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78 11 One Stays, One Stays Out Matt had agreed only to come to the next day’s meeting, and to listen. He had not yet committed himself to an active role in formal negotiations . But that second meeting brought concrete concessions, pathbreaking concessions. Arthur Golden opened the meeting by declaring , flatly, that the Marlboro Man and Joe Camel would go—if not the most important public health objective, surely the most powerfully symbolic objective for tobacco control advocates. Joe Camel may have seduced millions of kids, but the Marlboro Man was their true pied piper—60 percent of underage smokers smoked Marlboros (while only 25 percent of all smokers did), though they cost almost twice the price of the generic brands that better fit most teenagers’ pocketbooks. The companies would agree to end the use of all human and cartoon figures in their advertising. Matt and the attorneys general pressed forward. Matt referred to President Clinton’s stated goal of cutting teenage smoking at least in half. And he pressed on the issue of look-back penalties, which Golden had skirted the day before: “We want to put in the accord that if this goal isn’t met by a predetermined number of years, each cigarette maker would have to pay a steep financial penalty—a penalty in the billions of dollars.” “We can live with that,” responded Golden, “but we are not going to give you a blank check.” Matt had begun to believe that this negotiation might indeed be different from all the preceding ones. And he decided to stay at the table. By the conclusion of the discussions that Friday night, I had decided that it would have been unimaginably irresponsible to have had this opportunity to explore what might be possible, and to walk away from it. I truly saw the talks as a way to accomplish something that I didn’t believe we could otherwise accomplish. Remember that as of April 1, 1997, it had been two and a half years since the last congressional hearing on tobacco. Leading toward Settlement 79 It was clear from the very beginning that it would take hard negotiations , but what they appeared willing to give up on public health was light years beyond what anybody ever thought about getting from these guys. So I have to admit I walked out of the first two days of those first discussions believing they were the opportunity of a lifetime for the tobacco control movement. While Matt was wary of Scruggs’s and Moore’s overeagerness to settle before their Mississippi trial date on July 7, he also knew that their impulse was fed by a well-grounded fear that the attorney general cases were fragile, their favorable outcome far from certain. As Matt saw it: I spent a lot of time looking at the cases that we were all depending upon and the people on whom we were depending to prosecute them. I’ve done very large class action litigation; that’s what I did for the ACLU. I had much greater qualms than those who had just read the attorneys general’s press clippings. The cases were wonderful, but only if we were able to leverage them to achieve public health goals, and that could best be done through a settlement , not trials, because trials are mostly about money—not health policy. The more time I spent analytically thinking it through, the more comfortable I became with the nonemotional answer that these negotiations— even with the devil—could hold the key to our public health goals. I thought that this was the right time to strike. I feared the public’s interest in curbing the tobacco companies would wane over time. I saw the weaknesses in the class action cases and thought they were less likely to win than not. The time to maximize them was when the industry was still afraid of them. I saw the industry’s fear of Kessler and the FDA as another source of leverage. I concluded we were at a maximum time to try and nail something down. Matt knew that there were tobacco control advocates who did see the trials of these cases as public health initiatives—and the ultimate bankruptcy of the companies as the new Holy Grail of tobacco control . The very fact that Bible and Goldstone were at this table together made it clear to Matt that they and, more importantly, their investors, greatly feared bankruptcy—feared that...

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