The opinion of the court was delivered by: GLADYS KESSLER, District Judge
This matter is now before the Court on the Defendants'*fn1 Motion
for Summary Judgment on the Grounds that the Government's RICO Claims
Violate Separation of Powers ("Motion"). Upon consideration of the
Motion, the Opposition, the Reply and the entire record herein, and for
the reasons set forth below, the Defendants' Motion is denied.
Plaintiff, the United States of America ("the Government") has brought
this suit against Defendants pursuant to Sections 1962(c) and (d) of the
Racketeer Influenced and Corrupt Organizations Act
("RICO), 18 U.S.C. § 1961 et seq.*fn2 Defendants are
manufacturers of cigarettes and other tobacco-related entities. The
Government seeks injunctive relief and $289 billion*fn3 for what it
alleges to be a four-decade long unlawful conspiracy to intentionally and
willfully deceive and mislead the American public. The Government's
factual allegations have been described in some detail in prior opinions,
and need not be repeated here. See e.g., United States v.
Philip Morris Inc., 116 F. Supp.2d 131, 136-138 (D.D.C. 2000).
In their Motion, Defendants seek summary judgment on the basis of the
separation of powers doctrine. This doctrine reflects the "basic
principle of our constitutional scheme that one branch of the Government
may not intrude upon the central prerogatives of another." Loving v.
United States, 517 U.S. 748, 757 (1996). According to the
Defendants, the Government is improperly "usurping the legislative
function" by bringing this RICO suit. Defs.' Mem. in Supp. at 2. They do
not deny that the conduct alleged falls within the scope of RICO.
Instead, they argue that Congress has created a distinct regulatory
regime for tobacco, one which
reserves for Congress itself the power to regulate in this area and
that the Government's claims and proposed relief "seriously impinge" on
this reserved authority. Defs.' Mem. in Supp. at 9. For the reasons set
forth below, Defendants are not entitled to summary judgment on this
II. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment
is appropriate if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
Material facts are those that "might affect the outcome of the suit under
the governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In considering a summary judgment motion, "the evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255; see also Washington Post
Co. v. United States Dep't of Health and Human Servs.,
865 F.2d 320, 325 (D.C. Cir. 1989). In this Motion we are
concerned with issues of law, rather than factual disputes.
A. Tobacco-Specific Legislation
Congress has enacted legislation addressing tobacco. and health on at
least six separation occasions since 1965. FDA v. Brown &
Williamson Tobacco. Corp., 529 U.S. 120, 137 (2000).
Through this legislation Congress has created a "distinct scheme to
regulate the sale of tobacco. products." Id. at 157. For
example, in the Federal Cigarette Labeling and Advertising Act ("FCLAA"
or "Labeling Act"), 15 U.S.C. § 1331-40, Congress mandated the
warnings that appear on every package of cigarettes sold in the United
States, 15 U.S.C. § 1333. Congress has also, among other things,
prohibited the advertisement of tobacco. through "any medium of
electronic communication," subject to regulation by the Federal
Communications Commission, 15 U.S.C. § 1335; required the Secretary
of HHS to report to Congress concerning the addictive nature of tobacco,
42 U.S.C. § 290aa et. seq., and created incentives for
States to regulate the sale of tobacco. products to minors,
15 U.S.C. § 300x et.seq.
Defendants argue that this tobacco-specific legislation, viewed
collectively, comprises a regulatory scheme in which Congress has
expressed its intent to reserve to itself alone the authority to regulate
tobacco, except where it has made some express delegation of that
authority. Therefore, according to
Defendants, the Government's RICO claims must be dismissed because
they impinge on this exclusive authority.
In a prior motion Defendants argued that certain of the Government's
claims came within the exclusive jurisdiction of the FTC and would
effectively repeal the tobacco. regulatory regime that was purportedly
administered by that agency alone. See Joint Defs.' Mot. for
Partial Summary Judgment on Advertising, Marketing, Promotion and Warning
Claims ("FTC Motion"). The court rejected this argument because it found
that RICO did not conflict with either the FTC Act or the FCLAA.
United States v. Philip Morris, 263 F. Supp.2d 72 (D.D.C.
2003) ("FTC ...