Robert B. Sklaroff, MD Suite #130 50 East Township Line Road Elkins Park, PA 19027-2253 (215) 663-8200 FAX: (215) 663-8388 rsklaroff@home.com http://members.home.net/rsklaroff/homepage.html August 17, 1999
PP
To: Re:
File Scorecard – State Specific Finality – UPDATE/CLARIFICATION - II
I have attempted to gain an update regarding the status of all pending MSA-related litigation. I called the NAAG [Mary Schlafer (202-326-6004)] and was advised to contact each AG. The following constitutes only my understanding of what I was told (sans value judgements). The six categories of groups attempting to obtain, prospectively, a “piece of the MSA pie” are smokers, counties, hospitals, Medicaid recipients, Native Americans and lawyers. To the best of my knowledge, I am the only individual attempting to alter any phraseology in the MSA. The discussion from Mr. Eckhard yielded a key-concept that may affect other states’ status; state-level cases filed in courts that didn’t have jurisdiction over the initial Medicaid cases aren’t viewed as affecting the achievement of SSF (including the federal case in California filed by Native Americans) and this may explain the perspective of the AG in Wisconsin. (This concept may also be applicable to litigation in Florida, Minnesota and Colorado.) Nevertheless, none of the information cited herein has been gleaned from court documents; thus, a complete appreciation of each state’s status can best be acquired through discussions with the intervenors and x-examination of both parties based upon the recognized database. “Exhibit A” from the MSA lists “State Allocation Percentages” from which one must calculate the closeness of exceeding the “80/80” threshold. First, 39 (80+% of 46) states must agree, but the present total is 37 (perhaps 38/39, if South Carolina and/or Wisconsin are excluded). Second, the total of the following (remaining) %-ages must be lower than “20” to gain SSF. Alabama Arizona California Missouri New Jersey Pennsylvania Rhode Island South Carolina Tennessee Virginia Wisconsin TOTAL 1.61 1.47 12.76 2.27 3.86 5.74 0.71 1.17 2.44 2.04 2.07 36.07 One might “play” with these %-ages by handicapping. The first step (discounting SC/WI) has minimal effect. [New York has been dropped, per press reports.] An easier way to approach it is to focus on PA (me). As long as PA/CA are pending, SSF is elusive (18.5). Almost all other states must settle to compensate. The “exception” would be a federal-level injunction. [This would be difficult to achieve absent a “bond.”] All non-confirmed “finality” states are listed here. Thus, the focus must be trained on state-level matters. More tracking will enlighten; but key ideas are known. It’s unclear whether my activities apply elsewhere.
Despite dire statements from the settling parties, it would appear that issues principally related to the division of the monies will be settle-able without affecting the substance of the MSA. Thus, any who abhor the prospect of an immunized tobacco industry should flock to help me. I received the following e-mail in response to my first memo: > According to Shook, Hardy & Bacon...as of July 29, 1999... MSA Notice Issues: “Escrow agents have not been notified that State Specific Finality has occurred in any state since the last report. The Master Settlement Agreement has been approved in all 52 jurisdictions in which governmental entities are permitted to participate in the MSA. State Specific Finality has not been achieved in ten states, Alabama, Arizona, Arkansas, California, Missouri, New Jersey, New York, Pennsylvania, Tennessee and Virginia.” Other press reports had included Rhode Island and the NAAG had cited South Carolina. Alabama Honorable Bill Pryor Attorney General of Alabama Office of the Attorney General State House 11 South Union Street Montgomery, AL 36130 PHO:(334) 242-7300 [7/(6 & 12)/99][Clarence H. Hampton (x7311); left two messages] [I was told that U of Alabama might have pending case.] [According to the Arkansas-source, a comparable “lawyer” filing may exist.] Arizona Honorable Janet Napolitano Attorney General of Arizona Office of the Attorney General 1275 West Washington Street Phoenix, AZ 85007 PHO:(602) 542-4266 [7/6/99; Tom Prose] [Counties are appealing; briefs are being filed.] Arkansas Honorable Mark Pryor Attorney General of Arkansas Office of the Attorney General 200 Tower Building, 323 Center Street Little Rock, AR 72201-2610 PHO:(501) 682-2007 [7/17/99][Tim Gallagher; timg@ag.state.ar.us] [A ruling pends following the closure of the record on 8/10 in the original trial court (Pulaski County Chancery Court, now presided over by Judge Mackie Pierce) by the lawfirm Jackson, Taylor and Martino invoking “Rule 60.” Although division of the monies is not in a “nonseverable” portion of the MSA, certain phraseology may be adopted “by reference” to generate the argument that this filing precludes “finality.” The former view is adopted by the AG, the latter view by the Tobacco Industry.]
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California Honorable Bill Lockyer Attorney General of California Office of the Attorney General 1300 I Street, Suite 1740 Sacramento, CA 95814 PHO:(916) 324-5437 [1-800-952-5225-1-0/public inquiry system] FAX (916) 323-5341 [freemap@hdcdojnet.state.ca.us][http://caag.state.ca.us] [263-0818; Dennis Eckhard; bill soohoo covering.][eckhard@hdcdojnet.state.ca.us] [There are a number of pending cases, but the key one apparently was just dismissed.] [A Motion to Dismiss (filed on 8/27) a Federal Court in San Francisco by FORCES (representing 1000’s of smokers) may relate to a collateral case in Utah. (?)] [A third case is that of Native Americans, also filed in Federal Court.] [A fourth case may be imminent; California Medicaid recipients (“MediCal”) filed notice of intent to file suit, a fortnight ago, but the AG has not received a Complaint.] Contrasting data related to these issues may be deduced from these communications: #1 - California Nears State Specific Finality For Tobacco Settlement A California state court rejected an appeal by a pro-tobacco group to intervene in the state's tobacco settlement process, moving California a step closer to state specific finality. Smokers for Fairness attempted to delay state finality by involving themselves in suits that had been filed against the tobacco companies prior to the settlement. The San Diego Superior Court denied this attempt last October, and on Friday, the state appeals court agreed, ruling that the group failed to complete procedural steps necessary for appeal. San Francisco Attorney Louise Renne, who filed the first local suit against the tobacco companies in 1996, said, "With this decision, there should no longer be any excuse for the tobacco companies to dispute the finality of the settlement in California." “Ruling Clears Way For California Tobacco Payments,” Reuters, August 11, 1999. #2 – Donald W. Ricketts, Esq. [Phone/Fax: (661) 250-3091.] [lawcom@csiway.com] Nice to hear from you again. I have been following your efforts and, if I understand the situation, you are now in the appellate court. Last Friday, the California Court of Appeal dismissed the appeal from the order of the trial court denying us the right to intervene in the AG’s case (which was filed before the settlement was announced). We will seek further appellate review. This case has been holding up state specific finality in California and will continue to do so. We also hope to file in NY before the week is out. We believe that without state specific finality in Calif. & NY (& Penn.) the agreement cannot be effective. There will be a hearing in the case we filed in United States District Court in San Francisco on the 27th. The number of cases filed on anti-trust grounds is multiplying and these cases, I believe, hold the most promise for breaking (and thus re-negotiating) the settlement. I continue to believe that a cooperative effort among all those who believe the settlement needs to be rewritten would be helpful. There is an attempt to block the implementing legislation in
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those states that have not yet passed it, but that is not getting anywhere. Do you have a good “scorecard” on the various suits? [Donald W. Ricketts, Esquire, 28855 Kenroy Avenue, Santa Clarita, CA 91351] Missouri Honorable Jeremiah W. (Jay) Nixon Attorney General of Missouri Office of the Attorney General Supreme Court Building 207 West High Street Jefferson City, MO 65101 PHO:(573) 751-3321 [7/6/99; Peter Lyskowski (x9625 & peterl43@hotmail.com)] [oral arguments scheduled for Fall] [litigants include political subdivisions, hospitals, smokers] New Jersey Honorable Peter Verniero Attorney General of New Jersey Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, CN 080 Trenton, NJ 08625 PHO:(609) 292-4925 FAX:(609) 292-3508 [8/17/99l; Kristi lpaciti@oag.lpapo] Pennsylvania Honorable D. Michael Fisher Attorney General of Pennsylvania Office of the Attorney General Strawberry Square Harrisburg, PA 17120 PHO:(717) 787-3391 [7/15/99] [Challenge to MSA content denied by Commonwealth Court; will appeal.] Rhode Island Honorable Sheldon Whitehouse Attorney General of Rhode Island Office of the Attorney General 150 South Main Street Providence, RI 02903 PHO:(401) 274-4400 (x2301) [7/12/99; Maureen Glynn contacted] {Data previously here were moved to Virginia.} South Carolina Honorable Charlie Condon Attorney General of South Carolina Office of the Attorney General Rembert C. Dennis Office Building Post Office Box 11549
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Columbia, SC 29211-1549 PHO:(803) 734-3970 (x4399) [erin beebe; agebeebe@ag.state.sc.us] [Said she sent proof case is closed, pending.] Tennessee Honorable Paul Summers Attorney General of Tennessee Office of the Attorney General 500 Charlotte Avenue Nashville, TN 37243 PHO:(615) 741-6474 [will call] Virginia Honorable Mark L. Earley Attorney General of Virginia Office of the Attorney General 900 East Main Street Richmond, VA 23219 PHO:(804) 786-2071 [8/12//99; Garlin Bigley is at gbigley@oag.state.va.us.] [He reports that Mr. James Feinman, a personal injury attorney, abandoned his Federal one-plaintiff class action suit and was sanctioned $10,000 by the court. Nevertheless, his appeal now pends before the Supreme Court.] Wisconsin Honorable James E. Doyle Attorney General of Wisconsin Office of the Attorney General State Capitol Post Office Box 7857 Suite 114 East Madison, WI 53707-7857 PHO:(608) 266-1221 [Randy Romanski; reports pending appeal by smokers will be resolved in fall.] [Asserts AG views situation as having achieved finality, based on Judge’s behavior.] * Direct links to each AG may be achieved by invoking the WWW-sites that are listed here: http://www.naag.org/aglinks.htm. Of interest, for example, is the following information from the Rhode Island AG’s Web Site: [http://www.riag.state.ri.us/Press/May99/0510199901.htm]: “A $15,000 fine was paid to the Department of Attorney General by United States Tobacco Company (UST). The fine is part of the settlement with the AG for making misleading claims about the lack of scientific facts to establish smokeless tobacco to be a cause of oral cancer. The comments, a violation of the Consent Decree and Final Judgement between the State of Rhode Island and the Tobacco Companies, were made by a UST spokesperson to the Providence Journal in an article published April 7, 1999.”
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Nevertheless, having surfed-around, I find that none of them provide access to documents that have been filed and formal releases that have been court-approved. They all provide email, and this approach has been adopted to acquire updates to supplement the above database. [I have sent prior copies of this memo to those AG’s whose e-mail addresses appear herein.]
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