By Tony Mauro Legal Times October 7, 2008
Washington - On the opening day of its fall term, the Supreme Court jumped right into a controversial case in which tobacco companies are seeking to block litigation in state courts over health claims made about "light" cigarettes.
By the end of Monday's hourlong arguments in Altria Group v. Good, most justices appeared to agree with Altria - the parent company of Philip Morris - that the federal cigarette labeling law pre-empts state tort suits like the one before the Court. In August 2007, the First Circuit U.S. Court of Appeals had ruled that the suit, in which a group of Maine smokers allege that claims of reduced tar and nicotine were false, was not pre-empted.
The justices, who had not been together in public since June, seemed in good health and spirits, jousting with lawyers and each other during oral arguments.
Representing Altria was former Solicitor General Theodore Olson, who was arguing his 50th case before the court. Olson appeared to convince the court that the federal labeling law expressly precludes state suits over "smoking and health" issues. If states are allowed to impose different restrictions on cigarette advertising through lawsuits or other means, Olson said, "national advertising becomes impossible."
David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, who represented the smokers, struggled to persuade the court that the state suits are about consumer fraud and deception, and thus are not pre-empted.
In an unusually sharp exchange, Justice Samuel Alito criticized the lawyer representing the federal government, accusing the Federal Trade Commission of allowing tobacco companies to make misleading claims about the tar and nicotine content of light cigarettes for decades. "If these figures are . . . misleading, you should have prohibited them a long time ago," Alito told Assistant to the Solicitor General Douglas Hallward-Dremeier. "And you've created this problem by, I think, passively approving the placement of these figures . . . in the advertisements. And if they are misleading, then you have misled everybody who has bought those cigarettes for a very long time."
Also on Monday, the court heard arguments in Locke v. Karass, a First Amendment dispute over unions' use of fees paid by nonmembers to fund lawsuits with which the nonmembers disagree. And in a rare afternoon session, the justices heard debate in Vaden v. Discover Bank, a question of federal court jurisdiction over a bank's efforts to compel arbitration in a credit card dispute.
The justices also issued an 82-page orders list, disposing of more than 1,500 petitions filed over the summer. The court did not grant review in any new cases.
Justice Stephen Breyer voted to deny review in a number of cases involving businesses in which he had stock - or so it appeared at first from his 2007 financial disclosure form, the latest available.
But when asked about the cases, according to a Bloomberg News report, court spokeswoman Kathy Arberg said the justice had sold a number of stocks over the summer and will continue to do so to minimize such conflicts of interest.
Last term Breyer, Alito and Chief Justice John Roberts recused in several key business cases because of stock ownership. In selling his shares, Breyer took advantage, as has Roberts, of a recent law that allows federal judges to sell stock to avoid conflicts of interest without incurring tax liability for capital gains. Executive branch officials have been able to take advantage of the exemption for years.
Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.
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