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 Dismissing Defendants'
Affirmative Defenses Asserting Res Judicata, Collateral Estoppel,
Release, Accord and Satisfaction, and Mootness ("Motion"). Upon
consideration of the Motion, Defendants' Opposition, the Reply
and the entire record herein, and for the reasons stated below,
the Motion is granted.
Plaintiff, the United States of America (the "Government") has
brought this suit against Defendants*fn1 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 disgorgement of $280
billion dollars*fn3 of ill-gotten gains for what it alleges
to be Defendants' unlawful conspiracy to deceive the American
public. The Government's Amended Complaint describes a
four-decade long conspiracy, dating from 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.
Defendants deny all the Government's claims and assert a
variety of affirmative defenses in their Answers, responses to
interrogatories, and in the Joint Defendants' Preliminary
Proposed Conclusions of Law Regarding Affirmative Defenses. Some
of those affirmative defenses are based upon the Master Settlement
Agreement ("MSA"), a settlement between all but two of the
Defendants and the 50 states and the District of Columbia to
resolve state tobacco litigation. Defendants argue that the MSA,
in and of itself, either precludes the Government's litigation of
its RICO claims or renders this action moot because the MSA
already provides much of the relief which the Government seeks.
See Defs.' Opp'n, at 5. In this Motion, the Government seeks
partial summary judgment dismissing these affirmative defenses.
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. See 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
Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
Additionally, under Rule 56(c), in order to defeat summary
judgment dismissing any affirmative defense, Defendants must make a showing sufficient to establish the existence of an element
essential to that affirmative defense. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
III. THE MSA DOES NOT, AS A MATTER OF LAW, RENDER THE
GOVERNMENT'S CLAIMS MOOT
Defendants' affirmative defense of mootness rests entirely on
the MSA. They claim that the Government is not entitled to any of
the relief it seeks because that relief is duplicative of
existing and effective mechanisms provided by the MSA. See
Defs.' Opp'n, at 5. However, Defendants continue to confuse the
two fundamental components of every lawsuit, namely liability and
remedy. Affirmative defenses apply only to the issue of
liability, not remedy. This Court has already held on two
occasions that the MSA, in and of itself, does not preclude a
finding of RICO liability in this action.*fn4 See Mem. Op.
to Order #537, at 4-8 (May 6, 2004); United States v. Philip
Morris, 116 F. Supp.2d at 149. For all the reasons set forth in
those two opinions, existence of and compliance with the MSA,
even if proven, does not render the Government's claims for
liability moot.*fn5 IV. THE GOVERNMENT IS ENTITLED TO SUMMARY JUDGMENT ON ALL
AFFIRMATIVE DEFENSES WHICH DEFENDANTS DID NOT ADDRESS
With respect to the affirmative defenses of res judicata,
collateral estoppel, release, and accord and satisfaction,
Defendants, in their Opposition, neither contest material facts
declared by the Government nor counter its arguments as to why it
is entitled to judgment as a matter of law. Defendants relegate
the discussion of three of these four defenses (release is never
mentioned at all) to a single footnote in which they cite no
legal authority but ask that these defenses not be dismissed
because "they are plainly applicable." See Defs.' Opp'n, at 6
Accordingly, Defendants have effectively failed to oppose the
Government's Motion as to these defenses. See Local R. 7.1(b);
United States v. Real Property Identified as Parcel 03179-005R,
287 F. Supp.2d 45, 61 (D.D.C. 2003) ("when [defendant] files
opposition to motion for summary judgment addressing only certain
arguments raised by [plaintiff], court may treat those arguments that
[defendant] failed to address as conceded under local rule").
Thus, the Government is entitled to judgment as a matter of law
dismissing the affirmative defenses of res judicata, collateral
estoppel, release, and accord and satisfaction.
For all the foregoing reasons, the Government is entitled to
partial summary judgment on the affirmative defenses of res
judicata, collateral estoppel, release, accord and ...