The Synar Deception (none)

The Professor
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According to the Federal Centers for Disease Control and Prevention, each year cigarette smoking kills more than , Americans, exceeding the combined deaths caused by automobile accidents, AIDS, alcohol use, use of illegal drugs, homicide, suicide, and fires. This figure of , deaths per year exceeds the total number of American lives lost in all the wars this country has fought in this century. They all acknowledge that tobacco use is a form of drug dependence that causes severe adverse health consequences and increased medical costs.

Plaintiffs allege that until January of , the tobacco industry denied the addictive and lethal nature of their products. Plaintiffs cite to the sworn testimony given in by the chief executive officers of the Defendant companies, before the House of Representatives Subcommittee on Health and Environment which is part of the Committee on Energy and Commerce , stating that cigarette smoking is not addictive and that the companies did not manipulate or increase the level of nicotine in cigarettes.

This conspiracy adopted two strategies: to falsely represent to the public that the tobacco companies were creating a new and unbiased organization to provide trustworthy research and information about smoking and health, and to then rely on the public's acceptance of these representations to suppress, distort, and confuse the facts about the health dangers of tobacco products and nicotine addiction. Plaintiffs allege that Defendants' plan was set in motion in , as several scientific studies were issued that sounded warnings about the health hazards of cigarettes.

On January 4, , as a result of a December hotel meeting of the chief executive officers of the leading cigarette manufacturers, all the companies, except Liggett, issued full page newspaper advertisements throughout the country, asserting that there was no proof that cigarette smoking was one of the causes of lung cancer, and announcing the formation of TIRC to provide independent research into all aspects of tobacco use and health.

Plaintiffs allege that despite these promises to report objective facts on smoking and health, the tobacco companies were already aware of the harmful and often lethal effects of smoking. Plaintiffs allege that in , worried about the growing public concern over the relationship between smoking and health problems, the tobacco companies agreed, in a so-called "Gentlemen's Agreement", that no individual company would perform research on smoking, health, and the development of "safe" cigarettes, and that any such information that existed would be suppressed and concealed.

They cite to internal industry memoranda demonstrating that the research organization was used to promote favorable research, to suppress negative research whenever possible, to attack negative research when it could not be suppressed, and to aid public relations and lobbying efforts on behalf of the industry. Plaintiffs allege that, as part of Defendants' ongoing conspiracy to deceive and mislead the American public, several tobacco companies, including Philip Morris, Reynolds, and Liggett, refused to produce or market various types of "safer cigarettes" that their researchers had developed after 20 years of effort.

Plaintiffs allege that the tobacco companies have known since at least the early s of the addictive properties of nicotine, and cite numerous internal research memoranda by industry scientists to that effect, as well as a memorandum stating that "nicotine is addictive. We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms. Plaintiffs allege that despite this knowledge, the industry suppressed the publication of negative information about their products by ordering their scientists to keep their work secret, by closing down laboratories and destroying the animals which were used to gather the research, by forbidding scientists from publishing their data and threatening them with retaliation if they did, by involving lawyers in the research so they could later invoke the attorney-client privilege to hide any harmful research results, and by transferring potentially sensitive research to Switzerland and England.


Surgeon General, who was preparing his first official report on smoking and health, what the company knew about the addictiveness of nicotine and the adverse effects of smoking on health. The company rejected the advice. Plaintiffs allege that the tobacco companies have developed and used highly sophisticated technologies designed to deliver nicotine in quantities that are more than sufficient to create and sustain addiction in the vast majority of individuals who smoke regularly. This genetically-engineered tobacco plant had a nicotine content more than twice the average found naturally in flue-cured tobacco.

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Plaintiffs allege that just as the tobacco companies have the capability to manipulate the amount of nicotine in cigarettes, the rate at which nicotine is delivered, and the addition of nicotine to any part of a cigarette, they also have the capability, with existing technology, to remove all or virtually all of the nicotine from their products. Plaintiffs allege that the tobacco companies have marketed low tar and low nicotine cigarettes which, in reality, have higher concentrations of nicotine, by weight, than high yield cigarettes.

Finally, Plaintiffs allege that the tobacco companies, as part of their conspiracy, fraud, and market manipulation, have used deceptive advertising to aggressively market addictive tobacco products to particular populations, such as minors. Using popular cartoons such as Joe Camel and popular figures such as the "Winston Man", [4] the tobacco industry has aimed its advertising at young people.

These are the allegations which, for purposes of the pending motions to dismiss, must be assumed to be true. Plaintiffs seek to recoup healthcare funds expended on tobacco-related illnesses under several theories. Plaintiffs argue that Defendants engaged in a pattern and conspiracy of racketeering activity, and that they used proceeds from such activities to affect interstate and foreign commerce e.

Plaintiffs argue that Defendants conspired to unreasonably restrain trade in the tobacco products and healthcare markets by suppressing research about tobacco-related illnesses and hindering the development of nicotine-replacement products. Plaintiffs claim that Defendants' avoidance of the healthcare costs incurred by use of their products constitutes unreasonable restraint of trade in the healthcare market. Plaintiffs' third theory of recovery Count VI is based on common law fraud. Plaintiffs argue that despite Defendants' express public promise to assume the responsibility to discover and disclose information about tobacco use, they intentionally and recklessly misrepresented and concealed such information.

Plaintiffs argue that Defendants voluntarily assumed a duty to protect the public health by their public promise to pursue research regarding the effects of smoking. Plaintiffs claim that Defendants negligently and intentionally breached this special duty by misrepresenting and concealing such information.

Plaintiffs' fifth theory of recovery Count IX is indemnity.

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Plaintiffs allege that Defendants must indemnify them for tobacco-related healthcare costs because Defendants had a duty to pay such costs, and it would be unjust for Defendants not to indemnify Plaintiffs for discharging that duty. Plaintiffs' sixth and final theory of recovery Count X is unjust enrichment. Plaintiffs allege that Defendants have been unjustly enriched by the transference of tobacco-related healthcare costs to Plaintiffs. Another way to examine this fundamental question is to ask whether our legal system can accomplish a task of such magnitude.

Is it sufficiently flexible and responsive to the practical and doctrinal challenges posed by this case to devise a framework that allows Plaintiffs to have their "day in court", to tell their story to a jury, and if Plaintiffs can prove the facts they have alleged to obtain compensation for the injuries they have suffered? This task is particularly daunting in light of the allegations that, by virtue of their participation in a sophisticated and well-organized conspiracy, spanning a period of some forty-five years, Defendants played a major role in precipitating this nation's healthcare finance crisis, [7] thereby undermining the financial health and stability of Plaintiffs' industry.

This Court is of course well aware that four Circuit Courts of Appeals [8] have examined this issue in cases very similar to the ones before this Court although some of the theories advanced by the plaintiffs in those cases vary somewhat from those advanced in these cases. Each of those courts concluded that the plaintiffs had no cause of action against the tobacco companies. Although rationales and emphases varied somewhat from case to case, all the Circuits ruled that, as a matter of law, plaintiffs' claims were too remote for the legal system to recognize, that the cases were too complex for ascertainment and apportionment of damages, and that there was too great a risk of multiple recoveries.

While this Court has studied the four Circuit opinions with great care and respect, they are of course not binding. Since our Court of Appeals has not yet had an opportunity to grapple with these questions, this Court writes on a clean slate until our Circuit speaks. Over the years our legal system, which has grown less rigid and formalistic, has risen to the many challenges that have emerged in our increasingly complex and technological world.

More than a century ago, Justice Oliver Wendell Holmes eloquently described the growth and responsiveness of this country's legal system:. The instant cases present just such a challenge to the ability of the courts to adjudicate an extremely complex case of enormous public interest and concern, in which great wrongs are alleged and damages if warranted will be difficult to ascertain. However, we are not without guidance since the Supreme Court has provided the analytical framework for examining the viability of Plaintiffs' claims in two seminal cases: Associated Gen.

Contractors of Cal. Securities Investor Protection Corp. After determining that the standing requirements for RICO and antitrust claims are similar, the Supreme Court concluded that the standing analysis drawn from common-law principles of proximate cause and remoteness of injury is the most appropriate in evaluating such claims. AGC, U. Consequently, it is clear that the analysis of the remoteness issue, which is central to determining the viability of the majority of Plaintiffs' claims, [16] should be conducted under the rubric of standing doctrine.

Keeton, D. Dobbs, R. In other words, when a claim is too remote, there can be no proximate cause and, ultimately, no standing. Proximate cause itself is composed of the two elements by which we evaluate remoteness: public policy "what justice demands" , and [17] identification of the plaintiff best suited to most efficiently present the damage claims "administrative convenience".

Courts have struggled with the concept of proximate cause for much of this century. The Supreme Court has recognized that while the courts have used words such as "remote," "tenuous," "fortuitous," "incidental," or "consequential" to describe those injuries that fall outside the rubric of proximate cause and therefore have no remedy at law, the use of this broad spectrum of terms "only emphasizes that the principle of proximate cause is hardly a rigorous analytic tool.

Perhaps the most candid definition of this elusive term was given more than 70 years ago by Justice Andrews in his oft-quoted dissent in Palsgraf v. Long Island R. The Supreme Court echoed this sentiment when it recognized that the term "proximate cause" is a generic label for "the judicial tools used to limit a person's responsibility for the consequences of that person's own acts.

In light of the confusion in the existing law, an understanding of proximate cause requires a brief look at its historical development. Judges and scholars studying the concept have recognized that while an event can be the cause-in-fact of an injury i. Two recurrent theories have emerged in the debates regarding how liability should be limited once cause-in-fact has been established. The first theory is that of "foreseeable risks" sometimes called foreseeable consequences , which holds an actor liable for all the risks or consequences that were foreseeable effects of his conduct.

The second theory is that of "direct consequences," which holds an actor liable only for those risks that are directly traceable to his conduct. Although the Restatement of Torts has adopted one version of the foreseeable consequences theory, it also incorporates, to some extent, the direct consequences theory.

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Under the Restatement, the two elements necessary to prove legal cause are 1 that the tortious conduct was a substantial factor in bringing about the harm, and 2 that there are no applicable rules of law limiting liability. The first of these elements is defined in terms of the directness of the injury to the conduct: the components of the "substantial factor" element include the number of other factors and the extent to which they contributed to the harm; whether the injury and conduct are connected by an uninterrupted and active series of forces; and the lapse of time between the injury and the conduct.

As to the second element, the Restatement does not include all the possible rules of law that may limit liability, but does provide one, which is a variation of the foreseeable risks theory. That rule of law states that there is no liability if "it appears to the court highly extraordinary that [the actor's conduct] should have brought about the harm. The Restatement's explanation of the requirements for proving proximate cause is particularly significant because this jurisdiction [25] has explicitly adopted them. District of Columbia v. The Restatement makes little substantive differentiation between the application of proximate cause to negligent and intentional torts.

None of the Circuit Courts that have ruled in the union trust fund cases have differentiated between negligent and intentional torts in their analysis of proximate cause. See Steamfitters Local Union, F. Because the intentionality of the alleged actions informs the public policy element of proximate cause, this Court will also not differentiate between negligent and intentional torts in its proximate cause analysis.

And thus the analysis comes full circle from Justice Holmes to Palsgraf to the Restatement to the Supreme Court's opinion in Holmes back to the conclusion that proximate cause mandates consideration of "what justice demands. We must now undertake such an examination of "what justice demands" in this case.

Taking all of Plaintiffs' allegations as true regarding Defendants' long-standing knowledge about the addictive nature of nicotine and the harmful effects of smoking, it is clear that they show a year conspiracy to addict smokers especially teenagers and thereby cause them grave medical harm, to manipulate nicotine levels, to prevent and suppress research into the dangers of smoking, and to mislead and deceive the American public about the dangers of smoking.

The foreseeable consequences of such conduct are obvious. Millions of people will develop the vast array of pulmonary, cardiovascular, and malignant conditions that Plaintiffs have alleged in their complaint. Those conditions will make extraordinary demands on the healthcare community. The economic costs of the services provided by the healthcare community to Fund participants will be reimbursed by Plaintiff Funds. The financial stability of the Funds will be endangered and undermined by the outlay of billions of dollars to reimburse healthcare providers for services to Fund participants.

Because of these extraordinary outlays, the financial resources of the Funds will be diverted to making those reimbursements, rather than mounting anti-smoking campaigns, designing and operating nicotine addiction treatment programs, and developing nicotine-free alternatives to cigarettes. This chain of events demonstrates that it is not "highly extraordinary" that Defendants' conduct caused Plaintiffs' harm.

The foreseeability analysis can also be expressed in much simpler and starker terms. Tobacco products contain nicotine, which is addictive.

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These addictive products will cause devastating health problems to those who use them. Patients will receive billions of dollars worth of services from healthcare providers. Someone must pay for those services. These Plaintiffs, health and welfare funds, are legally obligated to pay for the medical services provided to their participants. Paying for those medical services will jeopardize the financial stability of the Funds, leaving them unable to use their resources for prevention and treatment programs and for developing alternatives to smoking. To close the courthouse door to them, in light of the magnitude of the harm alleged and the moral turpitude [27] of the conduct alleged, would be a far cry from the "rough sense of justice" that Justice Andrews recognized as part of the proximate cause equation so long ago in Palsgraf.

If Plaintiffs can prove all they allege in their complaint, a jury could reasonably find, by a preponderance of the evidence, that Defendants' behavior played a "substantial part" in causing Plaintiffs' injuries, and that those injuries were "either a direct result or a reasonably probable consequence of [Defendants'] conduct. In short, as to the public policy prong of the proximate cause analysis, this Court concludes that there are no liability-limiting considerations which compel a ruling that, as a matter of law, Plaintiffs' injuries were not proximately caused by Defendants' conduct.

Indeed, public policy considerations militate to the contrary. It would be nothing short of unconscionable to conclude that foreseeable wrongs of such magnitude and moral culpability, if proven, must go unremedied because our legal system deemed them unworthy of recognition. There is thus no public policy consideration that requires finding, as a matter of law, that Plaintiffs' injuries were not proximately caused by Defendants' conduct. As to the second element of proximate cause, administrative convenience, the Supreme Court in Holmes developed a framework for analyzing the proximity of the relationship between the injury and the conduct.

This framework requires balancing the following three factors to determine whether a plaintiff may proceed with her claim: 1 is there a more directly-injured victim who can be counted on to vindicate the law as a private attorney general; 2 how difficult is it to ascertain the amount of plaintiff's damages, given that the less direct the injury, the more difficult it is to ascertain those damages; and 3 is adoption of complicated rules for apportioning damages necessary to obviate the risk of multiple recoveries?

Holmes, U. Defendants argue that Plaintiffs are not the best parties to bring these claims because they were not directly injured by Defendants' conduct, and that there are many other directly-injured individuals who can be counted on to vindicate the law. Defendants further argue that Plaintiffs' only remedy for their injuries is subrogation, that the subrogation remedy is adequate, and therefore Plaintiffs are precluded from seeking recovery on direct claims.

Defendants' arguments are unpersuasive for four reasons. First, Plaintiffs are the only parties who can bring suit on behalf of the trust assets. No other person or entity stands in the legal position to recover for depletion of trust assets. There is simply no dispute that Fund participants would not be entitled to sue to recover trust assets.

Second, the Fund participants are not in any position to vindicate the RICO and antitrust claims brought by the Funds, because, as discussed below, a plaintiff must prove an injury to business or property, and cannot recover for personal injuries. Third, and most importantly, the Supreme Court has never ruled that a plaintiff's injuries are too remote without first identifying a plaintiff who was more directly injured and better able to vindicate the law as a private attorney general.

State of Ill. In contrast, Plaintiffs, as fiduciaries of the trusts, are able to bring suit to recover damages to the Funds' business and property, i. Consequently, Plaintiffs are not only the most suitable, but the only suitable parties to bring the RICO and antitrust claims, to serve as private attorneys general, and to vindicate the law on behalf of the Funds. Fourth, Defendants' contention that Plaintiffs' sole remedy is subrogation must also be rejected.

The doctrine of subrogation allows an insurance company to pursue, on behalf of its insured, any claims the insured may have against the party that injured him and caused the insurance company to incur costs. Plaintiffs, however, claim direct injuries to the trust assets, and do not seek to recover for injuries to their participants. Plaintiffs could not recover for these injuries under subrogation, because they would remain uncompensated for any injuries other than those personally suffered by their participants. Defendants argue that it would be difficult if not impossible to ascertain Plaintiffs' damages based on their theory that the Funds themselves were harmed directly, completely apart from the harm done to their participants.

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Defendants contend that Plaintiffs' injuries are necessarily derivative of the injuries suffered by their participants, thus preventing Plaintiffs from neatly segregating the injury to the Funds from the injury to the participants. Defendants, however, overlook several critical considerations.

First, as noted earlier, in a motion to dismiss, the Court must accept as true the allegations in the Complaint. Plaintiffs argue they can prove, through expert testimony and statistical models, that their injuries are direct and separate from the injuries to their participants. At this early stage, the Court has no basis for rejecting this allegation and reaching a different conclusion. Defendants are essentially asking the Court to decide, without the benefit of discovery, depositions, and testimony all of which the Supreme Court was able to rely on in Holmes, U.

Plaintiffs, on the other hand, argue that they can. It is not the Court's function to decide, in a motion to dismiss, as opposed to a motion for summary judgment at the close of discovery, whether Plaintiffs can develop the evidence to support their claims. Second, a close look at Plaintiffs' complaint reveals that, if Plaintiffs' allegations are true, Defendants' activities did in fact bring real injury to the Funds' trust assets separate and apart from the harm to their participants: the trust assets were greatly diminished by medical expenditures necessitated by Defendants' conduct; in the absence of these expenditures, the Funds could have invested in programs designed to reduce smoking among their participants, or programs designed to improve the general health and well-being of their participants; because of these enormous expenditures, the financial stability of the Funds has been threatened.

Because Defendants prevented Plaintiffs from obtaining accurate information on cigarette products, and prevented the introduction of safer products into the market, Plaintiffs were unable to take direct action to reduce smoking among their participants. In summary, it is far too early at this stage of the litigation, with no facts and only speculative arguments to support a different conclusion, to say that Plaintiffs could not conclusively prove the damages they have suffered above and beyond those recoverable under subrogation. Defendants argue that because Plaintiffs' injuries are necessarily derivative of those suffered by the Funds' participants, the danger of duplicative recovery is great, and the Court would have to develop complex and convoluted formulas to apportion damages between the different parties which might claim entitlement to any recovery gained: e.

The Funds have responsibilities and fiduciary duties to preserve the trust assets, and to ensure that the trust assets are not wrongfully diminished. Any harm done to the trust assets cannot be personally recovered by any party other than the Funds; the Funds' harm is sole and separate from that suffered by the Funds' participants, and encompasses injuries that the participants could not recover for, including loss of financial health and stability, and inability to provide their participants with effective smoking-cessation and other general health programs because of their inability to obtain accurate information on smoking.

Second, Defendants overlook the existence of the single satisfaction rule. See Lamphier v. Washington Hosp. The single satisfaction rule would allow Defendants to get credit for damages paid to these Plaintiffs should there be any subsequent lawsuits awarding damages to Fund participants, employers, or health insurers, to the extent those damages overlapped. Consequently, Defendants' fear of multiple recoveries is not an effort to protect against duplicative recoveries, but an effort to prevent any recovery. This is not what the Holmes Court had in mind when it announced the policy considerations behind the rule of remoteness.

Because the Funds seek to recover only for depletion of the trust assets, because they are the only plaintiffs who can recover for this harm, and because the single satisfaction rule will protect against any subsequent duplicative recoveries, Defendants have presented no arguments warranting dismissal of any of Plaintiffs' claims because of an inability to apportion damages or avoid multiple recoveries.

Thus upon review of the three Holmes factors bearing on administrative convenience, the Court concludes that Defendants have failed to present convincing arguments that, as a matter of law, Plaintiffs' injuries are so remote that a jury could not reasonably find that Defendants proximately caused their injury. This is not to say, after further discovery and full disclosure of expert testimony, statistical models, mathematical formulas, etc. However, at the stage of a motion to dismiss for failure to state a claim, where Conley instructs the Court to liberally construe the complaint and draw all factual inferences in favor of the Plaintiffs, it cannot be said that they necessarily stand in too remote a position to recover from the injuries they allege.

As has been discussed, the proximate cause analysis mandated by Holmes requires consideration of public policy factors. That balancing of factors, especially in light of the significance of the public health questions, weighs heavily in favor of finding that Plaintiffs' claims are sufficiently related to the conduct alleged that Defendants must be held legally accountable if those claims are found to have merit.

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As to administrative convenience, the other factor which Holmes requires us to consider in our proximate cause analysis, the creativity of counsel and their experts as well as the disclosures mandated by the discovery process will reveal whether the difficulties of ascertaining and apportioning damages can be overcome. There is nothing inherent in Plaintiffs' claims or the structure of our trial procedure to suggest that this cannot be accomplished.

In addition to their primary argument regarding the remoteness of Plaintiffs' injuries, Defendants advance several additional grounds for dismissing Plaintiffs' claims. Defendants argue that Plaintiffs have failed to show the requisite injury to their business or property, as required by RICO, because their injuries are derivative of their participants' personal injuries. The civil remedy provision of RICO allows "[a]ny person injured in his business or property by reason of a violation of section of this chapter [to] sue therefor in any appropriate United States district court The "business or property" clause has been interpreted to preclude recovery for personal injuries.

See Morrison v. Syntex Labs. United Airlines, F. University Students Co-op. Ass'n, F. Platt, F. Defendants' arguments, although dressed in the language of the RICO statute and supporting caselaw, are really nothing more than the remoteness arguments made in the section above, and therefore do not need to be repeated here. As noted earlier, Plaintiffs clearly state that the injuries for which they seek to recover are the injuries to the trust assets. Plaintiffs do not merely seek reimbursement for the medical costs expended on behalf of their beneficiaries, for this would clearly fall within the prohibition against such recovery in the statute and caselaw.

Injury to the trust assets is an injury to "business or property. It remains to be seen whether Plaintiffs can satisfactorily segregate the injuries to the trust assets from the derivative injuries to their participants, but it is too early in the litigation to make this determination.

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The antitrust statutes under which Plaintiffs bring their claims also have a "business or property" requirement. In AGC, the Supreme Court set forth several factors to be considered when determining whether a plaintiff has stated a claim under the Clayton Act, and thus suffered an "antitrust injury".

This factor is sometimes referred to as the "consumers or competitors" factor, because Plaintiffs must be consumers or competitors in the relevant market in order to suffer injuries of the type contemplated by the antitrust statutes. Second, using the Holmes analysis, Plaintiffs' injuries cannot be too direct or remote.

This issue has already been addressed in the Court's discussion of remoteness, supra at Third, Plaintiffs' injuries cannot be too speculative. Plaintiffs attempt to bring their claims within the "consumers or competitors" framework, the first element under AGC, in two ways. First, they argue that both they and Defendants participate in the relevant market, Defendants as sellers and Plaintiffs as prospective buyers of nicotine products.

Plaintiffs argue that they would have covered, paid for, and encouraged the use of substitute nicotine products for treatment, had such products not been fraudulently kept off the market. Plaintiffs' theory is implausible. At best, Plaintiffs would have an unusually difficult task proving that, but for Defendants' conduct, they would have been direct consumers in the nicotine products market.

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More significantly, the injuries Plaintiffs allege are not the sort of anticompetitive injuries Congress intended to redress through the antitrust statutes. Even assuming that Plaintiffs would have paid for or encouraged the use of nicotine replacement products, had they been available, Plaintiffs would not have been "consumers" in that market in the usual sense of that word. The actual consumers or users would still be the Funds' participants, and the Funds' reimbursement for such products would make them, at most, indirect purchasers.

The right of an indirect purchaser to sue under the antitrust laws was addressed and rejected in Illinois Brick. Infrastructure damages, the injuries Plaintiffs allege, are not the type that would result from anticompetitive activity in the nicotine products market, at least as the antitrust statutes contemplate such injuries.

Second, Plaintiffs try to bring their situation within the "consumers or competitors" framework by arguing that that requirement is not applicable to an antitrust claim. Plaintiffs' support for this contention lies in one paragraph from McCready, U. Plaintiffs' reliance on McCready is misplaced. First, the plaintiff in McCready was herself a consumer in the relevant market, as recognized by the Court the very next year, when it decided AGC. Second, in AGC the Court rejected that reading of the Clayton Act because it would "encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation.

Third, a literal reading of the phrase in McCready upon which Plaintiffs rely does not necessitate the conclusion Plaintiffs reach. While the protections of the antitrust statutes may carry over to groups other than the consumers and competitors in a particular market, that does not mean that anyone other than a consumer or competitor in that market may bring suit under those statutes. Finally, Plaintiffs argue that their damages are not so speculative as to warrant dismissing their antitrust claims.

However, given the fact that they are neither consumers nor competitors in the relevant market, it is difficult to see how Plaintiffs' antitrust injuries would not be speculative. While Plaintiffs might be able to prove damages for purposes of their other claims, the injuries they allege are too speculative in the antitrust context, given their failure to explain how they were or would have been participants in the relevant market.

Because Plaintiffs have failed to show that they suffered an antitrust injury as consumers or competitors in the relevant market, and because they have failed to specify their antitrust damages, Plaintiffs have failed to state a claim under the antitrust statutes. Defendants argue that Plaintiffs' fraud claim should be dismissed, first, because Plaintiffs failed to show how they justifiably relied on Defendants' alleged fraudulent concealments and representations, and second, because Plaintiffs failed to plead this claim with particularity. As to the first point, Defendants argue that it is insufficient for Plaintiffs merely to allege reliance, and that they must allege justified reliance.

Defendants further note that any reliance by Plaintiffs would not be justified, given that cigarette warning labels have been on cigarette packages for over thirty years. Defendants cite to two cases for their assertion that Plaintiffs must plead justified reliance. Neither case stands for the proposition Defendants assert. Shama Restaurant Corp. District of Columbia, 78 F. The case involved termination of a lease agreement, and the court relied heavily on the standard of justified reliance set forth in the Restatement of Contracts. Nowhere in either case is there any suggestion that a plaintiff bringing a fraud claim in a non-contract case needs to plead that his reliance was justified.

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