Big Tobacco
Hagens Berman versus Big Tobacco
Hagens Berman Sobol Shapiro played a major role in representing state government in litigation against the tobacco industry. Because of the unprecedented nature of this litigation, Hagens Berman Sobol Shapiro's role and approach is detailed here.
A Trial-Hardened Litigation Team
In the State Attorneys General actions, only two states actually took their cases to trial - Washington and Minnesota. This means that in a government tobacco law enforcement and medical cost recovery action, only two private firms in the entire country have trial experience against the industry - Hagens Berman Sobol Shapiro is one of those firms.In the Washington case, the firm's managing partner Steve Berman was co-lead trial counsel. In this role at trial, he participated in voir dire, delivered the majority of the State's opening statement and presented witnesses, two of whom would become the most important witnesses in the liability phase of the case (Dr. Jack Henningfield, an expert on cigarette design, and Dr. William Farone, former director of research for Philip Morris). Steve also chaired major strategic decisions, and the firm assisted in the preparation of other witnesses presented by the State's other trial lawyers in the case.
An Emphasis on Law Enforcement
Hagens Berman Sobol Shapiro was instrumental in developing what came to be accepted as the predominant legal tactic to use against the tobacco industry; to wit, emphasizing traditional law enforcement claims such as state consumer protection, antitrust and racketeering laws. Before Hagens Berman Sobol Shapiro's involvement in the state cases, the predominant claims being pursued by most of the states were traditional tort claims, which proved in many states to be unsuccessful. With the exception of the Idaho case, not a single court in a case where Hagens Berman Sobol Shapiro served as private counsel to a state dismissed a state's consumer protection or antitrust claims.In three states - Arizona, Ohio and Oregon - Hagens Berman Sobol Shapiro took the lead in pressing the respective states' racketeering statutes and, as a result, the tobacco defendants were faced with the very real prospect of a profits disgorgement remedy, penalties and, in the case of Ohio, the payment of double damages.
Excellent Witness Rapport
One of the keys to beating the tobacco industry lies with presenting the proper witnesses, both expert and lay witnesses. With so many states in litigation against the industry, the time and resources of many of the important expert witnesses were taxed. As a result, several witnesses decided to limit their involvement to a small number of states. We found that some of these witnesses most approved of the manner in which Hagens Berman Sobol Shapiro assisted in the preparation and presentation of their testimony. Therefore, our firm and the states we worked with became priority clients of these witnesses.
Legal Research and Briefing
With the emphasis on law enforcement claims, Hagens Berman Sobol Shapiro attorneys built on their already considerable experience utilizing consumer statutes and became experts in consumer protection, antitrust and racketeering laws in the states the firm represented. Because many of these state statutes were patterned after and followed federal law, our expertise with the FTC Act, the Clayton and Sherman Acts, and federal RICO grew. In each state we represented, Hagens Berman Sobol Shapiro took the lead in opposing defendants' onslaught of motions to dismiss and, where applicable, motions for summary judgment. As the record reflects, we achieved a remarkable degree of success in these endeavors.
Liability Document Database
Hagens Berman Sobol Shapiro helped initiate and coordinate the so-called multi-state document review project. This was instituted to ensure that all relevant documents were produced, reviewed and selected for use by the states in the Attorneys General actions. More than 30 million documents were reviewed under the firm's supervision by 12 lawyers from the firm and more than 40 assistant attorneys general. As a result of these efforts, we have compiled comprehensive liability documents that are readily searchable by employing a variety of search criteria and are easily accessible. In addition, having gone to trial against the industry, we organized the best or "hottest" liability documents in our trial exhibit notebooks.
De-Privileging Expertise
Some of the most damaging liability documents for the industry were and are improperly cloaked from discovery by false claims of attorney-client and work product privilege. Many of these documents were brought to light in the Minnesota litigation, but thousands remained. In a coordinated strategy employed across many of the states that Hagens Berman Sobol Shapiro represented, we continued the de-privileging of these important documents. This effort required countless hours in hearings with judges and special masters, in addition to extensive briefing.
A Focus on Targeting Minors
In tandem with our general law enforcement approach, Hagens Berman Sobol Shapiro focused the state legal claims on the industry's deplorable practice of luring children to tobacco use. As part of this focus, in Arizona and Ohio we commissioned an expert survey of adolescents' perception of tobacco advertising in general and, more specifically, on the deception of RJR's Winston 'No Bull/No Additives' campaign. The survey data revealed that the vast majority of minors exposed to the campaign believed that the 'No Additives' slogan meant that the cigarette was either less addicting, safer or less harmful to health (when, of course, this was not true). This campaign was the target of a preliminary injunction motion in the Arizona case that was still pending when the states settled their cases. On March 3, 1998, the FTC announced it settled a claim it had subsequently filed on this issue based on our work in Arizona.
Testing Our Trial Strategy With Focus Group Studies
Hagens Berman Sobol Shapiro conducted numerous focus groups in different states, thus acquiring unparalleled experience with the reactions of potential jurors.
Serving the Elected Client
Hagens Berman Sobol Shapiro was chosen, after competitive bidding, as counsel for 13 states, including those with Democratic and Republican leadership. The reason for our retention, in addition to excellent trial skills and complex litigation service, was our sensitivity to the needs of clients who were elected officials.
Key Role in the National Settlement Negotiations
Steve Berman and Steven Mitchell were both heavily involved in the proposed June 20, 1997 national settlement and the November 1998 final state settlement that settled all of the state's cases for $206 billion. As such, both have unparalleled experience in negotiating with tobacco industry lawyers and the tobacco companies' CEOs.
