The opinion of the court was delivered by: GLADYS KESSLER, District Judge
This matter is now before the Court on Defendants'*fn1
Motion for Partial Summary Judgment With Respect to the
Government's Nicotine Manipulation and Addiction Allegations
("Motion"). Upon consideration of the Motion, the Government's
Opposition, the Reply, and the entire record herein, and for the
reasons stated below, the Motion is denied.
Plaintiff, the United States of America (the "Government"), has
brought this suit against the 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 billions of dollars 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.
In the present Motion, Defendants challenge one sub-scheme of
the overarching conspiracy, namely the Government's allegations
that they "understood nicotine's addictive properties" and have
been "developing and using highly sophisticated technologies to
deliver nicotine in precisely calculated ways that are more than
sufficient to create and sustain addiction." Id. at ¶¶ 72, 77.
In support of these allegations, the Government offered, among
other pieces of evidence, the testimony of the chief executive
officers ("CEOs") of six major American cigarette manufacturers
at the televised Congressional hearings held by Rep. Henry Waxman in
April, 1994 examining whether nicotine should be regulated as a
drug under the Food and Drug Administration Act,
21 U.S.C. § 321(G) (2001) ("Waxman Hearings"). At those hearings, each of the
CEOs denied under oath any manipulation of nicotine content. The
Government claims that this testimony constituted two acts of
fraudulent denial of nicotine manipulation in furtherance of the
alleged conspiracy to mislead the American public. The Government
also relies on twenty-two other acts it alleges were in
furtherance of a fraudulent scheme to deny that smoking is
Defendants deny all the nicotine manipulation and addiction
claims and ask the Court to dismiss with prejudice the alleged
racketeering acts related to this sub-scheme.*fn3 See
Motion, at 2.
Defendants advance three principal arguments why these racketeering acts should be dismissed: (1) their opinions
concerning nicotine manipulation and addiction do not constitute
RICO predicate acts of mail and wire fraud; (2) their conduct is
protected by the First Amendment; and (3) the testimony of the
CEOs before Congress is afforded absolute immunity under the
None of these arguments entitle Defendants to summary judgment.
First, the nicotine manipulation and addiction acts cannot be
assessed in isolation, but must be evaluated in the context of
the totality of the Government's fraud case. Second, whether
Defendants have manipulated the nicotine content of their
cigarettes, whether they have falsely denied doing so, and
whether they have falsely denied that nicotine is addictive,
involve disputed factual issues of intent and knowledge that can
only be resolved at trial. Third, Defendants' sworn denials of
nicotine manipulation and addiction are not immune from liability
under common law. Finally, whether any of the challenged
racketeering acts are properly defined as "petitioning," and thus
immunized under the Noerr-Pennington doctrine, is a factual
matter in dispute which must also be resolved at trial.
Consequently, the Government must be given the opportunity to
prove its claims about Defendants' alleged nicotine manipulation
and addiction sub-scheme at trial.
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 nonmovant 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).
Additionally, "if the evidence presented on a dispositive issue
is subject to conflicting interpretations, or reasonable persons
might differ as to its significance, summary judgment is
improper." Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir.
1986). At the summary judgment stage, "the court is not to make
credibility determinations or weigh the evidence." Dunway v.
Int'l Brotherhood of Teamsters, 310 F.3d 758, 761 (D.C. Cir.
III. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT
A. Claims Relating to Nicotine Manipulation and Addiction Must
Be Decided in the Context of the Entire Alleged Scheme to
The Government has alleged the existence of a pervasive,
overarching scheme to defraud the public of money which extends
back fifty years and continues to the present. According to the
Government, this conspiracy has been carried out through a
variety of sub-schemes, one of which is the nicotine manipulation and
addiction sub-scheme. The other sub-schemes allege that
Defendants have (1) advertised, marketed, and promoted cigarettes
to children while repeatedly denying such conduct, Am. Compl., at
¶¶ 94-97, 100; (2) disseminated false and misleading statements
denying that smoking causes disease, United States' Master
Rule 7.1/56.1 Statement of Material Facts Demonstrating the Existence
of Genuine Issues for Trial ("Master Stmt"), ¶¶ 227-384, 572-672;
(3) fraudulently promised to sponsor independent research into
the health risks of smoking, id. at ...