WASHINGTON — Tobacco industry lawyers have met secretly with Solicitor General Elena Kagan in an effort to avoid the government’s last-ditch attempt to extract billions from companies that illegally concealed the dangers of cigarette smoking, The Associated Press has learned.
Four cigarette makers that control nearly 90 percent of U.S. retail cigarette sales have until Feb. 19 to persuade the government not to ask the Supreme Court to step into a landmark 10-year-old racketeering lawsuit.
In 2006, a judge ruled that the industry concealed the dangers of smoking for decades. Despite that finding, lower courts have said the government is not entitled to collect $280 billion in past profits or $14 billion for a national campaign to curb smoking.
Possible concessions
As part of any effort to persuade the government that it should skip a trip to the Supreme Court, the tobacco companies might have to drop plans to ask the justices to overturn the ruling that the industry engaged in racketeering.
On behalf of the industry, Washington lawyers Michael Carvin and Miguel Estrada made their pitch against seeking Supreme Court review in a mid-December meeting at the Justice Department with Kagan, according to two Washington attorneys outside the government who are familiar with the meeting in her office.
In the meeting, Carvin and Estrada left the impression the industry might be willing to end plans to seek a high court appeal of its own, if the Justice Department would do the same, said the Washington attorneys.
The discussion with Estrada and Carvin resulted in an internal department meeting a few days later. At this meeting, department lawyers discussed the possibility of seeking billions of dollars from the industry as part of a possible negotiated settlement of the suit, according to one of the private attorneys who learned about this second meeting from participants.
Delay another option
The department, the industry or both could request that the Supreme Court take the case, while at the same time asking that the case be delayed while the two sides try to work out a deal.
If the companies also agreed not to seek an appeal, they would be accepting the findings of U.S. District Judge Gladys Kessler that they engaged in a scheme to defraud the public by falsely denying the adverse health effects of smoking, concealing evidence nicotine is addictive and lying about their manipulation of nicotine in cigarettes to create addiction.
Charles Miller, a Justice Department spokesman, declined comment, as did Carvin. Estrada didn’t return telephone calls.
Tobacco company defendants in the lawsuit are Philip Morris USA Inc. and its parent company, Altria Group Inc.; R.J. Reynolds Tobacco Co.; British American Tobacco Investments Ltd.; and Lorillard Tobacco Co. Philip Morris, R.J. Reynolds and Lorillard account for nearly 90 percent of U.S. retail cigarette sales.
