How to Challenging the Master Settlement Agreement
To: Potential Co-Petitioners
August 19, 1999
I am challenging the approval in Pennsylvania of the Master
Settlement Agreement with Big Tobacco, and your support
(in whatever form possible) would be helpful. Unlike all other
litigation of which I am aware, my intent is to modify the MSA
so that it does not prevent future public interest lawsuits. This
self-financed effort is being pursued in tandem with a filing in
the Philadelphia Court of Common Pleas intended to penalize
Philip Morris for having financed billboard advertising in
contravention of specific clauses in the MSA.
The implications of this work are (inter)national, inasmuch as
any clause that is determined to be unconstitutional in
Pennsylvania could then be challenged in all other comparable
contracts between the tobacco industry and those who would be
denied legal recourse. The key clauses relate to the "releasing
parties" and "offset" provisions; the former blocks all but
individual litigation, and the latter allows the tobacco industry to
deduct any losses (by settlement and/or by judgment) from their
allocated annual payments under the MSA.
Available upon request are additional documents, chief among
them being my filings. Other documents have been uploaded for
easy-reference (and will be updated "prn"). Simply click on
gt/misc-docs and find the "sklaroff"
documents listed below. Alternatively, you can go directly to
The first document is this overview letter, the second is the set
of contrasting Opinions issued by Commonwealth Court, the third
is the state-by-state approval status, and the fourth is a model-letter
that I would ask you PLEASE to consider remitting promptly.
Following this overview will be a more detailed set of excerpts &
analyses from the record. I will file both a Motion for Reargument/
Reconsideration and a Supreme Court Appeal, inasmuch as the
Majority Opinion is solely predicated on an irrelevant untruth.
Indeed, the Order contains no references and cites no data
(from the record or elsewhere) supporting the following key
conclusion (for which there is not one shred of evidence):
"Dr. Sklaroff's desire to represent the public interest is
insufficient to confer standing, particularly where, as here, other
entities such as the Commonwealth do have a direct, substantial
and immediate interest and are, in fact, vigorously litigating on
behalf of the public." [punctuation added] It therefore (in a
footnote) dismissed the concept of there being a "class action,"
and failed to discuss the myriad additional issues raised
previously (such as Taxpayer status under the Biester Exception
that can been used to gain standing). Amazingly, it failed to
address the issue as to whether I have the same "direct,
substantial and immediate interest" that (allegedly) the
Commonwealth (among others) have been concluded to have
a priori. These data were exhaustively submitted but totally
ignored. [Although references are mostly to PA law, I'm told
correlates exist in other states.]
The irony here, of course, is that the Commonwealth is
"vigorously litigating" in only one tobacco-related venue:
against my ability (representing the public interest) to ensure
it doesn't immunize Big Tobacco (virtually) forever. No other
entity is litigating elsewhere.
The double-irony here, recalling the original Opinion written by
Judge John W. Herron, is that he accused the anti-tobacco
activists of, essentially, attempting to supercede the political
judgment of the Attorney General; we were advised to register
our views at the ballot box. Yet, the Majority Opinion is
essentially a political document, devoid of any legal analysis of
any of the issues raised either in the Trial Court or in Appellate
Briefs. Thus, it is necessary to consider issuing a "political"
response, issued through the myriad customary vehicles (such
as the media) that are recognized by our society.
The triple-irony here, recalling my suit against Philip Morris, is
that the Attorney General has failed to prosecute the
"manufacturer sponsored promotion" that constituted placing
billboards (by Wawa Food Markets, Inc.) that contravened the
tenets of the MSA. Today, the AG sent me a letter requesting
that I defer future appeals; I will respond negatively, and I will
ask him to explain why he didn't seek penalties comparable
to those levied this spring in Rhode Island (after a United
States Tobacco spokesperson was caught in a lie).
Thus, I was "disappointed" even before I read the 24-page
Dissenting Opinion composed by Judge James R. Kelley.
Its exhaustive analysis led to the following last-paragraph:
"In conclusion, it is clear to me that a trial court may not place
its judicial imprimatur on a proposed settlement and consent
decrees, and order the entry of judgment thereon, where the
record utterly fails to demonstrate that it is a just and fair
resolution to the matter. This is particularly so where the
proposed settlement and consent decrees are of such a broad
expanse, so absolutely preclude future claims and liability, and
may never be altered or amended in any manner by the court.
To my mind, the entry of judgment based on such a speculative
and conjectural predicate affecting such significant rights must
surely constitute an error of law. Accordingly, I would deny the
application to discontinue the instant appeals, adjudicate these
matters on the merits, and reverse the orders of the trial court in
Today, also, a political maelstrom (that will be fleshed-out in the
Reconsideration Motion) was released when the reason for
Allegheny County's withdrawal was said to be political.
Specifically, the Governor threatened to withdraw fiscal support
for Pittsburgh's airport.
"The discontinuation by Allegheny County was accepted without
comment by the Majority, despite lack of compliance with Pa.
Rules of Appellate Procedure #1973(a) & 123(a):
1973: An appellant may discontinue an appeal after argument by
leave of court upon application.
123: An application must, inter alia, state with particularity the
grounds on which it is based, and shall set forth the order or
relief requested. . . .Any party may file an answer to an
application within 14 days after service of the application.
[I would have invoked criteria listed in Pa.R.Civil.P #229
(unreasonable inconvenience, vexation, harassment, expense
The rest of the discussion focuses upon this bold statement (with
which I heartily concur): "I strongly believe that it was incumbent
upon the trial court in this case to make an independent
examination of the proposed settlement and consent decrees,
and to refuse to accept either unless it determined, among other
considerations outlined below, that the 'judgment to be entered
is a just one. . . .' [reference deleted] Because I believe that the
trial court misapprehended the nature of its review of the
proposed settlement and consent decrees in this case, I am
convinced that it erred in accepting the settlement and decrees
and its orders should be reversed." It doesn't mention my name
throughout its analysis, but it cites my assertion that there is
strong precedent for the need "to protect the rights of minors in
the settlement of their claims. . . .to ensure that the interests of
the minor are protected above all other conflicting interests, and
to protect the minor's interests in all phases of litigation." This is
the essence of the "class action" concern that I have raised.
THESE ISSUES ARE NOT UNIQUE TO PENNSYLVANIA.
THUS, OTHERS WHO VIEW THEMSELVES AS ANTI-TOBACCO
ACTIVISTS MUST NOW CONSIDER HOW TO APPLY THEM IN
OTHER JURISDICTIONS (STATE & FEDERAL). Inasmuch as
they have now been "validated" (with detailed, "universalist" legal
references) they must be applied AS SOON AS POSSIBLE, by
AS MANY PEOPLE AS POSSIBLE.
These data have been provided in a user-friendly format,
intended to convince the reader that he/she could apply the
extensive references in the brief to his/her state (and federally).
Judge Kelley elucidated a step-by-step study guide, and it
behooves everyone to invoke it.
A final consideration that the reader may wish to weigh is that
few states are committing MSA-generated monies to public
health, let alone tobacco control. Serious proposals include
scholarships (Michigan), school construction (New York), road
building (Virginia) and refacing the Capitol Building
(Pennsylvania). For this reason, some commentators have
suggested that I may gain some influence over ultimate
disbursement of these funds merely by having an ongoing court
presence. This was not my motive when we filed, but it could
prove helpful when attempting to motivate the government to
spend these monies on prevention/cessation activities as a
priority over other tangential pet projects.
One final point: due to my ongoing litigation, the media have
inquired as to my objectives; This has afforded me the
opportunity to elucidate the many deficiencies in the MSA,
concerns that multiple authors issued last year on the Internet.
Thus, others who apply these legal theories in their own states
could obtain comparable levels of "secondary gain."