Smoke in Their Eyes: Lessons in Movement Leadership from the Tobacco Wars

19. “I Say It’s Immunity, and I Say the Hell with It!”

131 19 “I Say It’s Immunity, and I Say the Hell with It!” The tobacco control advocates were unified in opposing immunity for the tobacco companies, and sharply divided in defining precisely what “immunity” meant. Indeed, embedded in the core principles that Matt had drafted, and that even those most open to settlement had embraced, was this antiimmunity plank: “The rights of victims of the tobacco industry to seek compensation for the injuries they have suffered should not be abridged and the tobacco industry should not be immunized from accountability for its wrongdoing.” Matt had fiercely opposed the attorneys general’s lawyer Dick Scruggs’s earlier settlement proposal for its blanket grant of immunity to the tobacco industry. On December 11, 1996, Matt had written Scruggs a strong, detailed memo challenging the immunity provisions of the agreement that Scruggs was then prepared to put forward. Matt complained, “As drafted, the proposal gives the industry a license to misbehave that cannot be justified.” Yet Stan Glantz and other die-hard opponents of any settlement would sharply divide the tobacco control community into anti-immunity faithful and pro-immunity apostates. Why this apparent contradiction? Because “immunity” came to mean different things to different advocates at different times; and, because the war cry “No immunity!” was to become so disconnected from its basic meaning—that the tobacco companies should not escape accountability for past and future crimes and misdeeds—that it became a political bludgeon, not a tool of analysis. During the first days of the settlement negotiations, the tobacco companies demanded total insulation from criminal, as well as civil, actions for any past or future corporate or individual wrongdoing. That 132 Smoke in Their Eyes insulation would unambiguously have constituted immunity. Without internal dissent, the attorneys general and their colleagues insisted that immunity from criminal prosecution was “off the table,” nonnegotiable. After some grumbling, the industry negotiators gave up this demand, and it was never again considered. But Stan Glantz was not given to fine distinctions, and advocates in the field who relied on Glantz’s broadsides from the settlement wars would have been forgiven for concluding that the attorneys general were supinely prepared to scuttle all the pending criminal investigations as well as all civil litigation. In this example, Glantz evokes the fresh wounds of the Oklahoma City terrorist bombing: “A jury has voted the death sentence for Timothy McVeigh because he killed 168 Americans . The tobacco industry has killed 10 million Americans since 1964. No attorney general or politician even considered letting McVeigh cop a plea; the same should be true for the tobacco industry.” “Cop a plea” is the language of criminal prosecution, not civil-damages actions. Most tobacco control advocates, including Matt, also considered any settlement that would relieve the tobacco companies from class actions for future wrongful acts, another demand of the tobacco negotiators , to be an unacceptable grant of immunity. But an agreement by the tobacco companies to set aside billions of dollars in a compensation fund for tobacco’s victims in exchange for the uncertainties of litigation was seen by the attorneys general and trial lawyers as reasonable compensation for liability claims, not immunity from those claims—with respectable congressional precedent, such as the legislation that progressives fought for to provide a compensation fund for coal miners who succumbed to black-lung disease. Matt did not necessarily disagree, but he fought fiercely against any immunity from potential punitive damage awards against the companies for their deliberately wrongful acts. But for Ralph Nader and others, any settlement that intervened in the trial of any or all civil claims for damages against a tobacco company defendant constituted immunity. Nader wrote to the Center on June 19: The effort to draw a bright line between “immunity” and the various schemes of limited liability is misleading and dishonest. Indeed, the prospect of “immunity” may well have been floated by the tobacco companies just so they could switch to a position of disguised immunity and appear to have retreated. The Settlement 133 Proponents of the settlement must at the very least honestly acknowledge that the agreement would in fact restrict victims’ rights and effectively shield the industry. The critics of immunity through settlement—who assailed the Center’s willingness to embrace any agreement to limit liability—relied on at least four distinct rationales. One group, led at various times—though not consistently—by Congressman Henry Waxman, David...