It’s a distraction, the same as using a cell phone while driving, claim state reps John McKeon (D-Essex) and Loretta Weinberg (D-Bergen), who are co-sponsoring a bill that would impose $250 fines on those caught with lighted cigarettes behind the wheels of their own cars. The bill is given scant chance of passage — this year, at least (“No butts behind wheel? N.J. moves on smokers”, AP/MSNBC, Jul. 25; “Jersey going too far with anti-smoking bill” (editorial), Camden Courier-Post, Jul. 27; Reason “Hit and Run”, Jul. 25; Outside the Beltway, Jul. 25). Blog reaction has been overwhelmingly negative. Mark at Curious Character (Jul. 27) believes “it’s bad policy to pass laws that you can’t (and won’t) be able to enforce”. Functional Ambivalent (Jul. 26) points out that a study of drivers’ distraction-related accidents shows drivers’ fumbling with climate controls and stereo systems causes many more accidents than fumbling with cigarettes, but no one is proposing to ban music in cars (yet). Jeff Goldstein (Jul. 25) sees a Kelo angle, while KipEsquire (Jul. 25) points out that smokers allowed to indulge in their habit make calmer drivers than those suffering from prolonged nicotine deprivation. For more on the ever-widening reach of smoking bans, see our tobacco page, including Jul. 12, 2005 and Jul. 29, 2004 (smoking in apartments and condos), Jun. 24, 2004 (on the beach), and May 29, 2004 (in cars when children are present).
Posts Tagged ‘tobacco’
Federal tobacco suit update
In the federal tobacco suit (Jun. 21, Jun. 13), the government has asked the Supreme Court to overrule the D.C. Circuit and give the government the legal authority to pursue $280 billion in a disgorgement remedy. There’s very little chance the Court will take the interlocutory appeal. (Eric Lichtblau, “U.S. Seeks Higher Damages in Tobacco Industry Suit”, NY Times, Jul. 19); SCOTUSblog, Jul. 18; certiorari petition). Meanwhile, Judge Gladys Kessler has taken the unusual (and questionable) step of permitting “public-interest” groups to intervene in the case and take over the government’s argument for damages, which is perhaps a clue where she stands on the litigation, leaving open the question of whether the D.C. Circuit will countenance the result. (Mark Kaufman, “A Late Twist in the Tobacco Case”, Washington Post, Jul. 23; motion to intervene).
Bootleg chow
Gunner at No Quarters (Jul. 13) rounds up material on underground restaurants in the U.S. and Italy. One factor operating in their favor: the chance to set smoking policies that please the clientele as opposed to the authorities.
Landlords liable for permitting smoking?
Anti-smoking activists are crowing over a ruling upholding a Boston landlord’s eviction of tenants for smoking within a rented condominium unit. The court’s ruling itself was not necessarily unreasonable, since other residents had complained about the tenants’ habit and the landlord said he was facing condominium association fines of $75/day if he let it persist. Note, however, the following passage:
In the face of an increasing number of nonsmoking tenants who are willing to assert their rights in multiple-unit dwellings, a growing number of property owners will choose to make their apartments and condos smoke-free, said [landlord Neil] Harwood’s attorney, Peter Brooks, a partner in the Boston office of Chicago’s Seyfarth Shaw.
A new issue is the liability of landlords for allowing smoking in their building and the additional risks they face, Brooks said.
“Those who want to avoid it will turn nonsmoking, not just in an eviction case, but a case against a landlord brought by a nonsmoking tenant.”
And of course GWU lawprof and perennial antipode of this site John Banzhaf gets his say:
“Ten years ago, most people would assume that smoking in one’s own abode — their apartment or condo — would be protected and nothing could be done about it, like the ‘old man in his castle’ idea,” Banzhaf said.
But that concept has been eroded by several cases, Banzhaf noted, including orders prohibiting parents from smoking around their children or foster children, and court rulings that secondhand smoke entering one’s home is actionable if it adversely affects others.
(Stefanie Shaffer, “Mass. Court Upholds Eviction of Condo Tenants for Smoking”, National Law Journal, Jul. 8).
Update: U.K. court rejects smoker’s lawsuit
Once again the inevitable worldwide triumph of tobacco litigation turns out to be not so inevitable after all: “In the first case of its kind in Britain, a judge rejected Margaret McTear’s attempt to sue Imperial Tobacco over the death of her husband Alf 12 years ago. … Lord Nimmo Smith, at the Court of Session in Edinburgh, said the test case failed on every count. He ruled that Mr McTear knew what he was doing and there was no proof that his cancer was caused by a particular cigarette brand.” (Auslan Cramb, “Widow fails to pin blame on tobacco company”, Daily Telegraph, Jun. 1). Ever the gracious loser, Northeastern University lawprof-advocate and interest-nondiscloser Richard Daynard called the ruling “an extraordinarily ignorant opinion”: “The UK suffers from a conservative, narrow-minded judiciary who don’t know or don’t want to know the relevant medical and social facts,” he said. (Stephen Davis, “Smokescreen”, New Statesman, Jun. 27)($).
“How the government blew $135 million in six years”
Here’s a Business Week writer who shares our general view of the federal tobacco suit: “The real affront is that this ill-conceived legal campaign was not halted years ago. … The Justice Dept. took a mountain of evidence, much of it uncovered by other investigators, applied speculative legal theories, and then proceeded to seek ridiculously overinflated damages. Now most of its original case has been thrown out by the courts, and the agency is scrambling to devise a remedy that will justify all the effort. …If they indeed are trying to get rid of a Clinton-era case they have never embraced ideologically, as Waxman suggests, the weakness of the case itself only made that all too easy to do.” (Nanette Byrnes, “The Tobacco Suit That’s Going Up In Smoke”, Jun. 27). “I don’t know that what the Bush administration has done is any more politically based than what Clinton did in bringing the case in the first place,” Paul Honigberg, a member of the Justice Department’s legal team on the case until September 2001, told the New York Times. (Eric Lichtblau, “Political Leanings Were Always Factor in Tobacco Suit”, Jun. 19)(via Orin Kerr). Before the Clinton White House intervened in the late 1990s, the Justice Department had taken the position that the federal government had no cause of action against the tobacco companies of the sort later asserted. For more, see Sept. 29 and Sept. 23, 1999 (filing of suit), Sept. 21, 2004 (start of trial), and more recently Feb. 5, Jun. 13, etc.
Feds’ tobacco-suit shift, cont’d
L.A. Times has some good coverage of the Justice Department’s much-criticized decision last week (see Jun. 10) to scale back the damages it’s asking in its wretched Clinton-legacy tobacco suit:
Law professor Turley [Jonathan Turley of George Washington University, not suspected of overmuch sympathy with the views of this page] said he believed “legal realism and political realism” were the main reasons for the 11th-hour retreat.
The Justice Department had “seemed to be in institutional denial,” Turley said of the consequences of the appeals court defeat [in February, before a D.C. Circuit panel]. “By reducing the (requested) damages it brings the case more in line with that ruling.”
Noting that the case has lasted six years at huge cost to the government, Turley said Justice officials are “very sensitive about the ‘resume factor’ in this case.” The change “lays the groundwork for the spin that they labeled the industry as racketeers and they got the damages they asked for,” he said.
Tobacco lawyers have ridiculed the new proposal. Ted Wells, a lawyer for Philip Morris USA, said it was a $280 billion case, then a $130 billion case, now a $10 billion case and “eventually it will be a zero-dollar case.”
(Myron Levin, “Civil case against tobacco is turning to ash”, Los Angeles Times/Detroit News, Jun. 11).
Feds’ supposed tobacco turnaround
Jacob Sullum has some comments (see May 22, Feb. 5 and links from there).
State AGs versus smokers’ pocketbooks
AP takes a look at the relentless, money-driven efforts of state law enforcement officials and tobacco majors in league together to suppress competition from upstart cigarette-sellers, a story covered often on these columns (see Feb. 15, 2005; Feb. 28 and May 11, 2004, etc.) “‘It’s 46 state attorneys general, the 200 or so wealthiest trial lawyers in the world and the six largest tobacco companies against a bunch of very small businesses who are losing money,’ said Jeremy Bulow, an economics professor at Stanford University.” (Stephanie Stoughton, “Landmark tobacco settlement faces increasing challenges”, AP/Maryville (Tenn.) Daily Times, May 31).
Also new at Point of Law
If you’re not visiting our sister site Point of Law regularly you’re missing out on an awful lot. F’rinstance: contingency-fee tax collection in Mississippi, courtesy of that state’s AG; Alan Dershowitz’s coincidental whereabouts during the Larry Summers flap; liability reform in Georgia, South Carolina and Missouri, and (on asbestos) in Texas and Florida; topical TrackBack spam pings; the “Constitution in Exile” brouhaha; overtime lawsuits; crying wolf on class action reform; pressure for cooperation in white-collar crime cases; how Westchester County, N.Y. residents subsidize wildman enviro-litigator Robert F. Kennedy, Jr. and California residents subsidize trial-lawyer front groups as well as propaganda for antitrust enforcement; jury selection in Scotland; several posts on The American Lawyer’s recent special issue, “Plaintiff’s Power”; the supposed hypocrisy of lawsuit reformers; high-tech shareholder suits; much, much more from Ted on silicosis doctors’ testimony; Mike DeBow on Ford Crown Victoria suits; and Jim Copland on the Second Circuit’s dismissal of a tobacco class action. And don’t miss Ted’s priceless story of what happened to ATLA’s own insurance company (did you really think those guys would be good at running one?).