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May 6, 2004.


The opinion of the court was delivered by: GLADYS KESSLER, District Judge


This matter is now before the Court on the United States' Motion for Partial Summary Judgment Regarding Defendants' Affirmative Defenses That the RICO Claims and Sought Relief Are Prohibited by the Tenth Amendment and Separation of Powers and That Defendants Are Not Jointly and Severally Liable for any Disgorgement Ordered by the Court ("Motion"). Defendants*fn1 have asserted as affirmative defenses that the Government's RICO claims and the relief it seeks are prohibited by the Tenth Amendment and separation of powers principles. They also argue that they are not jointly and severally liable for any potential disgorgement which might be ordered by the Court. The United States argues in this Motion that each of these affirmative defenses is insufficient as a matter of law and must be dismissed.*fn2

Upon consideration of the Motion, the Opposition, the Reply and the entire record herein, and for the reasons set forth below, the United States' Motion is granted.


  A. Factual Allegations

  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.*fn3 Defendants are manufacturers of cigarettes and other tobacco-related entities. The Government seeks injunctive relief and $289 billion*fn4 for what it alleges to be an unlawful conspiracy to deceive the American public.

  The Government's Amended Complaint describes a four-decade long conspiracy, dating back to at least 1953, to intentionally and willfully deceive and mislead the American public about, among other things, the harmful nature of tobacco products, the addictive nature of nicotine, and the possibility of manufacturing safer and less addictive tobacco products. Amended Complaint ("Am. Compl.") at ¶ 3. According to the Government, the underlying strategy Defendants adopted was to deny that smoking caused disease and to consistently maintain that whether smoking caused disease was an "open question." Am. Compl. at 5 34. In furtherance of that strategy, Defendants allegedly issued deceptive press releases, published false and misleading articles, destroyed and concealed documents which indicated that there was in fact a correlation between smoking and disease, and aggressively targeted children as potential new smokers. Am. Compl. at ¶ 36.*fn5

  B. Affirmative Defenses

  Defendants vehemently deny all the Government's claims and assert a variety of affirmative defenses to the allegations in their Answers, responses to interrogatories, and in the Joint Defendants' Preliminary Proposed Conclusions of Law Regarding Affirmative Defenses ("JDPPCL"). The affirmative defenses they assert include separation of powers, the Tenth Amendment, and a denial of joint and several liability for any disgorgement the Court may order. Defendants proffer different rationales to justify each of these affirmative defenses. As to their separation of powers defense, Defendants assert that the Attorney General's enforcement of RICO is an encroachment on Congress' reservation unto itself of the regulation of tobacco. See Defs.' Opp' n at 2. As to their Tenth Amendment defense, Defendants initially argued that the activities at issue in this case do not constitute "interstate commerce" for purposes of the Commerce Clause and, therefore, the federal government lacks the authority to bring this action. See JDPPCL at 903-05. Defendants now assert that the Government's request for federal enforcement of state and local ordinances in this case violates "fundamental principles of federalism" in violation of the Tenth Amendment. Defs.' Opp'n at 17. Finally, Defendants argue that holding them jointly and severally liable would require each to disgorge more than its ill-gotten gains and would conflict with the holding of this Court that under Section 1964(a), any relief granted must be equitable and not punitive. Defs.' Opp'n at 24.


  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 this Motion, the Court is considering only issues of law even though the factual context surrounding those ...

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