High-Impact Litigation
What began in 1971 as a minor inconvenience to air traveling smokers has turned more recently into one of the most heatedly discussed topics and social issues seen in the U.S. history. The issue has even sparked a new class-action feeding frenzy for money-hungry trial lawyers looking to make a large buck off big business.
In 1971, United Airlines introduced separate sections for smokers and nonsmokers on their airplanes; this action was followed by the first federal restriction on smoking in public places when the Civil Aeronautics Board required all airlines to create nonsmoking sections for their flights in 1973. Fifteen years later, in 1988, Congress banned smoking on domestic flights of less than two hours. Today, not only is smoking banned on domestic and international flights, but smoking is also banned inside most airports.
Recently, the Federal government extended its reach into the fray by sending state funded trial lawyers to do battle with the major tobacco companies in 1998, which some say was a result of the failed tobacco legislation that occurred a year earlier.
In the mid 1980's, America had its first glimpse more health conscious nation. With one out of every four Americans being obese and the "war on drugs" just beginning, our nation made a decisive move, as a whole, to bring public health to the forefront of public agenda. By the early 1990s, our nation moved into a new era of health hypersensitivity with: low-calorie foods, more medical research, health research, junk science, worthless exercise machines, as well as an attitude that made us more prone to read food labels carefully and begin eating more grains, fruits, fish and vegetables.
The effects of this movement are still kicking strong today, with new "miracle weight-loss" diets being released ever other week, an overabundance of work out machines, videos and routines, anti-smoking ads, anti-drug ads, workout gyms and a new infomercial every week about the next/biggest/hottest workout product to date. Around the mid 1990s, the federal government started paying close attention to the results of research about the effects of smoking as a carcinogen. It was around this time that cancer was on the mind of a large group of Americans. Being as health conscious as America was, the research that was conducted struck a nerve with the government. This, in combination with exponentially increasing teenage smoking gave cause to action and punishment against the tobacco industry.
Arizona Senator, John McCain, proposed and sponsored a tobacco legislation that was believed, at the time, would attract broad bipartisan support on Capitol Hill, opening a huge policy window for tobacco legislation. The adoration this bill was purported to receive was based upon the legislations simple, popular and frequently stated purpose: the reduction of teen smoking. Yet after a few weeks of crafting, the Senate born tobacco bill had taken on a number of other goals, and in the process become undeniably and helplessly more complex.
The original purpose of the bill would raise federal cigarette taxes by $1.10 a pack. That extra tax money would eventually bring the federal government $516 billion over the next 25 years; however, deciding what the government should do with all of that money slowed the process of debate - and in turn, legislation enactment - to a considerable standstill.
Democrats at the time supported fully the language in McCain's bill that would dedicate the $516 billion to fund medical research, fund public health education on the dangers of smoking, reimburse states for their costs of treating smoking-related illnesses and provide financial relief to tobacco farmers. A number of republicans at the time, however, came forward with other ideas, by way of proposed amendments, on how to spend the money, such as applying the money to a tax cut for the nation - a completely unrelated issue - sparking severe opposition.
Democrats charged that the Republican's proposal would, in effect, completely kill tobacco legislation - a plan they felt was intentional. The Democrats began to get the impression that the Republican's were perpetually attempting to detain tobacco legislation with amendments that would carve out a portion of the taxes. With every argument revisited on the floor, the intentions of the Republicans seemed to become clear as an effort to derail, slow down or even stop the entire fundamental tobacco legislation.
Because at this point, it looked as if tobacco legislation was dead and dying, there was only one method people felt would salvage this legislation, for debate to end. In an effort, by the Democrats, to get cloture on the debate and end the argument process, a vote on the issue was force and the tobacco legislation failed miserably, which - in turn - led to more accusatory rhetoric.
There was little or no quid pro quo bargaining over the amendments to Sen. McCain's tobacco legislation bill, but the supporting research data proved highly influential with the initial drafting of the bill. The researched effects of cigarettes coupled with the rising smoking rates and the general sentiment of the country against smoking and a great deal of persuading influence on the language and purpose of the bill in the adoption stages. Though the original bill needed no majority building tactics, the amendments proposed to the bill split the vote for the bill.
The number of invested parties in the legislation were numerous. Both sides of the issue had strong supporters. Senator McCain was obviously vested in the interests of the bill passing, other key players however included, Sen. Trent Lot, Sen. Tom Daschle, Sen. Phil Gramm, Sen. John Ashcroft and Sen. John Kerry. The presidential administration played a leading roll in trying to force the acceptance of the issue. President Bill Clinton completely supported the action of reducing teen smoking. The American people, as health conscious as they are, were looking to play close attention to the issue along with tobacco and health lobbyists. The tobacco companies and the states also had a vested interested in seeing the outcome of the legislation.
After about a month of argument about the tobacco bill, the issue finally died, yet the government was not through. As a reaction to the bills failure, some say the argument was taken to a different venue, the judicial branch.
On November 23, 1998, 46 states settled their lawsuits against the major tobacco companies to recover tobacco-related healthcare cost, joining four states (Mississippi, Texas, Florida and Minnesota) that had reached earlier, individual settlements. These settlements required the tobacco companies to make annual payments to the states in perpetuity for the next 25 years in the amount of $246 billion. The multi-state settlement, known as the Master Settlement Agreement, also imposed limited restrictions on the marketing of tobacco products.
Opponents of recent class-action lawsuits have expressed concerns that the money was legally "extorted" from the major tobacco companies through the court system by threatening them with a lawsuit and forcing them to settle with idea of bad publicity. They feel that the government funded lawyers used the judicial courts as a method of bypassing the legislative branch, which could not come to a decision on regulatory policy thus, continually, rejected any and all legislative action within the tobacco industry. This move therefore allowed for the government to completely avoid the processing time of legislative issues and go directly to the end result it was looking for: compensated money for all cigarette related health problems, as well as forcing the tobacco industry into regulatory policies it set. Not only did they get their way, they got paid for it as well.
Defenders of tobacco litigation have responded with comments to the tone that our country has a relatively unregulated economy when compared with those of other countries, and therefore have set the courts as our default regulatory organization because of the creation and proliferation of private litigation. They say, within the entirety of our 200 plus year history, it has always been the job of the courts to become the default regulators of industry and to set public policy.
Though the traditional job of the judicial system dictates that its purpose is to interpret the law, with the amount of lucrative options that have become available in history tort law, the appeal of private litigation has been on the rise. Even when the law is a matter of constitutional relevance, there is still room for the court to dictate policy. The turn towards class action suits in the late 1980's truly had a profound effect on the regulatory options of potentially harmful industries to the American people.
The turn towards the court system seems to be the natural resort of a gridlocked legislative process that relies upon a number of external factors and partisan opinions in its judgment. If an industry knowingly and willing accepts the terms of a settlement, who's to say that it was extortion. Tort law has always given people the right to collect damages and I see the recent class-action suits on as a rightful attempt to capitalize on damages received. The American people are allowed to sue for a reason; no one should be knowingly, willingly, intentionally and encouragingly harmed by the product of one industry, especially one that used to engage immoral and false advertising tactics.