Summary
holding that "the funds' lawsuits constitute an illegitimate endrun around principles of subrogation."
Summary of this case from Sao Paulo v. American Tobacco Co.Opinion
No. 98-41232.
January 19, 2000.
George Robert Blakey (argued), Notre Dame Law School, Notre dame, IN, for Texas Carpenters Health Benefit Fund.
R. Windle Turley, Patrick Carter Paterson, Law Office of Windle Turley, Dallas, TX, for Plaintiffs-Appellants.
Herbert Maurice Wachtell (argued), Wachtell, Lipton, Rosen Katz, New York City, NY, Scott Edward Delacroix, Adams Reese, New Orleans, LA, Lawrence Louis Germer, Germer Gertz, Beaumont, TX, Maya Miriam Eckstein, Jack Edward McClard, Hunton Williams, J. Burke McCormick, Hunton McCormick, Richmond, VA, for Philip Morris, Inc.
Sydney Bosworth McDole, Jill Ellen Tananbaum, Jones, Day, Reavis Pogue, Dallas, TX, Walter J. Crawford, Jr., Crawford Olsen LLP, Beaumont, TX, David S. Eggert, Arnold Porter, Robert H. Klonoff, Robert F. McDermott, Jr., Jones, Day, Reavis Pogue, Washington, DC, Thomas Glascock Slater, Jr., Hunton Williams, Richmond, VA, for R.J. Reynolds Tobacco Co.
Kenneth Nathan Bass, Edward W. Warren, Kirkland Ellis, Washington, DC, for Brown Williamson Tobacco Corp.
Robert A. Gwinn, Gwinn Roby, Dallas, TX, for Lorillard Tobacco Co.
Ellen Beth Malow, Kasowitz, Benson, Torres Friedman, Houston, TX, for Liggett Group Inc.
Jack Potter Carroll, John W. Newton, III, Orgain, Bell Tucker, Beaumont, TX, for United States Tobacco Co.
William Key Wilde, Mark E. Lowes, Bracewell Patterson, Houston, TX, for Council for Tobacco Research USA Inc.
Lipscomb David Norvell, Jr., Jacqueline Marie Stroh, Benckenstein, Norvell Nathan, Beaumont, TX, for Smokeless Tobacco Council, Inc.
Lea F. Courington, Scott William MacLaren, Gwinn Roby, Dallas, TX, for The Tobacco Institute, Inc.
Edward John O'Neill, Jr., Byron Charles Keeling, Clements, O'Neill, Pierce Nickens, Houston, TX, for Hill Knowlton, Inc.
Carl R. Schenker, Jr., John H. Beisner, O'Melveny Myers, Washington, DC, Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Amicus Curiae.
Jan S. Amundson, National Association of Manufacturers, Washington, DC, for National Association of Manufacturers.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS.
This is an appeal from a case filed by union trust funds, which provide comprehensive health care benefits to employees, retirees and their dependents through welfare benefit plans, against tobacco companies and their lobbying and public relations agents. The case sought recovery against the defendants for costs incurred treating tobacco-related afflictions based upon federal antitrust and RICO causes of action and various pendent state law claims. A bevy of similar complaints have been filed around the nation, and so far, the federal circuit courts have uniformly upheld dismissal of the funds' cases. Agreeing with the essential holdings of the circuit court opinions, we have no need to write further and affirm the district court's dismissal of this case for failure to state a claim. Fed.R.Civ.P. 12(b)(6).
Four circuit courts have rejected the funds' federal claims, concluding primarily that the loss suffered by insurers is too remote from the manufacture and sale of cigarettes to justify direct recovery by the funds for any alleged antitrust or RICO violations. See International Brotherhood of Teamsters, Local 734 Health Welfare Trust Fund v. Philip Morris Inc., ___ F.3d ___, 1999 WL 1034711 (7th Cir. 1999); Laborers Local 17 Health Benefit Fund v. Philip Morris Inc., 191 F.3d 229, 224 (2nd Cir. 1999); Oregon Laborers-Employers Health Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957, 967 (9th Cir. 1999); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris Inc., 171 F.3d 912, 918 (3rd Cir. 1999). Comprehensive discussions of the issues in those cases persuade us that their conclusions are correct and that the funds' lawsuits constitute an illegitimate end-run around principles of subrogation.
As for the state common law and statutory claims asserted by the funds, their initial appellate brief does not directly address the court's dismissal of any of those claims. One paragraph in appellants' reply brief directs us to their briefing in the district court. Because appellants did not choose to brief or even refer to the dismissal of these claims timely or adequately on appeal, their challenge is waived. See Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 270 (5th Cir. 1998).
The judgment of the district court dismissing the complaint is AFFIRMED.