Overlawyered: Chronicling The High Cost Of Our Legal System

Tobacco suit stresses race angle

“Accusing tobacco companies of preying on black people, a Miami attorney is seeking $1 billion in damages on behalf of a Coral Springs, Fla., woman whose mother and grandmother both died of smoking-related health problems.” Reporter Forrest Norman of the Daily Business Review, the south Florida legal paper, quotes me expressing skeptical opinions about the […]

“Accusing tobacco companies of preying on black people, a Miami attorney is seeking $1 billion in damages on behalf of a Coral Springs, Fla., woman whose mother and grandmother both died of smoking-related health problems.” Reporter Forrest Norman of the Daily Business Review, the south Florida legal paper, quotes me expressing skeptical opinions about the suit. In Florida’s earlier Engle tobacco litigation, plaintiff’s lawyer Stanley Rosenblatt came in for sharp criticism at the appeals level for the way he demagogued the racial angle; I covered the case here, here and here. This week’s case was brought by solo practitioner J.B. Harris, who said of the tobacco-company defendants, “If I could, I’d try to have them charged with genocide.” (“Suit Accuses Tobacco Firms of Targeting Black Consumers, Seeks $1 Billion in Damages”, Jun. 6).

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5 Comments

  • There is little doubt that the tobacco companies marketed their products based on color. Unfortunately for Mr. Harris, that color was green.

    • By Mahlon

  • Funny that race is considered an angle. It certainly was an angle for the marketing strategists. As mentioned in the cited article, the market report itself clearly stated the following:

    “Blacks tend to buy less things to improve themselves, they appear less concerned about health-related issues (i.e., blacks don’t necessarily identify with the motivations of the “Concerned” and “Moderation” segments) and are more prone to buy on impulse.”

    “Blacks have less concern for the future and live from one day to the next. They buy products for instant gratification.”

    So, yes, green was the bottom line for the companies, but they definitely used racial (indeed, racist) marketing to get there.

  • If different social subgroups don’t respond to different advertising differently, why are there radio stations, cable television stations, and magazines that cater to specific social subgroups? (As Walter noted in one of his earlier pieces, it was considered racism to fail to provide advertising revenue to such media sources.)

    Ms. Franklin’s remark seems to think that tobacco companies should be liable because they tried to understand their customers, and is offended by the terms used by marketers. From whence does causation come such that the language of the memo is remotely relevant? Or is Ms. Franklin contending the memo itself grounds for liability? On what legal grounds? Or does she think that it remotely resembles justice to have an attorney smear a party with irrelevant inflammatory remarks and ask for a jury award unrelated to the material facts of the case?

    Every marketer looks at how different subgroups respond to their products differently so they can target their marketing strategies to appeal to the subgroup. (Note how the snippet of the document Franklin quotes mentions “Concerned” and “Moderation” “segments”, segments that have no racial definition.) Not just tobacco companies.

    • By Ted

  • Thanks for the free press Overlawyered. Try reading my complaint if you have any doubts about Big Tobacco’s angle.

  • The complaint is now on-line. (Thanks to Mr. Harris for emailing us a copy.) Note:

    1) the use of irrelevant material designed to unfairly prejudice the jury (such as the fact that a slave developed a tobacco curing technique in the 19th century or that one tobacco company sponsored Amos & Andy);

    2) the frivolous claim for a billion dollars in damages;

    3) the frivolous citation of advertising techniques used for cigarettes the plaintiffs did not even smoke (for example, one of the decedent plaintiffs died in Florida in 1994, but a 1995 advertising campaign in Boston is cited);

    4) the failure to mention the age of the decedents when they died.

    In effect, the complaint alleges that tobacco companies tried to sell a legal product, found that standard advertising techniques designed for whites were less effective for African-Americans, and developed specific advertising techniques for African-Americans. For this they are accused of racism, though the “racism” is not in itself actionable. Purely prejudicial, and arguably unethical under the rarely-enforced Florida Rule of Professional Conduct 4-3.6.

    As Walter notes in the above links, the suit attempts to rely on the highly questionable Engle verdict.

    • By Ted