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July 9, 2004.

PHILIP MORRIS USA, Inc. f/k/a Philip Morris, Inc. et al. Defendants.

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


This matter is now before the Court on Defendants' Motion for Partial Summary Judgment on Claims That Defendants Suppressed the Development of Potentially Less Hazardous Cigarettes ("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*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 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.


  RICO prohibits entities from engaging in racketeering activity associated with an enterprise. To prove the alleged RICO violations, the Government must show: (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity." Salinas v. United States, 522 U.S. 52, 62 (1997). Racketeering activity includes, among other things, acts prohibited by any one of a number of enumerated criminal statutes. 18 U.S.C. § 1961(1). A "pattern" is demonstrated by two or more instances of "racketeering activity" that occur within 10 years of one another. 18 U.S.C. § 1961(5). In this case, the racketeering acts relied on by the Government are alleged to be violations of 18 U.S.C. § 1341 (mail fraud) and 1343 (wire fraud). To demonstrate mail fraud or wire fraud, the Government must prove: (1) a scheme to defraud and (2) use of mails or interstate wire communications to further that scheme. United States v. Winstead, 74 F.3d 1313, 1317 (D.C. Cir. 1996).

  In the present Motion, Defendants seek partial summary judgment on the claims that they engaged in a "concerted plan not to make cigarettes less hazardous" through acts of mail and wire fraud. See Motion, at 1. First, Defendants argue that such claims must fail in light of the Government's own policy "that a safe cigarette cannot be developed," a policy which Defendants claim has undermined their efforts to develop and market such safer products. Id. at 14. Second, Defendants argue that these claims fail to establish a prima facie violation of the mail and wire fraud statutes because the Government has not shown a "scheme to defraud" with respect to less hazardous cigarettes or, if it has, has not shown how the purpose of any such scheme is to deprive a person of money or property. See id. at 16. Finally, Defendants argue that the equitable doctrines of unclean hands and in pari delicto bar the Government's pursuit of these claims because it has acted in bad faith with respect to the development and endorsement of less hazardous cigarettes. Id. at 13.*fn3

  In turn, the Government responds that Defendants' present Motion incorrectly treats the suppression of less hazardous cigarettes as an independent and freestanding scheme when, in fact, it is only a component of the overarching scheme to preserve and expand the market for cigarettes, maximize profits, and avoid adverse litigation verdicts. See Govt's Opp'n., at 3-4. For this reason, the Government argues that it is not required to prove that there were specific mailings and wire transmissions in furtherance of the scheme to suppress the development of less hazardous cigarettes. See id. at 13. Finally, the Government argues that the defenses of unclean hands and in pari delicto cannot be asserted against the United States in these circumstances. Id. at 23.

  A. 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. 2002).

  B. There Are Material Facts in Dispute About Whether Defendants Suppressed the Development and Marketing of Less Hazardous Cigarettes

  The Government disputes almost every factual assertion contained in Defendants' Motion.

  First, the Government challenges Defendants' claim that their efforts to develop and market potentially less hazardous cigarettes were thwarted by a Governmental policy aimed at eradicating smoking rather than encouraging consumers to try "safer" cigarettes. See Govt's Opp'n., at 4. The Government argues that Defendants' efforts to develop and market these products were not in earnest. In particular, the Government asserts that Defendants considered the research or marketing of a cigarette acknowledged to be less harmful to be an implicit admission that other cigarettes were more hazardous. Id. at 6. For that reason, Defendants' continuing public denials of harms from smoking precluded them from incorporating design features or processes which would reduce the hazards of ...

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