had been raised, given the unanimous holdings of the courts of appeals. 05-465 Tr. at 6. This Court ultimately dismissed the writ in Mohawk as improvidently granted, 547 U.S. 516 (2006), and denied a subsequent petition that expressly presented the question. See Microsoft Corp. v. Odom, 552 U.S. 985 (2007); Pet. at i, 18-19, Mecrosoft, supra (No. 07-138); Br. in Opp. at 2, 11-14, Microsoft, supra. There is no reason for a different result here. B. The Court Of Appeals Was Not Required To Undertake Independent Appellate Review Of The District Court’s Unchallenged Findings Of Fact Establishing Fraud Although petitioners expressly disclaimed any chal- lenge to the district court’s factual findings on appeal, they now contend that the court of appeals was nonethe- less required to undertake “independent appellate re- view” of the more than 4000 findings of fact made by the When the Court decided Loy/e, it presumably was familiar with the oral argument in Mohawk. The petitioner repeatedly cited to the Mohawk argument transcript, Pet. Br. at 48 n.37, 53 n.42, Boyle, supra; Reply Br. at 12-13, Boyle, supra; and his amici specifically argued that corporations could not constitute an association-in-fact enterprise be- cause Section 1961(4) employs the term “includes” to set out an “ex- haustive” list of entities constituting a RICO “enterprise.” See Cham ber of Commerce Amici Br. at 32-33 & n.5, Boyle, supra. district court. See PM Pet. 13-25 (citing Bose Corp Consumers Union of United States "Ine , 466 U.S. 485 (1984)); see also 09-977 Pet. (RJR Pet.) 29; Lorillard Pet 28-29. The question of the proper standard of re view for a party’s challenge to factual determinations is not presented when the party makes no such challenges Moreover, no court has adopted petitioners’ view that every factual determination in a fraud case must be sub jected to de novo review on appeal. Finally, petitioners dlo not explain how independent review would have made a difference to the outcome here, given the “overwhelm ing evidence” establishing their fraud. Pet. App. 103a. 1. In Bose, the Court held that the “ultimate fact” of “actual malice” in a ae mcg case iS not an ordinar)\ fac al f ne reviewed only for clear error under Fed. R. .P.52(a). 466 U.S. at 98 n.15, 499-500. The stan pp of review for such ultimate facts, the Court e: plained, “rust be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v Sullivan, |376 U.S. 254 (1964)],” which held that courts in defamation actions must review the record as a whole to ensure that the judgment does not interfere with free expression. Buse, 466 U.S. at 499. The Court empha- sized, however, that even in such a case, an appellate court’s review of the record must give “‘due regard’ to the trial judge’s opportunity to observe the demeanor of the witnesses,” 7d. at 499-500 (quoting Fed. R. Civ. P. 52(a)), and must afford “special deference” to the “trial judge’s credibility determinations,” 2bid. 2. Petitioners argue that bose required the court of appeals to review de novo the district court’s factual findings. &.g., PM Pet. 13-23. Unlike the defendant in Bose, however, petitioners did not challenge any of the district court’s factual findings as unsupported by the 29 evidence. Instead, they made a strategic decision to raise only legal claims before the court of appeals. Thus, their joint appellate brief assured the court of appeals that it “need not delve into the district court’s lengthy fact-finding.” C.A. Joint Br. 22. At oral argument, de- fense counsel reiterated that petitioners “haven't chal lenged * * * any facet finding.” App., fra, 5a (Mr. Estrada). He explained that although petitioners did not “agree with the fact findings of the district court,” “we're bringing legal challenges to the court.” Jd. at 7a. [It is thus entirely unsurprising that the court of appeals did not discuss the applicability of Bose and repeatedly noted that the key factual findings underlying the dis trict court’s judgment were unchallenged by petitioners. See, e.g., Pet. App. 58a (“| Petitioners] never challenge the district court’s findings documenting the impact of nicotine on the body and, more importantly, | petition- ers’ | understanding of its effects.”); zd. at 52a (citing the “unchallenged findings” that petitioners acted with “fraudulent intent” in denying the risks of second-hand smoke). Petitioners cannot credibly challenge the standard of review applied to a claim they did not make. This case would accordingly present a poor vehicle for deciding the relevance of Bose to factual findings in a fraud case. 3. Even if petitioners had challenged the district court’s factual findings below, there would be no basis for review of their Bose claim. Although this Court sug- gested that an appellate court “could” review a fraud finding independently “lals an additional safeguard,” Petitioners opening and reply briefs cited Bose in the standard of review sections, see C.A. Joint Br. 20-21 & C.A. Joint Reply Br. 6, but oniy once elsewhere, and that lone citation was not in connection with a challenge to a factual finding, see C.A. Joint Br. 112-113 30 Ilianows ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 621 (2003) (Vadigan), the Court did not suggest that such review is required. In fact, the Fourth Circuit expressly rejected the argument that independ- ent review is required in a fraud case. See SEC v. Pi- rate Investor LLC, 580 F.3d 238, 242 (4th Cir. 2009), petition for cert. pending, No. 09-1176 (filed Mar. 26, 2010). Petitioners fail to identify any case in which a eourt has applied ose in reviewing a finding of fraud under the mail or wire fraud statutes. The few cases petitioners cite (PM Pet. 14-17) do not involve intentional! fraud, but rather constitutional re view of broad restrictions on commercial advertising alleged to be potentially misleading. lbanez v. Florida Department of Business & Professional Regulation, 512 U.S. 186 (1994), found the Florida Board of Public Ae- eountanecy’s reprimand of. an attorney for (truthfully) including her designation as a certified public accoun tant on her letterhead to violate the First Amendment. Id. at 144. In doing so it did not cite Bose or discuss the standard of review.” Similarly, Pee lv. Attorne y Registration & Discrpli ye - ary Commission, 496 U.S. 91 (1990), found a prophylac- tic rule prohibiting attorneys from accurately listing specialization credentials in their advertisements to vio- late the First Amendment. In that setting, the Court was reviewing whether the overall character of the ad- vertising placed it beyond the protections of the First Amendment, see 7d. at 108, not findings of historical fact such as those in a fraud action. As this Court has ex Moreover, it is clear that the Court would have reached the same determination under any standard of review—the Board’s argument that the letterhead was misleading was “entirely insubstantial.” /hbanez 31 plained, there is a critical constitutional difference be- tween such a “‘broad prophylactic rule’” categorically limiting speech and “a properly tailored fraud action targeting fraudulent representations themselves.” Madigan, 538 U.S. at 619 (alterations omitted); see Kraft, Inc. v. FTC, 970 F.2d 311, 317-318 (7th Cir. 1992) (“In Peel, the issue was whether a prophylactic regula- tion applicable to all lawyers, completely prohibiting an entire category of potentially misleading commercial speech, passed constitutional muster. * * * Here, by contrast, the issue is whether an individualized FTC cease and desist order, prohibiting a particular set of deceptive ads, passes constitutional muster. * * * Ae cordingly, we decline to review de novo the F'TC’s find- ings.”), cert. denied, 507 U.S. 909 (1993)." The concerns animating the holding in Bose (and sub sequent eases assessing claims that certain categories of professional advertising are potentially misleading) do not apply to the factual findings in a fraud case. “The meaning of terms such as ‘actual malice’—and, more particularly, ‘reckless disregard’— * * is not readily captured in ‘one infallible’ definition,” and “only through ’ Byrumy. Landreth, 566 F.3d 442 (oth Cir. 2009), likewise involved a constitutional challenge to a state prophylactic rule that “prohibit{ ed] significant truthful speech” in interior designers’ advertisements. /d at, 448; see PM Pet. 16. By contrast, when a case-specifie finding of truth or falsity based on assessment of witness credibility is at issue, the Fifth Circuit reviews only for clear error. See Levine v. CMP Publ'ns, Inc., 738 F.2d 660, 672 & n.19 (1984) (“Even the Bose court recognized that it is important for the reviewing court to respect such choices made by the finder of fact.”). Revo v. Disciplinary Bd. of the Sup. Ct., 106 F.3d 929 (0th Cir.), cert. denied, 521 U.S. 1121 (1997), and Falanga v. State Bar, 150 F.3d 1333 (11th Cir. 1998), cert. denied, 26 U.S. 1OX&7 (1999), See PM Pet. 16, also involved challenges Lo pro phvlactic rules on attorney advertising the course of case-by-case adjudication can [appellate courts] give content to these otherwise elusive constitu tional standards.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989). The Court has explained that in the libel setting, it therefore has been “reluctant to give the trier of fact’s conclusions presumptive force ki in so doing, strip a federal appel- late court of its primary tunction as an expositor of law.” Miller v. Fenton, 474 U.S. 104, 114 (1985). By contrast, the elements of fraud, such as falsity and specu intent to deceive, are not “elusive.” Harte-Hanks Communica ions, Inc., 491 U.S. at 686. They are call aabibliaban legal concepts that can be readily applied by fact-finders without a need for de novo at by appellate courts in every single fraud appeal. See Altria Group, Inc Good, 129 S. Ct. 538, 545 ¢ 2008) (“[F'Jraud claims ‘rely nly on a single, uniform standard: falsity.’”) (citation ed); Cherichel v. Holder, 591 F.3d 1002, 1012 (8th Cir. 2010) (‘Specifie intent is a term of art in American jurisprudence, well known to practitioners and law stu- dents alike.”), petition for cert. pending, No. 09-1235 agg ‘sage 12, 2010); United States v. Sawye r, 239 F.3d 31, 1.7 (1st Cir. 2001) (same) 1 “Finally. petitioners’ assertion that “independent appellate review would likely have altered the outcome of thfis] case” (PM Pet. 21) is meritless. [t was for good reason that petitioners made no attempt in the court of appeals to challenge the district court’s fact-finding. As the court of appeals explained, the district court docu- mented “countless examples of deliberately false state- ments by [petitioners],” Pet. App. 45a, and the finding of intent to ages rested on “hundreds” of subsidiary findings, 2d. at. 38a; see also Part C, infra 2,° ad a» \/ Moreover, the vast majority of the district court’s findings establish historical facts—such as the fact that TI’s president was warned in writing that “([ojur basic position in the cigarette controversy is subject to the charge, and may be subject to a finding, that we are making false or misleading statements to promote the sale of cigarettes,” Pet. App. 37a (brackets in origi- nal)—that would unquestionably be subject to review only for clear error even if Bose had some applicability here. See 466 U.S. at 514 n.31. Similarly, even where Bose is applicable, “special deference” is due “to the trial judge’s opportunity to observe the demeanor of the Witnesses.” Jd. at 499-500; see also zd. at 500 (noting that deference to a trial judge’s findings “tends to in- crease when trial judges have lived with the controversy for weeks or months instead of Just a few hours”). Here, the district court found that petitioners had engaged in “a multi-faceted, sophisticated scheme to defraud” (Pet. App. 2009a) after observing the live testimony of 84 wit- nesses, including many of petitioners’ senior executives, over the course of a nine-month trial. /d. at &a. Petitioners highlight (PM Pet. 21) one sentence in the section of the court of appeals’ decision on the likeli- hood of future violations suggesting that it “may not have reached all of the same conclusions as the district court.” Pet. App. 67a; see zd. at 50a. Such formulaic recitations of the clear-error standard, particularly where the parties have not contested the factual deter- minations of the district court, do not suggest that the result below would have been different if the panel had conducted “independent” review under Bouse. Indeed, the immediately preceding sentence in the court of ap- peals’ opinion observes that “examples in the reeord of {petitioners’|] marketing campaigns and internal docu- 34 ments amply support the district court’s conclusion that [petitioners] ‘continue to make[] false and misleading statements regarding low tar cigarettes in order to reas- sure smokers and dissuade them from quitting.’” /d. at 67a (emphasis added; brackets in original)."’ C. Petitioners’ Fraud Was Not Protected By The First Amendment Petitioners Reynolds and Lorillard contend (RJR Pet. 5-29; Lorillard Pet. 29-30) that the district court’s judgment violates the First Amendment by imposing civil liability for constitutionally protected speech. They contend that their statements to the public in press re- leases, pamphlets, and television appearances are enti- tled to First Amendment protection as expressions of opinion “in an ongoing scientific and political debate.” RJR Pet. 21; see Lorillard Pet. 29. Petitioners claim protection for their statements made to Congress and ' Philip Morris cites three examples of purported “factual findings” it claims would be reversed under the standard of review it urges. PM Pet. 21; see rd. at 21-23. First, it cites the district court's finding of specific intent, but it makes a legal argument, 2.¢., that the court applied the wrong standard. Compare PM Pet. 21-22, with RJR Pet. 23-29 & 09-979 Pet. (Altria Pet.) 7-8. Second, it challenges the finding of fraud in connection with use of “low tar” and “light” descriptors, but, again, this is a legal claim (indeed, one that Reynolds claims is the subject of a circuit split, see RJR Pet. 30-32). Finally, Philip Morris claims the district court erred in concluding there was a “scientific consensus” on the dangers of environmental tobacco smoke and cancer in 1986. PM Pet. 22. As the court of appeals explained, however, this contention is “beside the point.” Pet. App. 50a. “The district court based its finding of fraudulent intent not just on the existence of a consensus but also on evidence of [petitioners’| own knowledge” of the dangers of environ mental tobacco smoke, and petitioners before the court of appeals “nowhere challenge the accuracy of * * * any of the district court’s other findings suggestive of their knowledge” /d. at 50a-51La. 30) federal agencies under the Nuerr-Pennington doctrine, an antitrust doctrine with underpinnings in the First Amendment’s petition clause. Those contentions lack merit. Although framed in terms of the First Amendment, petitioners’ arguments in reality amount to belated factbound challenges to the district court’s findings that their statements were fraudulent. Because the district court properly found that petitioners’ statements satisfied all the traditional elements of fraud, the First Amendment issues peti- tioner identifies are not presented here. The court of appeals’ decision upholding the district court’s view of the evidence establishing fraud does not conflict with any decision of this Court or of another court of appeals. Further review of is therefore unwarranted. 1. “{I]t is well settled that the First Amendment does not protect fraud.” Pet. App. 43a-44a (citing Mcln- tyre v. Ohio Elections Comm'n, 514 U.S. 384, 357 (1995) (the government “may, and does, punish fraud di- rectly”). Petitioners do not contest that bedrock princi ple. Instead, they assert that the court of appeals failed to apply the traditional requirements of a fraud claim and therefore impermissibly extended the civil fraud statutes. Specifically, petitioners assert that unlike ae- tionable fraud, their public statements were not false, material, or made with specific intent to defraud con sumers of money or property. Each assertion is mcrit less, and none presents a legal question warranting re- view. a. falsity. Petitioners argue that their public pro- nouncements could not form the basis for fraud liability because they were not “false factual statements,” but instead were assertions supporting “one side of a scien- tific debate.” RJR Pet. 20 (citation, emphasis, and ellip- 36 sis omitted). It is unclear whether petitioners are con- tinuing to assert that their statements about cigarettes are not in fact false—that, for example, it remains an open question whether cigarettes cause disease—or in- stead whether petitioners are asserting that their state- ments were not deiiberately false at the time they were made. Either way, petitioner’s contention fails in the face of the district court’s extensive factual findings based on evidence that the court of appeals correctly labeled “overwhelming.” Pet. App. 39a. As the court of appeals explained, the district court found that petition- ers’ statements were “clearly and deliberately false,” and it provided “countless examples” of such “deliber- ately false statements.” /d. at 45a. The basis for the district court’s findings included “decades of evidence that scientists within the [peti- tioner] corporations and outside scientists hired by the corporations and their joint entities were continually conducting research and reviewing the research of other scientists regarding cigarettes and health, addiction, nicotine and tar manipulation, and secondhand smoke.” Pet. App. 35a. “The evidence at trial demonstrated that the results of this research—essential to the core of [pe- titioners’] operations, including strategic planning, prod- uct development, and advertising—were well known, acknowledged, and accepted throughout the corpora- tions.” /bid. “These results established that cigarette smoking causes disease, that nicotine is addictive, that light cigarettes do not present lower health risks than regular cigarettes due to smoker compensation, and that secondhand smoke is hazardous to health.” /dzd. Trial testimony and interna] company documents “demonstrate that [petitioners’] top officials were di- rectly informed of negative research results,” Pet. App. 37 ova, and “that the executives crafted their corporate priorities and strategies in response to these findings.” Id. at 36a-37a. For example, Dr. William Farone, a Philip Morris scientist for 18 years whom the district court found to be “impressive and credible as both a fact and expert witness,” 7d. at 35a-36a (quoting zd. at 445a), testified that there was “widespread acceptance” at the company “that smoking caused disease,” 7d. at 36a, that nicotine is addictive, zd. at 37a-38a, and that petitioners’ “superior knowledge of compensation * * * was closely held within Philip Morris and the tobacco industry.” /d. at 38a. Indeed, petitioners’ own documents support the finding that their statements were false, and deliber- ately so. TI’s Vice President of Public Relations advised its President confidentially: “[OJur basic position in the cigarette controversy is subject to the charge, and may he subject to a finding, that we are making false or mis- leading statements to promote the sale of cigarettes.” Jd. at 37a (citation omitted). Based on specific examples and “hundreds more find- ings” of fact, the court of appeals concluded that the district court had sufficient evidence from which to con- clude that petitioners’ “executives, who directed the ac- tivities of the [petitioner] corporations and their joint entities, knew about the negative health consequences of smoking, the addictiveness and manipulation of nicotine, the harmfulness of secondhand smoke, and the concept of smoker compensation,” and that “[t]hese executives then made, caused to be made, and approved public statements contrary to this knowledge.” Pet. App. 38a- 39a; see tid. at 45a (district court provided “countless examples of deliberately false statements by [petition- ers]”). Those findings defeat petitioners’ efforts to char- acterize their public statements as good-faith expres- 38 sions of opinion on a matter of legitimate disagreement. There is no reason for this Court to review both the dis trict court’s and the panel’s evaluation of the trial re- cord, which included nearly 14,000 exhibits and the testi- mony of nearly 250 witnesses, zd. at 8a, especially given that petitioners disclaimed any challenge to the district court’s factual findings below, see App., «fra, 5a, 7a. b. Money or property. Petitioner Reynolds ad- vances the related argument that the statements on which the district court based fraud liability were “not directed to consumers” or aimed at obtaining their money or property, but rather addressed “important public controversies.” RJR Pet. 15. This assertion con- tradicts the district court’s factual findings. Reynolds asserts that “[nJeither court below disputed that most of the allegedly ‘fraudulent’ speech was not designed to deprive consumers of money or property.” RJR Pet. 14- 15. That is simply incorrect: The district court specifi- cally found that “the vast majority of [petitioners’] state- ments were made with the primary purpose of influenc- ing smokers” and “potential smokers,” as well as the general public, Pet. App. 1960a, while the court of ap peals concluded that all of the racketeering acts on which the district court relied “were intended to defraud consumers,” 2d. at 46a. The premise of Reynolds’ disagreement with the courts below is its assertion that any statement other than a “product advertisement” necessarily was not di- rected at consumers or intended to deprive them of money or property. See RJR Pet. 16 (contending that “98.9% of the ‘fraudulent’ publie statements identified by the district court * * * were not product advertise- ments,” and thus that such statements are “plainly not speech directed at consumers”). But a statement obvi- 39 ously need not take the form of an advertisement to be targeted at consumers or intended to persuade them to purchase cigarettes. To cite one particularly notable example, the Frank Statement itself was not a “product advertisement,” but it was plainly targeted at consum- ers—indeed, it was entitled “A Frank Statement To Cig- arette Smokers”—and the evidence at trial showed that, like petitioners’ many other false public statements, the Frank Statement was designed to obtain money or prop- erty by persuading smokers to continue purchasing ciga- rettes. Pet. App. 128a; see, e.g. id. at 417a (noting that, according to petitioners’ own documents, the open ques- tion strategy was intended to “give smokers a psycho- logical crutch and a self-rationale to continue smoking”). ce. Materiality. Petitioner Reynolds argues (Pet. 18- 20) that both courts below erred in deeming its false statements material to consumers. Pet. App. 41a-43a. As with its challenge to the falsity findings, Reynolds’ arguments on materiality amount to an attack on the district court’s factual determinations and present no question of law warranting this Court’s review. Reynolds asserts that there was “not a scintilla of evidence or any district court finding that any of the challenged statements (excluding ‘lights’) were ‘impor- tant to a reasonable person purchasing cigarettes.’” RJR Pet. 18 (quoting Pet. App. 42a). But the district court specifically found that petitioners’ false state- ments were material to consumers, Pet. App. 1986a 1990a, and that petitioners intended the public to rely on their claims. /d. at 198a. Those findings of materiality, are neither speculative nor “counterintuitive.” RJR Pet. 18. As the panel explained, the matters addressed in petitioners’ false statements are important to a reason- able consumer “because each concerns direct 1nd signifi- 40 cant consequences of smoking.” /d. at 43a. “When de- ciding whether to smoke cigarettes, tobacco consumers must resolve initial reservations (or lingering qualms) about the potential for cancer, the risk of addiction, or the hazardous effects of secondhand smoke for friends, family, and others who may be exposed.” /bzad. The open question strategy itself shows materiality. That strategy reflected petitioners’ recognition that, to meet their objectives, it was necessary only to create enough public uncertainty to reassure smokers that the connection between smoking and disease was an “open controversy,” “not a closed ease.” Pet. App. 1752a (cita- tion omitted). For similar reasons, there is no merit to Reynolds’ contention (Pet. 19-20 & n.5) that its false statements could not be material because they contra- dicted “[t]he overwhelming public knowledge ot smok- ing’s health effects.” Such contradiction was an integral part of the open question strategy. As Brown and Wil- liamson observed in 1967: “Doubt is our product since itis the best means of competing with the ‘body of fact’ that exists in the mind of the general public.” Pet. App. 456a; see zd. at 43a (“[ Petitioners’] prevarications about each of these issues suggests full awareness of this obvi- ous fact; reasonable purchasers of cigarettes would con- sider these statements important.”).* “ Reynolds incorrectly contends that the government was required to prove that identified consumers actually relied on petitioners’ misrepresentations. As ti.is Court has explained, “[u|sing the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate act of racketeering under RICO, even ifno one relied on any misrepresentation.” Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131, 2138 (2008). That is because the mail and wire fraud statutes “punish[]| the scheme, notits success.” Pasquantino v. United States, 544 U.S. 349, 371 (2005) (quoting United States v. Pierce, 224 F.3d 158, 166 (2d Cir. 2000) 4] Reynolds is therefore incorrect in contending (RJR Pet. 6-7) that its First Amendment challenge resembles the one at issue in Nike, Inc. v. Kasky, 5389 U.S. 654 (2003). N2rke involved non-fraudulent, freestanding cor- porate speech about public policy issues, not, as in this case, an integrated course of conduct designed to de ceive and defraud consumers. As the government ex- plained in the portion of its Nzke amicus bricf that Reynolds quotes in its petition (Pet. 6-7), the First Amendment concern in that case arose because the Cali fornia law at issue permitted private suits challenging speech “that does not injure individuals or materially affect their purchasing decisions.” U.S. Amicus Br. at 9, Nike, supra. In this case, by contrast, the district court specifically found, and the court of appeals correctly agreed, that petitioners’ false statements both injured individuals and materially affected consumers’ decisions about whether to purchase cigarettes. The issues in Nike. therefore are not presented here. As the govern- ment noted in Nike, suits of this kind—based on “legis- lation that protect({s] purchasers of goods and services from deception, including fraud”—“are unquestionably compatible with the First Amendment.” Jdid. d. Specific intent to defraud. Reynolds contends (Pet. 23-28) that the court of appeals erred in upholding the district court’s finding that it acted with specific in- tent to defraud consumers. Pet. App. 32a-4la. To the extent that this argument reflects disagreement with the district court’s view of the evidence, it simply re- peats the belated challenge to the district court’s finding that petitioner’s statements were deliberately false and fails for the same reasons. See pp. 35-38, supra. In ad- dition to challenging the finding of falsity, however, teynolds advances two specific arguments about the 42 manner in which the courts below determined that the specific-intent requirement was satisfied. Those argu- ments lack merit and do not warrant review. i. First, Reynolds argues (Pet. 23-26) that the dis- trict court rested its specific-intent finding on an incor- rect legal standard because, Reynolds contends, the court considered the “collective intent” of the corpora- tion as a whole and did not require that any single ern- ployee act with specific intent to defraud. /d. at 23-24 (emphasis omitted).'* That argument is incorrect. Al- though the district court mentioned a “collective knowl- edge doctrine,” Pet. App. 1980a, the court made clear that a finding of specific intent requires proof that a per- son with authority to act on behalf of the corporation possessed the requisite wrongful intent or acted with reckless disregard for or willful blindness to the truth. [d. at 198la. Indeed, the district court noted that, in Saba v. Compagnie Nationale Air France, 78 F.3d 664, 670 n.6 (1996), the D.C. Cireuit stated that “the pro- scribed intent (willfulness) depend{s] on the wrongful intent of specific employees.” /b¢d. The district court also specifically rejected the proposition “that aggrega- tion of different states of minds of various corporate actors is sufficient to demonstrate specific intent in cases where individuals within a corporation make fraudulent statements.” /bid. The district court’s analysis is consistent with the court of appeals’ articulation of the governing legal prin- ciples, which Reynolds does not dispute. As the court of appeals explained, see Pet. App. 32a-34a, “[cJorporations Petitioner Altria presents a separate statutory argument premised ona challenge to the legal standard the district court applied in deter mining whether Altria acted with specific intent to defraud. See Altria Pet. 7-10. That argument is addressed in Part H, ifra may be held liable for specific intent offenses based on the ‘knowledge and intent’ of their employees.” /d. at 33a (quoting New York Cent. & Hudson River R.R. v. United States, 212 U.S. 481, 495 (1909)). “Because a corporation only acts and wills by virtue of its employ- ees, the proscribed corporate intent depends on the wrongful intent of specific employees.” /bid. A showing of specific intent does not require that individual officers or employees personally testify to their frame of mind. “A person’s state of mind is rarely susceptible of proof by direct evidence, so specific intent to defraud may be, and most often is, inferred from the totality of the cir- cumstances, including indirect and circumstantial evi- dence.” /bhid. Applying these principles, the court of appeals cor- rectly upheld the district court’s finding that Reynolds acted with specific intent to defraud. As the panel ex- plained, the district court concluded “that the chief exec- utive: officers and other highly placed officials in the [pe- titioner| corporations made or approved statements they knew to be false or misleading, evincing their specific intent to defraud consumers.” Pet. App. 34a. In light of the “overwhelming evidence” that petitioners knew of the toxicity and addictiveness of their products, the dis- trict court explained that “it is absurd to believe that the highly-ranked representatives and agents of these cor- porations and entities had no knowledge that their pub- lic statements were false and fraudulent.” /d. at 1890a; see id. at 1984a (noting that, “[i]n the majority of in- stances, the authors of the fraudulent statements al- leged as Racketeering Acts were executives, including 44 high level scientists—CEOs, Vice Presidents, Heads of Research & Development, not entry level employees.”)." Thus, contrary to Reynolds’ assertions (Pet. 24-25), the district court did in fact find, properly based on in- ferences from “overwhelming” evidence, that petition- ers’ executives knew the information that rendered their public statements false and misleading—in other words, that they acted with specific intent to defraud. The court of appeals therefore correctly held that the “dis- trict court did not commit legal error by imputing to [pe- titioners’| executives knowledge of the falsity of their statements based on inferences reasonably drawn from the facts shown.” Pet. App. 35a. As noted, the district court explicitly disavowed the “collective intent” theory that petitioner attributes to it. '’ Petitioner Reynolds challenges the validity of the district court’s nterence of knowledge on the ground that “most of the alleged ‘fraud’ was statements by the Tobacco Institute.” RJR Pet. 26 (emphases omitted). But even if that were true, Reynolds did not dispute its re- sponsibility for ‘Tl’s conduct in the court of appeals. and for good reason. As the panel explained, petitioners (including Reynolds) cre ated Tl, staffed its board and its committees, and used TI (along with other joint entities) to conduct their “joint public relations through false and misleading press releases and publications.” Pet. App. 9a; see also id. at 183a (petitioners funded TI's operations with contributions ex ceeding $600 million). Indeed, the district court found that petitioners formed TI toserve as their collective spokesperson on matters of smok- ing and health and to provide a confidential forum in which to refine and coordinate their fraudulent scheme. See generally id. at 177a-230a. Petitioners structured their operations in this way because, as the TI Fixecutive Committee stressed, it was “of prime importance that the in dustry maintain a united front and that if one or more companies were to conduct themselves as a matter of selfinterest, particularly in adver- tising, obvious vulnerability would be the result.” /d. at 218a (citation oniitted). Petitioners’ effort to characterize TI as “a separate entity” KK Pet. 26) is thus squarely at odds with the record 45 Pet. App. 198la. But even if it had not, the court of ap- peals explained that the district court “relied on a per- missible view of specific intent,” zd. at 41a, finding that the individuals who made and directed the fraudulent statements in fact knew that those statements were false. See zd. at 1890a. Because the district court’s “conclusions based on the proper standard are sufficient to uphold its judgment,” zd. at 41a, the court of appeals correctly found no need to decide the validity of the “eollective intent” theory that petitioners challenge here. Accordingly, the validity of that theory is not pre- sented for this Court’s review. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“{We are a court of review, not of first view.”’). li. Second, Reynolds contends Pet. 27-29) that it was deprived of due process because it was denied the oppor- tunity to “show[] that all corporate statements aeccu- rately reflected the prevailing internal views—and cer- tainly the speakers’ views.” RJR Pet. 27, 28-29. The record in the district court belies the assertion that Reynolds was “tricked” into “putting on no defense on a hotly contested issue.” /d. at 28. Reynolds had every opportunity and incentive in the nine-month trial in this case to establish, by oral testi- mony or otherwise, the exceedingly unlikely proposition that its executives believed the public statements made on behalf of the corporation. In their opening state- ment, petitioners declared that “the evidence will show, Your Honor, these defendants gen[uine]ly believed their positions, advanced legitimate assessments of the sci- ence, and made statements with no intent whatsvever to mislead or to defraud anybody.” 9/22/04 Tr. 337. The government then presented volumes of evidence estab- lishing petitioners’ specific intent to deceive. As the 46 court of appeals explained, “[t]he government presented evidence indicating that specific high-ranking corporate officials were directly informed” about “the negative health consequences of smoking, the addictiveness and manipulation of nicotine, the harmfulness of secondhand smoke, and the concept of smoker compensation,” and that “[t]hese executives then made, caused to be made, and approved public statements contrary to this knowl- edge.” Pet. App. 38a-39a."° The central dispute at trial was whether the statements made by petitioners and their employees “accurately reflected” the “prevailing internal views” of the corporation and the speaker. RJR Pet. 28-29. It is simply implausible that Reynolds pos- sessed but deliberately withheld exculpatory evidence that not only would have disproved the showing Reynolds contended the government was required to make but also would have rebutted the specific evidence the government presented. Reynolds’ factbound claim of unfairness lacks any merit and does not warrant this Court’s review. 2. Petitioners Reynolds and Lorillard contend (RJR Pet. 7-8, 17-18; Lorillard Pet. 29-30) that a subset of their public statements—those directed in the first in- stance toward Congress or other governmental agen- cles—enjoy protection under the Noerr-Pennington ’ Indeed, the government’s post-trial brief provided more than 20 pages of “examples of particular executives, employees, and agents of | petitioners] who possessed the specific intent required under the mail and wire fraud laws,” with citations to the supporting record evidence. C.A. App. Al393-A1414. Petitioners made no attempt to rebut this evidence in the district court, claiming only that the officers who made or approved petitioners’ false statements might have “personally be lieved” the statements were true despite a wealth of contradictory evi- dence. /d. at Al489 (citing petitioners’ joint post-trial brief) 47 doctrine. The court of appeals correctly rejected that contention, which does not present any legal issue war- ranting review. The Noerr-Pennington doctrine bears only slight, if any, relevance to this case. Under that doctrine, “(t]hose who petition government for redress are gener- ally immune from antitrust liability.” Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56 (1993); see Fastern R.R. Presidents Con- ference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961) (Noerr); United Mine Workers of Am. v. Pen- nington, 381 U.S. 657, 669 (1965). Were this an antitrust case, the Noerr-Pennington doctrine might have some coneeivable bearing. But as the court of appeals ex- plained, Pet. App. 44a-46a, this case concerns fraud on consumers; petitioners’ hability rests on their use of the mails and wires while executing a scheme to defraud cigarette purchasers of their money. 18 U.S.C. 1341, 1343 (Supp. II 2008).’° This Court has never suggested, and petitioners cite no case holding, that the Noerr- Pennington doctrine confers some sort of generalized immunity from laws punishing consumer fraud. See Pet. App. 44a-45a."' ' Petitioner Reynolds argues (Pet. 16) that its speech before Con- gress or other government agencies does not constitute “consumer fraud” because it “was not directed to consumers.” But the same state- ments may be intended both to influence government agencies and to defraud consumers of money or property. The district court’s findings make clear that what petitioners describe as their “Nuerr-Pennington speech” was in fact an integral! part of petitioner’s overall strategy to portray the health effects of smoking as an “open question” and thereby to obtain money from cigarette smokers by means of false representa- tions. '" Petitioners are thus mistaken inclaiming(PM Pet. 26 n.4; RJR Pet. 18)) that the decision below contlicts with other circuits’ application of 48 Similarly, while Noerr-Pennington immunity stems in part from First Amendment right-to-petition con- eerns, see Noerr, 365 U.S. at 138, this Court has stressed that “[t]he Petition Clause * * * was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble[,] * * * and there is no sound basis for granting greater consti- tutional protection to statements made in a petition * * * than other First Amendment expressions.” Mc- Donald v. Smith, 472 U.S. 479, 485 (1985); see 7d. at 484 concluding that “petitions to the President that contain intentional and reckless falsehoods do not enjoy consti- tutional protection”) (internal quotation marks and cita- tion omitted). Petitioners appear to contend that the Noerr-Pen- nengton doctrine confers immunity from all liability for any speech—even knowingly false statements—that is addressed to a government agency and takes the form of “efforts to affect governmental! regulation.” Lorillard Pet. 29-30; see RJR Pet. 17. But that sweeping proposi- tion cannot be squared with established and unquestion- ably constitutional prohibitions against making false statements to Congress, federal agencies, and the fed- eral courts. See, e.g., 18 U.S.C. 1001 (prohibiting false statements to the federal government); 18 U.S.C. 1621 (perjury of witnesses); see also Buckman Co. v. Plain- tiffs’ Legal Comm., 531 U.S. 341, 348 (2001) (explaining that federal law “amply empowers the [Food and Drug Administration] to punish and deter fraud against the Administration’). the Noerr-Pennington doctrine. All of the cases on which petitioners rely, like Noerr itself, involved immunity from antitrust claims. None involved consumer fraud AY [In any event, the scope of the Noerr-Pennington doctrine is not squarely presented in this case. As a precautionary measure, the district court excluded evi- dence of certain testimony petitioners’ executives pro- vided to Congress. See Pet. App. 46a; zd. at 1962a- 1963a. Even if those statements were properly ex- cluded, a question the court of appeals found no need to resolve, see id. at 46a, the district court specifically found “that the vast majority of [petitioners’] statements were made with the primary purpose of influencing smokers, potential smokers, and the general public and are, therefore, not protected by the Noerr-Pennington doctrine.” /d. at 1960a; see 7d. at 46a (coneluding that, even if petitioners’ congressional testimony was prop- erly excluded, petitioners’ “remaining acts were in- tended to defraud consumers, so Noerr-Pennington pro- tection does not apply”). Indeed, even if the district court had exeluded from consideration not just congres- sional testimony but all of petitioners’ statements to the FTC. and other federal regulators, the record would still contain ample evidence—including misleading market- ing materials, press releases, statements on television talk shows, and advertising campaigns—to support the finding of a scheme to defraud consumers. In view of that record, the question that Reynolds seeks to raise (RJR Pet. 17)—whether First Amendment protection applies to deliberate deception of regulatory bodies and legislators in pursuit of a fraudulent scheme aimed at consumers—is not properly presented. 5O D. Petitioners’ Statements About “Light” And “Low-Tar” Cigarettes Were Fraudulent And Not Authorized By The FTC Petitioners Reynolds and Philip Morris (RJR Pet. 29-34; PM Pet. 29-30) contend that the court of appeals erred in upholding fraud liability based on their adver- tising of “light” and “low-tar” cigarettes. That conten- tion is based on two arguments, neither of which has merit or warrants review. First, petitioners argue that “they should be immune from liability because the [FTC] * * * has blessed their use of labels such as ‘light’ and ‘low tar.’” Pet. App. 46a-47a. But as the court of appeals ecxplaincd, that argument is “entirely foreclosed” by this Court’s decision in Altria, which held that “the FTC has in fact never required that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned representations of those yields through the use of ‘light’ or ‘low tar’ descriptors.” Pet. App. 47a (quoting Altria, 1298S. Ct. at 550). Second, petitioners contend that their “light” and “low tar” descriptors were not actionable under the fraud statutes because although such statements “could be interpreted to imply a health benefit, that is not the only reasonable interpretation that could be drawn from the terms.” Lorillard Pet. 30-31; see also RJR Pet. 30. The district court found, however, that petitioners knew and intended that consumers would interpret “light” and “low tar” descriptors to convey a health benefit, see Pet. App. 1068a-1096a, even though petitioners “have known for decades that filtered and low tar cigarettes do not offer a meaningful reduction of risk, and that their mar- keting which emphasized reductions in tar and nicotine was false and misleading.” /d. at 46a (quoting 7d. at 51 1905a-1906a); see tid. at 1140a-1147a, 1255a-1256a. There is also no merit to petitioners’ characterization of “light” and “low tar” deseriptors as “simply verbal rep- resentations of numerical ratings authorized by the FTC.” Id. at 49a. That argument “founders on the dis- trict court’s finding that ‘there are lights of certain brands with higher tar levels than regulars of other brands from the same company, and there are also lights and regulars of the same brands that have the same FTC tar rating.’” /bid. (quoting zd. at 1907a); see zd. at 1142a (finding that the terms “light” and “low tar,” as used by petitioners, are empirically “meaningless” and “arhitrary”). This evidence, “which [petitioners] do not attempt to show is clearly erroneous, reveals the descriptors were not simply representations of numeri- cal ratings and thus were not ‘literally true.’” /d. at 49a. In any event, the “fraudulent activity surrounding ‘light? cigarettes was not merely limited to the use of misleading descriptors.” Pet. App. 48a. The district court found, for example, that petitioners’ public state- ments about the demand for light cigarettes were “bla- tantly false,” 2d. at 1906a; that petitioners “withheld and suppressed their extensive knowledge and understand- ing of nicotine-driven smoker compensation,” id. at 1907a; and that petitioners intentionally designed their light cigarettes to facilitate smokers’ ability to compen- sate and thereby obtain the required dosage of nicotine to remain addicted, 2d. at 1905a. See generally cd. at 775a-850a (describing petitioners’ efforts to “design commercial cigarettes that were capable of delivering nicotine across a range of doses that would keep smok- ers addicted,” including through filter design, the place- ment of ventilation holes, paper porosity, and alterations to the chemical form of the nicotine delivered to smok- ers’ brains). KE. Neither The Master Settlement Agreement Nor The Pas- sage Of The Family Smoking Prevention And Tobacco Contro! Act Eliminated All Likelihood Of Future Viola- tions Both courts below properly found that an injunction was warranted, especially given petitioners’ vast, decades-long fraudulent enterprise. Pet. App. 60a-67a, 2007a-2021a; see 18 U.S.C. 1964(a) (injunctions available under RICO to “prevent and restrain violations”). This Court has long recognized that “fijn exercising its equl- table jurisdiction, |a] federal court has broad power to restrain acts which are of the same type or class as un- lawful acts which the court has found to have been com- mitted.” Zenith Radio Corp. v. Hazeltine Research, Ine., 395 U.S. 100, 132 (1969) (internal quotation marks and citation omitted). Petitioners Philip Morris and Lorillard nonetheless contend that the Master Settle- ment Agreement (MSA) and the FSPTCA “[fJjoreclose [fluture {rJacketeering” and thus “extinguished the dis- trict court’s jurisdiction.” PM Pet. 28; see 2d. at 28-31; Lorillard Pet. 31-32. Petitioners do not contend that the district court’s injunction conflicts with any decision of this Court or any court of appeals, and their challenge is without merit. 1. Petitioners erroneously contend that the injunc- tive relief ordered in this case was barred by the MSA —an agreement between state attorneys general and some tobacco companies settling tort and reimburse- ment suits through a variety of state-specific injunctions and consent decrees, see Pet. App. 61la-66a, 1864a-1870a. As an initial matter, they cite no authority whatsoever for the proposition that a racketeer’s settlement of other causes of action with other parties can strip a federal district court of “jurisdiction” to provide injunctive re- lief for the United States in a RICO ease. PM Pet. 28: see Pet. App. 62a (characterizing this argument by peti- tioners as “odd”); ef. SEC v. Management Dynamics, Inc., 515 F.2d 801, 807 (2d Cir. 1975) (“[Injunetive relief is not barred by a defendant’s disclaimer of an intent to violate the law in the future.”). In any event, this con- tention ignores the district court’s express factual find- ings regarding petitioners’ violations of the MSA, as well as the settlement’s inadequacy when compared to the injunction issued here. As the court of appeals found, petitioners “cannot hide behind the MSA to avoid the imposition of RICO remedies when they do not comply with the agreement.” Pet. App. 66a. Those petitioners subject to the MSA “began to evade and at times even violate the MSA’s prohibitions almost immediately after signing the agree- ment.” /d. at 64a. For example, “although the MSA required [petitioners] to dissolve CIAR, only two days after signing the MSA Lorillard’s general counsel wrote to Philip Morris, Reynolds, and Brown & Williamson asking to ‘discuss the status of the plan to reinstate CIAR.’” J/hid. (citation omitted). “Shortly thereafter, Covington & Burling LLP informed the CIAR contrac tors ‘|t]he members of CIAR have decided to create a new organization to continue the work. . . . The mem- bers of CIAR that will be members of the new organiza- tion intend to continue to fund the research.” Jd. at 64a 65a (citation omitted). “Subsequently, in 2000, Philip Morris initiated a new research program that had the same offices, phone numbers, and board as CIAR and many of the same employees, management, researchers, 54 peer reviewers, and grantees.” /d. at 65a; see also zbid. (““CIAR is not the lone example of [petitioners’} organi- zations poised to circumvent the MSA’s prohibitions against joint activities or participation in an enter prise.”). Moreover, as further “evidence of the MSA’s failures and pitfalls, the district court noted that despite the MSA [petitioners] still fraudulently denied the dangers of secondhand smoke, marketed ‘low tar’ cigarettes as a healthier alternative to quitting, and falsely denied manipulating nicotine delivery and marketing to youth.” Pet. App. 66a; see also zed. at 1873a-1877a (Summarizing additional MSA violations by petitioners); 7d. at 2044a (“[Petitioners] continue to make affirmative statements on smoking and health issues that are fraudulent.”). Petitioners offered “no rebuttal” to these factual find- ings. /d. at 66a. Additionally, the MSA does not include core compo nents of the injunctive relhet ordered in this case. See Pet. App. 1884a (MSA does not enjoin against future eet RICO violations, regulate “‘light’ and ‘low tar’” descrip- tors, require corrective statements, or fund smoking cessation programs.). Finally, the States “could not be relied upon to ‘vigor- ously’ enforce the MSA,” Pet. App. at 66a (citation omit- ted); some provisions of the MSA had either expired at the time of the district court’s order or were on the cusp of expiring, in the Di defen he) the “art and o, because | don’t 1. i And Strict dants intended a heaith message or a taste message. * Our position is that we intended a taste message. L1l1e ORAL ARGUMENT OF MIGUEL A. ESTRADA, ESQ. ON BEHALF OF THE APPELLANT MR. ESTRADA: Thank you, Your Honor. I have some quick points I don’t want to be misquoted as having said that I agree with the fact findings of the district court. What [ said is, we’re bringing legal challenges to the court. Obviously, we disagree with a lot of what Judge Kessler had to say, and just because she calls something a find- ing also does not make it a finding. As you know, the Supreme Court said in Pullman Standard v. Swent, you have (indiscernible) of law and fact, and if you have made a legal error in your approach to the facts, you know, the judgment may be set aside on that basis. Frankly, after you get a trial in which 60 years of your conduct out on trial, and an appeal in which even with [119] more pages, you cannot possibly address all of that. It is the only thing that we could do to sort of bring the, the unfairness and the injustice of the whole, of the whole process in front of the court, and to high light that this is the type of case that was tried purport- edly under a federal! criminal trial under circumstances that never would have been permitted if it were a crimi nal trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1614%3A4. Public record. Not legal advice.