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28 3 Sinking the Unthinkable In the months that followed the April 1996 publication of Dick Kluger’s immodest proposal, and the hint delivered shortly thereafter to the Financial Times of London by R. J. Reynolds’s new CEO, Steven Goldstone , that he might well be open to a negotiated resolution of all tobacco issues (“Why wouldn’t the industry look at it?”), Matt Myers was a worried man. He had been keeping close track of the attorneys general cases. He was also privy to the realistic analysis of former Maine attorney general , Jim Tierney, who had become a key counselor to the group of attorneys general who had brought or were contemplating bringing lawsuits against the tobacco companies. In a letter to me, Tierney reflects on the situation faced by the attorneys general at that time: These cases were a very high risk proposition for state attorneys general. For that reason, they sought allies. A few trial lawyers were enthusiastic, but most were not and attorney general after attorney general reported that they could not find lawyers in their state willing to take on this expensive fight. Some in the health community, such as Northeastern Univ. Law Prof. Dick Daynard, liked the idea of litigation, but they were few in number, disorganized and did not understand the immensity of the litigation. Most stayed away from lawsuits preferring local initiatives and referendums. In 1994, Mississippi Atty. Gen. Mike Moore, Minnesota Atty. Gen. Hubert H. Humphrey, III, and Florida Atty. Gen. Bob Butterworth took the plunge and threw up the “Hail Mary” anti-tobacco lawsuits. Each man took a huge risk and staked their careers on these cases. By late summer of 1995, three of the four filing states were in deep trouble. In Florida, the authorizing legislation had been repealed and Gov. Lawton Chiles’ veto was expected to be overridden. In Mississippi and West Virginia, the Governors had joined forces with their legislatures and the tobacco industry. In cases prepared by the tobacco industry, they were suing to kill the litigation saying the attorneys general had acted without Leading toward Settlement 29 legal authority. Only Minnesota seemed to have a clear shot of at least eventually getting to a courtroom. Matt held both Mike Moore and Dick Scruggs, the trial lawyer who provided the legal resources to sustain the Mississippi case, in high regard: I thought incredibly highly of them and what they had done. They brought the cases that gave the FDA critical documents; they got [Clinton’s pollster ] Dick Morris to run a poll that helped to move Clinton forward on FDA; and they had vigorously sought to learn what public health changes were needed to make a real difference—and to fight for them. I did not underestimate the good that they had done. Their lawsuits revolutionized the debate and their skill and resources transformed the playing field. What worried Matt was not that Moore and Scruggs cared less than he about the public health—or more about settling for a huge payoff. “I did not doubt their toughness, commitment, or ability,” recalls Matt. “Rather, we disagreed about how far the industry and the White House could be pushed.” Matt knew that Scruggs, as an experienced litigator, understood only too well the weaknesses of the cases, the significance of their setback, and the risks of losing all. So he feared that Moore and Scruggs would be receptive to a compromise that fell short of what was necessary to achieve significant public health goals. Scruggs himself acknowledged that his generic strategy for grand-scale litigation, such as the tobacco suits, was “to get the stakes so high that neither side can afford to lose. When you raise the stakes through consolidations or bringing large numbers of claims together, you have given them an incentive to settle. . . . And usually a good settlement is far superior to trench warfare , trial-by-trial litigation.” As for the state attorneys general, Matt worried that, as politicians— however exemplary—they would be hesitant to gamble all at trial if they thought there was a viable alternative. He also worried that though Moore and Scruggs both genuinely cared about making public health gains, their lack of experience with the industry’s genius for concocting high-sounding health concessions out of regulatory cotton candy could result in yet one more lost opportunity for serious regulation. And he worried that this would all happen without any opportunity for him or others who knew this industry’s...

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