United States v. Philip Morris USA, Inc.

FINAL OPINION

TABLE OF CONTENTS

I. INTRODUCTION.........................................................26

A. Overview.............................................................26

B. Preliminary Guidance for the Reader....................................29

II. PROCEDURAL HISTORY.................................................31

III. CREATION, NATURE, AND OPERATION OF THE ENTERPRISE..........34

A. Pre-1953 Overview — The Rise in American Smoking and the Status of Scientific Research on Smoking and Health.............................35

B. Creation of the Enterprise .............................................36

C. TIRC/CTR — Tobacco Industry Research Committee/Couneil for Tobacco Research-USA..............................................41

1. Selection and Approval of TIRC’s Scientific Advisory Board Members and Scientific Director...................................46

2. Research Activities of TIRC/CTR....................................49

3. Public Relations Activities of TIRC/CTR..............................53

4. Publications and Public Statements of TIRC/CTR......................56

a. TIRC/CTR Annual Reports.....................................56

b. TIRC/CTR Newsletters........................................58

c. TIRC/CTR Press Releases and Other Public Statements............60

D. Tobacco Institute......................................................62

1. Formation of the Tobacco Institute ..................................62

2. Relationship Between the Tobacco Institute and TIRC/CTR.............66

3. Tobacco Institute Press Releases, Public Statements, Advertisements, Brochures, and Other Publications..................70

4. Tobacco Institute Committees.......................................77

a. Committee of Counsel and Outside Counsel.......................77

b. Tobacco Institute Executive Committee ..........................80

c. Tobacco Institute Communications Committee.....................81

5. Tobacco Institute College of Tobacco Knowledge.......................82

6. Tobacco Institute Testing Laboratory................................86

E. Joint Research Activity Directed by Defendants’ Executives and Lawyers...........................................................87

1. Witness Development..............................................87

2. CTR Special Projects ..............................................91

a. Nature of CTR Special Projects.................................91

b. Lawyers’ Involvement with CTR Special Projects..................94

c. Scientists Funded Through CTR Special Projects.................100

3. Lawyers’ Special Accounts.........................................100

a. Special Account No. 3.........................................101

b. Special Account No. 4.........................................101

c. Special Account No. 5.........................................106

d. Institutional Grants...........................................107

F. Committees .........................................................108

*16 1. Research Review Committee, Research Liaison Committee, and Industry Research Committee....................................108

2. Industry Technical Committee .....................................110

3. Tobacco Working Group...........................................112

G. Coordinated Smoking and Health Literature Collection and Retrieval.....115

H. Defendants’ Organizations Focused on ETS Issues .......................118

I. International Organizations, Committees, and Groups.....................119

1. Overview........................................................119

2. TMSC — Tobacco Manufacturers’ Standing Committee.................123

3. TRC — Tobacco Research Council...................................125

4. TAC — Tobacco Advisory Council ...................................126

5. ICOSI — International Committee on Smoking Issues..................129

6. INFOTAB — International Tobacco Information Center................132

7. TDC — Tobacco Documentation Centre ..............................135

8. CORESTA — Center for Cooperation in Scientific Research Relative to Tobaceo/Centre de Coopération pour les Recherches Scienti-fiques Relatives au Tabac........................................136

9. Tobacco Institute Interaction with Overseas and International Groups........................................................137

J. Dissolution of CTR and the Tobacco Institute............................141

1. CTR............................................................142

2. Tobacco Institute.................................................143

IV. THE DEFENDANTS ARE ENGAGED IN AND THEIR ACTIVITIES AFFECT INTERSTATE AND FOREIGN COMMERCE...................143

A. Philip Morris Companies..............................................143

B. Philip Morris........................................................143

C. R.J. Reynolds........................................................144

D. Liggett.............................................................144

E. Lorillard............................................................144

F. BATCo .............................................................144

G. Brown & Williamson..................................................144

H. American ...........................................................144

I. Tobacco Institute.....................................................144

J. TIRC/CTR..........................................................145

V. DEFENDANTS DEVISED AND EXECUTED A SCHEME TO DEFRAUD CONSUMERS AND POTENTIAL CONSUMERS OF CIGARETTES IN MOST, BUT NOT ALL, OF THE AREAS ALLEGED BY THE GOVERNMENT.......................................146

A. Defendants Have Falsely Denied, Distorted and Minimized the Significant Adverse Health Consequences of Smoking for Decades.............146

1. Cigarette Smoking Causes Disease..................................146

2. Scientific Research on Lung Cancer up to December 1953..............148

a. Scientists Investigating the Rise in the Incidence of Lung Cancer Linked Smoking and Disease before 1953 ...............148

b. By 1953, Defendants Recognized the Need for Concerted Action to Confront Accumulating Evidence of the Serious Consequences of Smoking ...................................153

3. Developments Between 1953 and 1964 ...............................155

a. Between 1953 and 1964, the Evidence Demonstrating that Smoking Causes Significant Adverse Health Effects Grew Although No Consensus Had Yet Been Reached................155

b. Before 1964, Defendants Internally Recognized the Growing Evidence Demonstrating that Smoking Causes Significant Adverse Health Effects......................................164

c. In the 1950s, Defendants Began Their Joint Campaign to Falsely Deny and Distort the Existence of a Link Between *17 Cigarette Smoking and Disease, Even Though Their Internal Documents Recognized Its Existence ......................168

4. The 1964 Surgeon General Report Represented a Scientific Consensus that Smoking Causes Disease ..........................174

a. The Process and Methodology of the Surgeon General’s Report.....174

b. The Conclusions..............................................178

5. Post-1964 Research on the Adverse Health Effects of Smoking and Defendants’ Persistent Denials Thereof............................179

a. Following Publication of the 1964 Report, the Scientific Community Continued to Document the Link Between Smoking and an Extraordinary Number of Serious Health Consequences..............................................179

b. Defendants’ Internal Documents and Research from the 1960s, 1970s, and Beyond Reveal Their Continued Recognition that Smoking Causes Serious Adverse Health Effects and Then-Fear of the Impact of Such Knowledge on Litigation............180

c. Despite Their Internal Knowledge, Defendants Continued, From 1964 Onward, to Falsely Deny and Distort the Serious Health Effects of Smoking...................................187

6. As of 2005, Defendants Still Do Not Admit the Serious Health Effects of Smoking Which They Recognized Internally Decades Ago....................................... 204

7. Conclusions......................................................207

The Addictive Properties of Nicotine....................................208

1. Introduction.....................................................208

2. Cigarette Smoking Is Addictive and Nicotine Is the Primary Element of that Addiction .......................................209

a. How Nicotine Operates within the Body.........................209

b. Evolving Definitions of “Addiction” and Classification of Nicotine...................................................211

c. Consequences of the Addictiveness of Nicotine ...................216

d. Conclusion...................................................218

3. Defendants Were Well Aware that Smoking and Nicotine Are Addictive......................................................218

a. Philip Morris.................................................219

b. R.J. Reynolds................................................231

c. BATCo......................................................237

d. Brown & Williamson..........................................258

e. Lorillard....................................................266

f. American Tobacco Company...................................269

g. CTR........................................................270

4. Defendants Publicly Denied that Nicotine Is Addictive and Continue to Do So..............................................271

a. Philip Morris.................................................272

b. R.J. Reynolds................................................274

c. BATCo......................................................277

d. American Tobacco Company...................................278

e. Brown & Williamson..........................................278

f. Lorillard ....................................................279

g. Liggett......................................................280

h. Tobacco Institute.............................................281

i. CTR........................................................286

j. Defendants’ Conduct Continues.................................286

5. Defendants Concealed and Suppressed Research Data and Other Evidence that Nicotine Is Addictive...............................289

a. Philip Morris.................................................290

b. BATCo......................................................297

e. Brown & Williamson..........................................298

d. American Tobacco Company...................................303

*18 e. Tobacco Institute.............................................303

f. CTR and Other Defendant Funded Research Groups..............303

6. Conclusions......................................................307

C. Nicotine “Manipulation”: Defendants Have Falsely Denied that They Can and Do Control the Level of Nicotine Delivered In Order to Create and Sustain Addiction........................................308

1. For Decades, Defendants Have Recognized that Controlling Nicotine Delivery, in Order to Create and Sustain Smokers’ Addiction, Was Necessary to Ensure Commercial Success............309

a. Defendants Recognized the Need to Determine “Minimum” and “Optimum” Nicotine Delivery Levels in Order to Provide Sufficient “Impact” and “Satisfaction” to Cigarette Smokers...................................................309

(1) Philip Morris.............................................311

(2) R.J. Reynolds ............................................312

(3) Brown & Williamson and BATCo............................314

(4) Lorillard.................................................315

(5) Liggett..................................................315

b. Defendants Have Long Recognized that Controlling the Nicotine to Tar Ratio Would Enable Them to Meet Minimum and Optimum Nicotine Delivery Levels...................315

(1) Philip Morris.............................................315

(2) R.J. Reynolds ............................................319

(3) Brown & Williamson and BATCo............................325

(4) American................................................328

(5) Lorillard.................................................329

(6) Liggett..................................................333

c. Defendants Understood the Correlation Between Nicotine Delivery and Cigarette Sales.................................334

(1) Philip Morris.............................................334

(2) R.J. Reynolds ............................................334

(3) Brown & Williamson and BATCo............................335

(4) Lorillard.................................................336

2. Defendants Researched, Developed, and Utilized Various Designs and Methods of Nicotine Control to Ensure that All Cigarettes Delivered Doses of Nicotine Adequate to Create and Sustain Addiction......................................................337

a. Defendants Recognized the Need to Design Cigarettes that Would Produce Low Nicotine and Tar Measurements under the FTC Method While Also Delivering the Minimum Nicotine Levels to Create and Sustain Addiction................338

b. Leaf Blend and Filler: Defendants Controlled the Amount and Form of Nicotine Delivery in Their Commercial Products by Controlling the Physical and Chemical Make-Up of the Tobacco Blend and Filler....................................339

(1) Philip Morris.............................................341

(2) R.J. Reynolds ............................................343

(3) Brown & Williamson and BATCo............................344

(4) American................................................345

(5) Lorillard.................................................347

(6) Liggett..................................................348

c. Nicotine to Tar Ratio: Defendants Have Used Physical Design Parameters to Increase the Nicotine to Tar Ratio of Their Cigarettes.................................................349

(1) Filter Design.............................................350

(2) Ventilation and Air Dilution................................351

(3) Paper Porosity and Composition............................351

d. Smoke pH and Ammonia: Defendants Altered the Chemical Form of Nicotine Delivered in Mainstream Cigarette Smoke *19 for the Purpose of Improving Nicotine Transfer Efficiency and Increasing the Speed with Which Nicotine Is Absorbed by Smokers................................................352

(1) Scientific Overview........................................352

(2) Individual Defendants’ Documents ..........................357

(a) Philip Morris .........................................357

(b) R. J. Reynolds.........................................360

(e) Brown & Williamson and BATCo........................364

(d) American.............................................369

(e) Lorillard.............................................370

(f) Liggett...............................................371

e. Other Additives: Defendants Researched the Use of Other Additives to Control Nicotine Delivery.........................372

3. Defendants Have Made False and Misleading Public Statements Regarding Their Control of the Nicotine Content and Delivery of Their Products.................................................374

a. The Waxman Hearings........................................374

b. Defendants’ False and Misleading Public Statements Continued After the Waxman Hearings........................380

c. Testimony Consistent with Fraudulent Public Statements..........383

4. Conclusions......................................................383

D. The Government Has Failed to Prove by a Preponderance of the Evidence that Defendants Deliberately Chose Not to Utilize or Market Feasible Designs or Product Features that Could Produce Less Hazardous Cigarettes..........................................384

1. Introduction.....................................................384

2. Defendants Have Long Acknowledged Internally the Existence of a Market for a Genuinely Less Hazardous Cigarette..................385

3. Defendants Received Conflicting Messages From the Government and the Public Health Community About Their Efforts to Create and Market Less Hazardous Cigarettes............................386

4. As Part of the Effort to Make Less Hazardous Cigarettes, Defendants Experimented with General and Selective Reduction.....389

a. General Reduction............................................389

b. Selective Reduction...........................................391

(1) Defendants’ Efforts to Reduce Benzo(a)pyrene................392

(2) Defendants’ Efforts to Reduce Phenols Through Use of Charcoal Filtered Cigarettes .............................392

(a) Philip Morris .........................................393

(b) R J Reynolds..........................................395

(c) Lorillard’s York Cigarette..............................395

(3) Defendants’ Efforts to Reduce Ciliastats.....................396

(4) Defendants’ Efforts to Reduce Delivery of Tobacco-Specific Nitrosamines....................................396

5. Defendants’ Efforts to Develop/Market Potentially Less Hazardous Non-Conventional Products......................................399

a. Philip Morris.................................................399

(1) Accord...................................................399

(2) Next....................................................400

(3) Nicotine Analogue Program................................401

b. RJ Reynolds.................................................402

(1) The Multijet Filter........................................402

(2) Heated Tobacco Products..................................403

(a) Premier..............................................403

(b) Eclipse...............................................410

(3) EW/Winston Select........................................415

e. BATCo and Brown & Williamson...............................420

(1) FACT Cigarette..........................................420

(2) Project Ariel .............................................421

*20 (3) Project Airbus............................................422

(4) Advance.................................................423

d. Lorillard’s Zero Tar and PMO Projects..........................426

e. Liggett’s Project XA..........................................426

6. The Government Has Not Proven by a Preponderance of the Evidence that Defendant Had a “Gentleman’s Agreement” Not to Develop a Less Hazardous Cigarette and Not to Do In-House Biological Research on the Hazards of Smoking.....................427

7. Conclusions......................................................429

E. Defendants Falsely Marketed and Promoted Low Tar/Light Cigarettes as Less Harmful than Full-Flavor Cigarettes in Order to Keep People Smoking and Sustain Corporate Revenues......................430

1. Low Tar/Light Cigarettes Offer No Clear Health Benefit over Regular Cigarettes .............................................431

a. History of Health Claims......................................431

b. The FTC Method.............................................433

c. The FTC Method Does Not Measure Actual Tar and Nicotine Delivery...................................................435

d. The Public Health Community Has Concluded that Low Tar Cigarettes Offer No Clear Health Benefit......................444

2. Based on Their Sophisticated Understanding of Compensation, Defendants Internally Recognized that Low Tar/Light Cigarettes Offer No Clear Health Benefit....................................456

a. Defendants Internally Recognized that Low Tar Cigarettes Are Not Less Harmful Than Full-Flavor Cigarettes ............456

(1) Philip Morris.............................................456

(2) R J Reynolds .............................................458

(3) Brown & Williamson.......................................459

(4) BATCo..................................................460

(5) Lorillard.................................................460

(6) Liggett..................................................460

b. Internally, Defendants Had an Extensive and Sophisticated Understanding of Smoker Compensation.......................461

(1) Philip Morris.............................................461

(2) R J Reynolds .............................................467

(3) Brown & Williamson.......................................469

(4) BATCo..................................................470

(5) American Tobacco.........................................474

(6) Lorillard.................................................474

3. Defendants Internally Recognized that Smokers Switch to Low Tar/Light Cigarettes, Rather than Quit Smoking, Because They Believe They Are Less Harmful..................................475

a. Defendants Recognized that Smokers Choose Light/Low Tar Cigarettes for a Perceived Health Benefit......................476

(1) Philip Morris.............................................477

(2) R.J. Reynolds ............................................481

(3) Brown & Williamson.......................................483

(4) BATCo..................................................485

(5) American Tobacco.........................................487

(6) Lorillard.................................................487

b. Defendants Internally Recognized that Smokers Rely on the Claims Made for Low Tar/Light Cigarettes as an Excuse/ Rationale for Not Quitting Smoking...........................488

(1) Tobacco Institute .........................................488

(2) Philip Morris.............................................488

(3) R.J. Reynolds ............................................492

(4) Brown & Williamson.......................................495

(5) BATCo..................................................497

(6) American Tobacco.........................................499

*21 (7) Lorillard.................................................499

(8) Liggett..................................................500

4. Despite Their Internal Knowledge, Defendants Publicly Denied that Compensation Is Nearly Complete and that the FTC Method is Flawed...............................................500

a. Tobacco Institute.............................................504

b. Philip Morris.................................................504

e. RJ Reynolds.................................................506

d. Brown & Williamson..........................................506

e. BATCo......................................................507

f. American Tobacco............................... 507

g. Lorillard ....................................................507

5. Despite Their Internal Knowledge, Defendants’ Marketing and Public Statements About Low Tar Cigarettes Continue to Suggest that They Are Less Harmful than Full-Flavor Cigarettes.....................................................507

a. Philip Morris.................................................513

(1) Philip Morris’s Low Tar Cigarette Marketing Techniques.....513

(2) Philip Morris’s Research on the Low Tar Cigarette Category...............................................524

(3) Philip Morris’s Public Statements About Low Tar Cigarettes..............................................527

b. R.J. Reynolds................................................529

(1) R.J. Reynolds’s Low Tar Marketing Techniques...............529

(2) R.J. Reynolds’s Research on the Low Tar Cigarette Category...............................................535

(3) RJR’s Public Statements About Low Tar Cigarettes...........537

c. Brown & Williamson..........................................537

(1) Brown & Williamson’s Marketing of Low Tar Cigarettes.....537

(2) Brown & Williamson’s Research on the Low Tar Cigarette Category...............................................540

(3) Brown & Williamson’s Public Statements About Low Tar Cigarettes..............................................545

d. BATCo......................................................546

(1) BATCo’s Research on the Low Tar Cigarette Category........546

(2) BATCo’s Public Statements About Low Tar Cigarettes ........549

e. American Tobacco Marketing of Low Tar Cigarettes..............549

f. Lorillard ....................................................554

(1) Lorillard’s Marketing of Low Tar Cigarettes..................554

(2) Lorillard’s Research on the Low Tar Cigarette Category.....558

g. Liggett......................................................560

6. Conclusions......................................................560

From the 1950s to the Present, Different Defendants, at Different Times and Using Different Methods, Have Intentionally Marketed to Young People Under the Age of Twenty-One in Order to Recruit “Replacement Smokers” to Ensure the Economic Future of the Tobacco Industry..................................................561

1. Definition of Youth................................................561

2. The Defendants Need Youth as Replacement Smokers ................561

3. Defendants’ Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation........................................565

a. Development of the Link Between Marketing and Youth Smoking........................_...........................565

(1) No Single-Source Causative Factor Can Describe the Complex Link Between Marketing and Youth Smoking.....565

(2) Public Health Authorities Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................566

*22 (3) Independent Studies Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................569

(4) Credible Expert Witnesses Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................570

b. The Ubiquity of Defendants’ Marketing Normalizes and Legitimizes Smoking for Youth...............................575

c. Risk Perception: The Inability of Youth to Grasp the Full Implications of Smoking.....................................576

4. Tracking Youth Behavior and Preferences Ensures that Marketing and Promotion Reach Youth .....................................580

a. Defendants Track Youth Behavior and Preferences...............580

(1) Philip Morris.............................................580

(2) Lorillard.................................................594

(3) American Tobacco, BATCo, and Brown & Williamson..........598

(4) R.J. Reynolds ............................................607

b. Defendants’ Marketing Employs Themes Which Resonate with Youth.....................................................616

(1) Philip Morris.............................................617

(2) Lorillard.................................................622

(3) Brown & Williamson.......................................625

(4) R.J. Reynolds ............................................630

c. Defendants Continue Price Promotions for Premium Brands Which Are Most Popular with Teens..........................639

(1) Philip Morris.............................................641

(2) Liggett..................................................643

(3) Lorillard.................................................643

(4) Brown & Williamson.......................................643

(5) R.J. Reynolds ............................................644

5. Defendants’ Marketing Successfully Reaches Youth...................645

a. Defendants’ Spending on Marketing and Promotion Has Continually Increased.......................................645

b. Defendants Advertise in Youth-Oriented Publications.............646

(1) Philip Morris.............................................647

(2) Liggett..................................................651

(3) Lorillard.................................................651

(4) Brown & Williamson.......................................653

(5) R.J. Reynolds ............................................654

c. Defendants Market to Youth Through Direct Mail................656

(1) Philip Morris.............................................656

(2) Lorillard.................................................658

(3) Brown & Williamson.......................................659

(4) R.J. Reynolds ............................................659

d. Defendants Market to Youth Through an Array of Retail Promotions................................................659

e. Defendants’ Promotional Items, Events and Sponsorships Attract Youth................................ 663

(1) Events...................................................663

(2) Sponsorships.............................................664

(3) Promotional Items ........................................667

6. Defendants’ Youth Smoking Prevention Programs Are Not Designed to Effectively Prevent Youth Smoking....................667

7. Despite the Overwhelming Evidence to the Contrary, Defendants’ Public Statements and Official or Internal Corporate Policies Deny that Their Marketing Targets Youth or Affects Youth Smoking Incidence..............................................672

a. Defendants Claim They Restrict Their Marketing to People Twenty-one and Older.......................................672

*23 (1) The 1964 Advertising Code.................................672

(2) Official Corporate Policies..................................674

b. Defendants Deny Their Marketing Influences Youth Smoking Initiation; Defendants’ Explanation for Their Marketing Practices Is Not Credible....................................676

(1) Tobacco Institute .........................................676

(2) Philip Morris.............................................682

(3) Liggett..................................................684

(4) Lorillard.................................................684

(5) BATCo and Brown & Williamson............................686

(6) RJ Reynolds .............................................688

8. Conclusions......................................................691

G. Defendants Have Publicly Denied What They Internally Acknowledged: that ETS Is Hazardous to Nonsmokers ...............................692

1. Introduction.....................................................692

2. The Consensus of the Public Health Community Is that ETS Causes Disease in Nonsmokers...................................693

a. The Development of the Consensus.............................695

b. The Consensus...............................................703

3. Internally, Defendants Recognized that ETS Is Hazardous to Nonsmokers...................................................708

a. ETS Research at Philip Morris’s Instituí fiir Biologische Forschung (INBIFO).......................................709

b. Defendants’ Recognition of the Validity of the Hirayama Study.....716

c. Other Internal Research and Statements Revealing Defendants’ Knowledge of the Health Risks of Passive Smoking.....718

4. Internally, Defendants Expressed Concern that the Mounting Evidence on ETS Posed a Grave Threat to Their Industry.....720

5. Defendants Made Public Promises to Support Independent Research on the Link Betwen ETS and Disease....................722

6. Defendants Undertook Joint Efforts to Undermine and Discredit the Scientific Consensus that ETS Causes Disease..................723

a. Defendants Acted Through a Web of Coordinated and Interrelated International and Domestic Organizations..........724

(1) 1975-1980: The Tobacco Institute ETS Advisory Group........724

(2) 1977-1991: “Operation Berkshire” ..........................727

(3) 1987: Operation Downunder................................732

(4) 1988-1999: The Center for Indoor Air Research (CIAR).....735

(a) CIAR Applied Projects.................................739

(b) Defendants Cultivated CIAR’s Apparent Independence.....742

(c) The Demise of CIAR...................................746

(5) PosW.991: IEMC.........................................746

(6) The Global ETS Consultancy Program.......................752

(a) Establishment and Goals of the ETS Consultancy Program ...........................................752

(b) Implementation of the ETS Consultancy Program: Recruiting, Training, and Educating the Consultants.........................................753

(c) The Indoor Air Pollution Advisory Group (IAPAG).........757

(d) The Appearance of “Independence”......................759

(e) Defendants’ Use of Consultants .........................760

(f) ARIA and IAI ........................................762

(g) The Industry’s ETS Consultants Cited and/or Published Without Disclosure of Tobacco Industry Ties ...............................................764

(h) ACVA/HBI...........................................766

(7) ETS Symposia............................................767

(a) The 1974 Bermuda (Rylander) “Workshop”...............768

(b) The Geneva (Rylander) Conference......................769

*24 (c) The Vienna Conference.................................771

(d) The 1987 Tokyo Conference.............................772

(e) The 1989 McGill “Symposium” ..........................774

b. Defendants and Their Paid Consultants Controlled ETS Research Findings.............. 777

(1) The 1995 Japanese Spousal Study...........................777

(2) The 1989 Malmfors/SAS Airline Study.......................781

(3) The 1992 HBI 585 Building Study...........................784

(4) The 2003 Enstrom/Kabat Study.............................786

7. Defendants Made False and Misleading Public Statements Denying that ETS Is Hazardous to Nonsmokers............................788

8. Defendants Continue to Obscure the Fact that ETS is Hazardous to Nonsmokers...................................................795

a. Websites and Other Public Statements..........................795

b. The Philip Morris External Research Program (PMERP)..........798

c. Other Initiatives..............................................799

9. Conclusions......................................................800

H. At Various Times, Defendants Attempted to and Did Suppress and Conceal Scientific Research and Destroy Documents Relevant to Their Public and Litigation Positions .................................801

1. Suppression and Concealment of Scientific Research..................801

a. R.J. Reynolds................................................802

b. BAT Group..................................................804

c. Philip Morris.................................................810

d. Lorillard ....................................................814

2. Document Destruction Policies.....................................814

a. BAT Group..................................................815

b. R.J. Reynolds................................................831

3. Improper use of Attorney-Client and Work Product Privileges.........832

a. BAT Group..................................................832

b. R.J. Reynolds................................................836

c. Liggett......................................................836

d. Findings by Other Courts......................................836

4. Conclusions......................................................839

VI. THE PROVISIONS AND IMPLICATIONS OF SETTLEMENT AGREEMENTS BY DEFENDANTS.....................................839

A. Liggett’s Settlement Agreement with Various States......................839

B. The Master Settlement Agreement.....................................841

1. Provisions of the MSA.........................................841

2. Enforcement of the MSA......................................844

3. Developments Since the MSA..................................848

VII. DEFENDANTS HAVE VIOLATED 18 U.S.C. 1962(c)........................851

A. Introduction.........................................................851

B. Defendants Engaged in a Scheme to Defraud Smokers and Potential Smokers..........................................................852

1. Defendants Falsely Denied the Adverse Health Effects of Smoking.....854

2. Defendants Falsely Denied that Nicotine and Smoking Are Addictive......................................................856

3. Defendants Falsely Denied that They Manipulated Cigarette Design and Composition so as to Assure Nicotine Delivery Levels Which Create and Sustain Addiction........................858

4. Defendants Falsely Represented that Light and Low Tar Cigarettes Deliver Less Nicotine and Tar and, Therefore, Present Fewer Health Risks than Full-Flavor Cigarettes............859

5. Defendants Falsely Denied that They Market to Youth................861

6. Defendants Falsely Denied that ETS Causes Disease..................864

7. Defendants Suppressed Documents, Information, and Research.........866

*25 C. Defendants Established an Enterprise..................................867

1. Applicable Legal Standards........................................867

2. Defendants’ Enterprise Had a Common Purpose......................869

3. The Enterprise operated through both formal and informal organization....................................................870

4. The Enterprise Has Functioned as a Continuous Unit.................871

D. The Enterprise Engaged in and Its Activities Affected Interstate and Foreign Commerce.................................................872

E. Each Defendant Was Associated with, but Distinct from, the Enterprise.....873

1. Each Defendant Is Associated with the Enterprise....................873

2. Each Defendant is Distinct from the Enterprise......................875

F. Each Defendant Participated in the Conduct of the Enterprise.............875

G. Each Defendant Carried Out Its Participation in the Conduct of the Enterprise by Engaging in a Pattern of Racketeering Activity...........878

1. The Government Has Proven that Defendants Caused Mailings and Wire Transmissions, in Furtherance of the Scheme to Defraud, in Violation of 18 U.S.C. §§ 1341 and/or 1343 .........................878

a. Defendants’ Routine Mailing Practices ..........................881

(1) Philip Morris.............................................881

(2) Lorillard.................................................881

(3) Liggett..................................................881

(4) R. J. Reynolds ............................................881

(5) The Tobacco Institute .....................................882

(6) Council For Tobacco Research..............................882

b. Prior Stipulations and Admissions Establish the Mailings and Wire Transmissions Underlying 79 of the Alleged 145 Racketeering Acts..........................................882

c. The Mailings and Wire Transmissions Underlying the Alleged Racketeering Acts Which Involve Defendants’ Press Releases and Advertisements Were Disseminated to the Public Via the United States Mails and Wire Transmissions................882

d. Defendants Caused Wire, Radio, and Television Transmissions Underlying the Racketeering Acts............................883

e. The Mailings and Wire Transmissions Involving Communications Were Sent or Received by Defendants or their Representatives............................................884

f. The Cigarette Company Defendants Are Liable for the Mailings and Wire Transmissions Underlying the Racketeering Acts Committed By Defendants CTR and TI...................885

2. The First Amendment Does Not Protect Defendants’ False and Misleading Public Statements....................................886

a. Noerr-Pennington Protects Only Those Defendants’ Statements Made in the Course of Petitioning the Legislature; It Does Not Immunize Statements Made with the Purpose of Influencing Smokers, Potential Smokers, and the General Public.....................................................886

b. The Government Has Met the Necessary Standard of Proof to Show that Defendants’ Actions Are Fraudulent.................887

3. Defendants Engaged in a Pattern of Racketeering Activity in Furtherance of the Scheme to Defraud............................889

a. Each Defendant Committed at Least Two Racketeering Acts, the Last One of Which Occurred Within Ten Years from the Commission of the Prior Racketeering Act.....................889

b. The Racketeering Acts Are Related and Continuous...............889

(1) The Racketeering Acts Are Related.........................890

(2) The Racketeering Acts Have Been Continuous................890

4. Defendants Acted with the Specific Intent to Defraud or Deceive.....891

a. Defendants Are Liable for the Acts of Their Officers, Employees, and Agents......................................892

*26 b. Defendants Are Deemed to Possess the Collective Knowledge of Their Officers, Employees, and Agents......................893

c. Specific Intent May Be Established by the Collective Knowledge of Each Defendant and of the Enterprise as a Whole.....895

5.Defendants’ False and Fraudulent Statements, Representations, and Promises Were Material.....................................898

VIII.DEFENDANTS HAVE VIOLATED 18 U.S.C. § 1962(d)......................901

A. Applicable Case Law.................................................901

B. Each Defendant Is Liable for the RICO Conspiracy Charge Because Each Entered into the Requisite Conspiratorial Agreement..............903

C. Liggett Withdrew from the Conspiracy .................................906

IX. ALTRIA IS LIABLE FOR ITS VIOLATIONS OF 18 U.S.C. § 1962(c) and (d)....................................................................907

X. THERE IS A LIKELIHOOD OF PRESENT AND FUTURE VIOLATIONS OF RICO................................................908

A. Applicable Law......................................................908

B. The Enterprise’s Scheme to Defraud Presents Continuing Opportunities for Defendants to Commit Violations of 18 U.S.C. § 1962(c) and (d) ...............................................................911

C. The MSA Has Not Sufficiently Altered Defendants’ Conduct to Justify Not Imposing Appropriate Remedies .................................913

D. As to Certain Defendants, There is Not a Reasonable Likelihood of Future Violations of 18 U.S.C. § 1962(c) and (d)........................915

1. CTR............................................................915

2. The Tobacco Institute.............................................916

3. Liggett..........................................................918

XI.REMEDIES...............................’.............................919

A. Legal Standards Governing Remedies ..................................919

B. Specific Remedies....................................................923

1. Prohibition of Brand Descriptors ...................................923

2. Corrective Communications........................................925

3. Disclosure of Documents and Disaggregated Marketing Data...........928

a. Depositories .................................................929

b. Websites ....................................................930

c. Privilege Claims..............................................931

d. Disaggregated Marketing Data.................................932

4. General Injunctive Provisions......................................932

5. National Smoker Cessation Program................................933

6. Youth Smoking Reduction Targets..................................933

7. Corporate Structural Changes......................................934

8. Public Education and Countermarketing Campaign...................936

9. Costs ...........................................................937

I. INTRODUCTION

A. Overview

On September 22, 1999, the United States brought this massive lawsuit against nine cigarette manufacturers of cigarettes and two tobacco-related trade organizations. The Government alleged that Defendants have violated, and continue to violate, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, by engaging in a lengthy, unlawful conspiracy to deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, “light” cigarettes, and their manipulation of the de *27 sign and composition of cigarettes in order to sustain nicotine addiction. As Justice O’Connor noted in Food and Drug Administration, et al. v. Brown & Williamson Tobacco Corporation, et al., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), “[t]his case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use.”

In particular, the Government has argued that, for approximately fifty years, the Defendants have falsely and fraudulently denied: (1) that smoking causes lung cancer and emphysema (also known as chronic obstructive pulmonary disease (“COPD”)), as well as many other types of cancer; (2) that environmental tobacco smoke causes lung cancer and endangers the respiratory and auditory systems of children; (3) that nicotine is a highly addictive drug which they manipulated in order to sustain addiction; (4) that they marketed and promoted low tar/light cigarettes as less harmful when in fact they were not; (5) that they intentionally marketed to young people under the age of twenty-one and denied doing so; and (6) that they concealed evidence, destroyed documents, and abused the attorney-client privilege to prevent the public from knowing about the dangers of smoking and to protect the industry from adverse litigation results.

The following voluminous Findings of Fact demonstrate that there is overwhelming evidence to support most of the Government’s allegations. As the Conclusions of Law explain in great detail, the Government has established that Defendants (1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962(d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962(c). Accordingly, the Court is entering a Final Judgment and Remedial Order which seeks to prevent and restrain any such violations of RICO in the future.

In particular, the Court is enjoining Defendants from further use of deceptive brand descriptors which implicitly or explicitly convey to the smoker and potential smoker .that, they are less hazardous to health than full flavor cigarettes, including the popular descriptors “low tar,” “light,” “ultra light,” “mild,” and “natural.” The Court is also ordering Defendants to issue corrective statements in major newspapers, on the three leading television networks, on cigarette “onserts,” and in retail displays, regarding (1) the adverse health effects of smoking; (2) the addictiveness of smoking and nicotine; (3) the lack of any significant health benefit from smoking “low tar,” “light,” “ultra light,” “mild,” and “natural” cigarettes; (4) Defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (5) the adverse health effects of exposure to secondhand smoke.

Finally, the Court is ordering Defendants to disclose their disaggregated marketing data to the Government in the same form and on the same schedule which they now follow in disclosing this material to the Federal Trade Commission. All such data shall be deemed “confidential” and “highly sensitive trade secret information” subject. to the protective Orders which have long been in place in this litigation.

Unfortunately, a number of significant remedies proposed by the Government could not be considered by the Court because of a ruling by the Court of Appeals in United States v. Philip Morris, USA Inc., et al., 396 F.3d 1190 (D.C.Cir.2005). In that opinion, the Court held that, because the RICO statute allows only forward-looking remedies to prevent and restrain violations of the Act, and does not *28 allow backward-looking remedies, disgorgement (i.e., forfeiture of ill-gotten gains from past conduct) is not a permissible remedy.

Applying this same legal standard, as it is bound to do, this Court was also precluded from considering other remedies proposed by the Government, such as a comprehensive smoker cessation program to help those addicted to nicotine fight their habit, a counter marketing program run by an independent entity to combat Defendants’ seductive appeals to the youth market; and a schedule of monetary penalties for failing to meet pre-set goals for reducing the incidence of youth smoking.

The seven-year history of this extraordinarily complex case involved the exchange of millions of documents, the entry of more than 1,000 Orders, and a trial which lasted approximately nine months with 84 witnesses testifying in open court. Those statistics, and the mountains of paper and millions of dollars of billable lawyer hours they reflect, should not, however, obscure what this case is really about. It is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community. Moreover, in order to sustain the economic viability of their companies, Defendants have denied that they marketed and advertised their products to children under the age of eighteen and to young people between the ages of eighteen and twenty-one in order to ensure an adequate supply of “replacement smokers,” as older ones fall by the wayside through death, illness, or cessation of smoking. In short, Defendants have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege. 1

*29 What a sad and disquieting chapter in the history of an honorable and often courageous profession.

B. Preliminary Guidance for the Reader

Courts must decide every case that walks in the courthouse door, even when it presents the kind of jurisprudential, public policy, evidentiary, and case management problems inherent in this litigation. From the day this lawsuit was filed, it has garnered much media attention. Recognizing this, the Court hopes to assist the intrepid reader with her task by explaining certain principles and procedures that it has followed.

First and foremost, the Court has decided that, as fact finder, its obligation is to present to the appellate courts, the parties, and the public all the relevant facts which have been proven by a preponderance of this massive body of evidence consisting of testimony (including written direct examination, in-court cross examination, and re-direct examination of witnesses in this trial, as well as deposition and trial testimony of witnesses in related cases), and thousands of exhibits. By virtue of this procedure, the appellate courts will have before them all the factual determinations they need to decide the numerous legal issues which will unquestionably be raised.

Certain consequences flow from the decision to present the most complete factual picture possible. Even though this Opinion is unusually long and detailed, on occasion, there are very few facts presented on important issues and questions leap off the page to the reader. In those instances, it should be understood that the parties presented no further evidence and the Court has stated whatever Findings can be appropriately made on whatever evidence does exist; the record must remain bare as to the unanswered questions and the gaps in the evidence. On other occasions, some individual factual-findings may appear unclear or inconsistent with other factual findings. In those instances, the Conclusion to that Section will contain the Court’s final Findings, and its reasons for reaching them.

Second, in an effort to make the substance of the Opinion as accessible as possible, almost every Section of the Opinion in both the Findings of Fact and the Conclusions of Law contains an Introduction that provides an overview of the subject matter to be covered and a Conclusion that summarizes what has been found in that Section; the extensive detailed Findings between the Introduction and the Conclusion provide the factual “meat” between the two. In a few instances, Sections are so brief or so self-evident that no Introduction or Conclusion was necessary. Finally, Appendix I contains a Glossary of frequently used terms and concepts; Appendix II contains the relevant Surgeon Generals’ Reports and their major findings; and Appendix III contains all the Racketeering Acts charged by the Government.

Third, every effort has been made to make each Section self-contained so that it is complete and understandable in and of itself. Thus, a reader who is interested in only a particular topic, such as youth marketing, can pick up that Section, and obtain the information he needs without having to read the entire Findings of Fact. However, it has been virtually impossible to totally segregate the Findings presented in each Section. At times, the historical *30 data, the scientific data, and the relevant documentary materials overlap subject matter areas and therefore must be repeated in order to ensure that a Section can be read and understood by itself. By the same token, many individuals are identified numerous times in the text in an effort to make it easier for the reader to follow the narrative rather than having to search through many pages to re-familiarize himself with a person’s position within either a Government agency or one of the Defendant corporations.

Fourth, specific record citations have been given whenever possible. Many times an individual Finding of Fact is either a direct quote from a witness’s written or oral testimony or is taken directly from a proposed finding submitted by one of the parties and supported by the record and proved by at least a preponderance of the evidence, Vast amounts of testimony were given — by eminent and respected scientists, government officials and corporate executives. Only the portions of their testimony specifically cited in the Opinion were affirmatively credited and relied on by the Court. The Court has made it very clear when specific evidence referred to is being rejected or discredited.

Fifth, parties should understand that every Exhibit and Prior Testimony cited in the Findings of Fact is deemed admitted into evidence. A formal Order, accompanying this Opinion, will be entered listing those hundreds (perhaps thousands) of Exhibit numbers and Prior Testimonies, overruling any objections made thereto.

Sixth, several observations need be made about witness bias and credibility. For the most part, each individual Chapter in the Findings of Fact explains why certain facts were found, why certain witnesses were credited, and why the testimony of certain witnesses was either discredited as just plain not believable or, in most instances, outweighed by other more convincing and credible evidence.

Most of the witnesses whose testimony was most vehemently attacked by the Defendants (such as Dr. David R. Kessler, 2 Dr. Michael C. Fiore, Dr. Jeffrey Wigand, and Dr. Cheryl Healton) were only relied upon for undisputed or relatively insignificant background facts (as with Dr. Kessler and Dr. Wigand), or testified about remedies which this Court could not consider on the merits under the Court of Appeals decision discussed above (as in the case of Dr. Fiore and Dr. Healton).

Much of the Defendants’ criticisms of Government witnesses focused on the fact that these witnesses had been long-time, devoted members of “the public health community.” To suggest that they were presenting inaccurate, untruthful, or unreliable testimony because they had spent their professional lives trying to improve the public health of this country is patently absurd. It is equivalent to arguing that all the Defendants’ witnesses were biased, inaccurate, untruthful, and unreliable because the great majority of them had earned enormous amounts of money working and/or consulting for Defendants and other large corporations, and therefore were so devoted to the cause of corporate America that nothing they testified to, even though presented under oath in a court of law, should be believed. Such simplistic attacks on the credibility of the sophisticated and knowledgeable witnesses who testified in this case are foolish.

All of this is not to deny that there were significant differences in the overall quali- *31 fieations of the Government’s witnesses and the Defendants’ witnesses. There were. The Government’s witnesses, viewed as a whole, were far more experienced, credentialed, and active in the area of smoking and health, whatever their particular area of specialty, than were the Defendants’. Many of the Government experts had participated extensively, over many years, in the long and drawn-out process of ascertaining the consensus of scientific opinions embodied in each Surgeon General’s Report. Virtually every one had taught at a well-regarded academic institution and written numerous peer-reviewed articles in their particular area of specialty. Many of the Government witnesses continued “hands on,” clinical work in their fields despite heavy commitments for research, writing, teaching, and lecturing to their peers.

The Defendants’ witnesses were obviously well educated in.their areas of specialty. Indeed, as was mentioned on many occasions, Defendants even presented the testimony of an impressive Nobel Prize winner. However, rarely did these witnesses have the depth and breadth of experience of the Government witnesses. Many had worked only in large corporations, and many for only one or two such employers. Many — although not all — had written relatively few peer-reviewed articles. Many of the highest paid experts of Defendants, while well credentialed in their particular fields, such as economics, presented relatively narrow testimony tailored to the particular problem or issue they were retained to opine on for purposes of this litigation. A few of Defendants’ experts had done virtually no individual research and written virtually no peer-reviewed articles, and a few were unfamiliar with the relevant facts and/or the major scientific literature on the issue about which they testified.

While the testimony of each person— expert or fact witness — was evaluated on its own merits, there can be no denying that,as a group, the Government’s witnesses were far more knowledgeable, experienced, and active in their respective fields.

Finally, despite the length and detail of the Findings of Fact, the evidentiary picture must be viewed in its totality in order to fully appreciate how massive the case is against the Defendants, how irresponsible their actions have been, and how heedless they have been of the public welfare and the suffering caused by the cigarettes they sell. 3

II. PROCEDURAL HISTORY

Plaintiff, the United States of America (“the Government”) brought this suit in 1999 against eleven tobacco-related entities (“Defendants”) 4 to recover health care *32 expenditures the Government has paid or will pay to treat tobacco-related illnesses allegedly caused by Defendants’ unlawful conduct. The Government also asked this Court to enjoin Defendants from engaging in fraudulent and other unlawful conduct and to order Defendants to disgorge the proceeds of their past unlawful activity.

In its original Complaint, the Government made four claims against Defendants under three federal statutes. The first statute, the Medical Care Recovery Act (“MCRA”), 42 U.S.C. §§ 26512653, provides the Government with a cause of action to recover certain specified health care costs it pays to treat individuals injured by a third-party’s tortious conduct (Count 1). The second statute is a series of amendments referred to as the Medicare Secondary Payer provisions (“MSP”), 42 U.S.C. § 1395y, which provides the Government with a cause of action to recover Medicare expenditures when a third-party caused an injury requiring treatment and a “primary payer” was obligated to pay for the treatment (Count 2). The third statute is the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (Counts 3 and 4), which provides private parties with a cause of action to recover treble damages due to injuries they received from a defendant’s unlawful racketeering activity and the government with a cause of action to seek other equitable remedies to prevent future unlawful acts. Joint Defendants moved to dismiss the case on all counts. On September 28, 2000, the Motion was granted in part and denied in part, and Counts 1 and 2 were dismissed. United States v. Philip Morris, Inc., 116 F.Supp.2d 131 (D.D.C.2000).

Continuing its case on Counts 3 and 4, the Government sought injunctive relief and $289 billion 5 in disgorgement of Defendants’ ill-gotten gains for what it alleges to be an unlawful conspiracy to deceive the American public.' The Government’s Amended Complaint describes a four-decade long conspiracy, dating back to at least 1953, to intentionally and willfully deceive and mislead the American public about,inter alia, the harmful nature of tobacco products, the addictive nature of nicotine, and harmfulness of low tar cigarettes. Amended Complaint (“Am.Compl.”) at ¶ 3. According to the Government, the underlying strategy Defendants adopted was to deny that smoking caused disease and to consistently maintain that whether smoking caused any kind of disease was still an “open question” for which no scientific consensus existed. ' Am. Compl. at ¶ 34. In furtherance of that strategy, Defendants allegedly issued deceptive press releases, published false and misleading articlés, destroyed and concealed documents which indicated that there was in fact a correlation between smoking and disease, and aggressively targeted children as potential *33 new smokers. Am. Compl. at ¶ 36. 6

The parties engaged in intensive discovery for more than two years, with the assistance of Special Master Richard Levie overseeing disputes and issuing 172 Reports and Recommendations, the majority of which were appealed to this Court. During discovery, the parties exchanged over 4,000 requests for production of documents. Defendant alone made available to the Government over 26 million pages of documents. In addition, the parties each took over 1,000 hours of depositions. As discovery progressed and trial loomed, the Court held regularly scheduled and, when events necessitated it, irregularly scheduled status conferences and conference calls and oversaw the filing of many status reports and praecipes.

In addition, the parties filed, pursuant to limitations imposed by the Court, 18 summary judgment motions and countless motions in limine. The Court granted all of the Government’s Motions for partial summary judgment to dismiss Defendants’ Affirmative Defenses based on: (1) the assertion that the Federal Trade Commission had exclusive authority over Defendants’ marketing activities (Order #356); (2) waiver, equitable estoppel, laches, unclean hands and in pari delicto (Order # 476); (3) the assertion that the Government’s claims and remedies sought violated the 8th Amendment of the Constitution and the Ex Post Facto Clause (Order # 509); (4) the assertion that constitutional separation of powers precludes the Government’s claims (Order # 510); (5) the assertion that the RICO claims and relief sought are prohibited by the 10th Amendment of the Constitution and by separation of powers and that Defendants are not jointly and severally liable for any disgorgement ordered by the Court (Order # 538); and (6) res judicata, collateral es-toppel, release, accord and satisfaction, and mootness (Order # 586). In addition, the Court granted the Government’s Motions for partial summary judgment that each Defendant is distinct from the RICO enterprise (if the Court were to determine that there is an enterprise) and that a Defendants’ liability for a RICO conspiracy does not require that Defendant to participate in the operation or management of the Enterprise (Order # 591). All other summary judgment motions of the Government and the Defendants were denied because the existence of material facts in dispute rendered summary judgment inappropriate.

Upon resolution of all preliminary matters, trial began on September 21, 2004. Together, the parties presented eighty four witnesses and tens of thousands of exhibits. The trial lasted nine months.

On February 4, 2004, our Circuit rendered a decision on an interlocutory appeal from this case. Defendants had appealed this Court’s decision denying summary judgment as to the Government’s claim for disgorgement under 18 U.S.C.1964(a). (Order # 550). In that opinion, written by Judge David Sentelle, the Court of Appeals determined that disgorgement is not a permissible remedy in civil RICO cases. United States of America v. Philip Morris USA Inc., et al., 396 F.3d 1190 (D.C.Cir.2005). As a result, because $280 billion in disgorgement was the centerpiece of its requested relief, the Government moved for leave to reformulate their proposed remedies. The Court granted that motion. After the liability phase of the trial concluded, the parties were allowed to put on *34 evidence pertaining to the remedies sought by the Government.

At the conclusion of the remedies trial, several entities and organizations moved to intervene in order to assert their interests in the proposed relief. The Court granted the Motions to Intervene for the following parties: American Cancer Society; American Heart Association; American Lung Association; Americans for Nonsmokers’ Rights; National African American Tobacco Prevention Network; and Tobacco-Free Kids Action Fund. These parties had a clear interest in advancing the public health and in the remedies proposed in this case.

In addition, the Court received numerous motions for leave to appear as amicus curiae, in support of the United States, from organizations who also wanted to assert their views on the appropriate and necessary remedies in this case. The Court granted the Motions of the following states and organizations because of their enormous collective knowledge and experience in the fields of public health, smoking, and disease: Arkansas; Connecticut; Hawaii; Idaho; Iowa; Kentucky; Louisiana; Maryland; Massachusetts; Nevada; New Jersey; New Mexico; New York; Ohio; Oklahoma; Oregon; Tennessee; Vermont; Washington; Wisconsin; Wyoming; and the District of Columbia.; Citizens’ Commission to Protect the Truth; Regents of the University of California; Tobacco Control Legal Consortium, including 18 additional nonprofit organizations; Essential Action; the City and County of San Francisco; the Asian Pacific Island American Health Forum; San Francisco African-American Tobacco Free Project; Black Network in Children’s Emotional Health. 7

On August 8, 2005, each side simultaneously submitted its 2,500 page Proposed Findings of Fact. As August turned into September, the Government filed its 250 page opening Post-trial brief; Defendants filed their 250 page opposition to the Government’s brief and their 50 page opening brief on affirmative defenses; the Government filed its 100 page reply brief and 50 page opposition to Defendants’ brief on affirmative defenses; and Defendants filed them 20 page reply brief on affirmative defenses.

The Court has issued 1010 Orders during the course of this arduous litigation. Some pundits have opined that this is the largest piece of civil litigation ever brought. The Court will leave that judgment to others.

FINDINGS OF FACT

III. CREATION, NATURE, AND OPERATION OF THE ENTERPRISE 8

The following Section sets forth in enormous detail the intricate, interlocking, and overlapping web of national and international organizations, committees, affiliations, conferences, research laboratories, funding mechanisms, and repositories for smoking and health information which Defendants established, staffed, and funded in order to accomplish the following goals: counter the growing scientific evidence that smoking causes cancer and other illnesses, avoid liability verdicts in the growing number of plaintiffs’ personal injury lawsuits against Defendants, and ensure *35 the future economic viability of the industry.

A. Pre-1953 Overview-The Rise in American Smoking and the Status of Scientific Research on Smoking and Health

1. Tobacco usage in North America dates as far back to at least the 1600s when Christopher Columbus came to America and observed Native Americans smoking tobacco leaves. By the end of the 1800s, scientists observed a noticeable rise in the incidence of cigarette smoking, as well as a noticeable rise in the number of cases of lung cancer. Samet TT, 9/29/04, 1027: 5-13.

2. Prior to 1900, lung cancer was virtually unknown as a cause of death in the United States. By 1935, there were an estimated 4000 lung cancer deaths annually, and by 1945 that figure had almost tripled. VXA1601844-2232 at 1986 (U.S. 64057); Brandt WD, 31:16-32:1. Annual per capita consumption of cigarettes in 1900 was approximately forty-nine; by 1930 that figure had grown to 1300; by 1950, annual per capita consumption had skyrocketed to over 3000 cigarettes. Brandt WD, 32:2-17; Samet TT, 9/29/04, 1031:13-1033:25.

3. By the 1920s, scientists were beginning to investigate the relationship between the concomitant rise in cigarette consumption and lung cancer, and to focus on the health consequences of smoking. Brandt WD, 32:2-17. Id. For example, as early as 1928, researchers conducting a large field study associated heavy smoking with cancer. 2060544267-4274 (U.S. 39010). In 1931, Frederick L. Hoffman, a well-known statistician for the Prudential Insurance Company, linked smoking with cancer. VXA2510202-0219 (U.S. 63597). In 1938, a population biologist and biome-trician from Johns Hopkins Medical School, Raymond Pearl, published one of the first significant statistical analyses of the health impact of smoking and concluded that individuals who smoked could expect shorter lives. 503285883-5884 (U.S. 20714). In the 1930s, chest surgeons Alton Oschner and Richard Overholt published observations that the patients they saw with advanced lung malignancies were typically smokers. 85868807-8823 at 8807 (U.S. 63596). By the end of the 1940s and early 1950s, far more evidence linking smoking to disease began to appear, ranging from the ground-breaking statistical studies of two eminent British statisticians, Bradford Hill and Sir Richard Doll, to the Graham and Wynder studies at Washington University, to animal research studies pointing to the carcinogenicity of cigarettes. 9

4.The mainstream media began to pay attention to the growing scientific literature and report on the scientists’ findings. For example, in 1953 Readers Digest, which was at the time one of the most popular publications in the country, published a series of articles titled “Cancer by the Carton” which relayed the scientific findings of Drs. Wynder and Graham. The magazine quoted one of the conclusions they reached in their American Cancer Society study which had been published in the American Medical Association’s Journal of May 27,1950 (“JAMA”), namely that “Excessive and prolonged use of tobacco, especially cigarettes, seems to be an important factor in the induction of bron-chiogenic carcinoma.” 03358234-8235 at 8235 (U.S. 46459). Such mainstream media publicity in popular magazines such as Time, Life, and Reader’s Digest triggered understandable public concern. Brandt WD, 48:1-18.

*36 5. In short, by 1953, there had been a very substantial rise in the annual per capita consumption of cigarettes and the number of deaths attributable to lung cancer; scientists were more and more convinced that a relationship existed between cigarette smoking and lung cancer; and the public was growing increasingly aware of and anxious about both developments.

B. Creation of the Enterprise

6. In December 1953, Paul M. Hahn, President of Defendant American, sent telegrams to the presidents of the seven other major tobacco companies and one tobacco growers organization, inviting them to meet and develop an industry response to counter the negative publicity generated by the studies linking cigarette smoking and lung cancer. The telegrams were sent to: Edward A. Darr, President of Defendant Reynolds; Benjamin F. Few, President of Defendant Liggett; William J. Halley, President of Defendant Loril-lard; Timothy V. Hartnett, President of Defendant B & W; O. Parker McComas, President of Defendant Philip Morris; Joseph F. Cullman, Jr., President of Benson & Hedges; J.B. Hutson, President of Tobacco Associates, Inc.; and J. Whitney Peterson, President of United States Tobacco Co. 508775416-5416 (JD 041939); HT0072119-2125 (U.S. 21175), (U.S. 54357); CTRBYL000001-0014 (U.S. 21138); MNAT00609882-9886 (U.S. 59809).

7. Executives from every tobacco company listed above, with the exception of Liggett, met in New York City at the Plaza Hotel on December 14, 1953. The executives discussed (I) the negative publicity from the recent articles in the media, (ii) responding to the problem by jointly engaging a public relations counsel, and (iii) removing health themes from advertising. They also discussed Liggett’s decision not to attend the meeting because “in the course of time the whole thing would blow over.” The executives also authorized the five members of the group who had their offices in New York to engage the services of Hill & Knowlton on behalf of the whole committee; to meet with John Hill at the Plaza Hotel the next day, December 15th, to discuss the negative publicity problem; and to request that Hill & Knowlton, if it accepted the assignment, submit recommendations to the full committee at a subsequent meeting as to how to proceed. 6802622262228 (U.S. 88165); HT0072119-2125 (U.S. 21175); CTRBYL000001-0014 (U.S. 21138); Brandt WD, 50:21-51:23. It is clear from all the surrounding circumstances that representatives of Hill & Knowlton had been contacted about taking on this assignment prior to December 14,1953.

8.The tobacco company executives did not meet, as they have suggested,in an altruistic response to requests from the scientific community that the industry fund research on smoking and health. Rather, they convened a strategy meeting of the highest company officials to formulate an industry-wide response (a) to the public’s growing anxiety generated by the negative publicity about the direction of scientific research on cigarettes and cancer, and (b) to what they accurately understood to be a major threat to their corporations’ economic future. While it is true that there was a recommendation “to do good science, independent science,” Brandt TT, 9/27/04, 740:15-17, the minutes of the meeting reveal that:

It was recommended that this [research] group undertake to enlist the cooperation of the National Institutes of Health of the U.S. Public Health Service in working out a program of scientific investigation through which the facts in the present controversy would be developed. This was considered highly advis *37 able in that it would give to the program an aspect of independence to the program to a degree not obtainable in any other way.

(no bates) (U.S. 88165 at 68026227).

9. At the December 14, 1953 meeting, Paul Hahn of American and Timothy Hart-nett of B & W told the other company presidents that

they had taken definite steps to remove the health themes from the advertising programs on Pall Mall and Viceroy. Darr [of Reynolds] made the point that he could not concur in sponsoring an industry paid advertising campaign (if this is the course recommended by the Public Relations Counsel) as long as the health theme continued to be featured by any one of the companies represented on the committee.

J. Whitney Peterson of United States Tobacco and Hartnett “expressed their agreement with Mr. Darr’s views in this matter.” Hill & Knowlton wanted to develop some understanding with the Defendants that

none is going to seek a competitive advantage by inferring to its public that its product is less risky than others. (No claims that special filters or toasting, or expert selection of tobacco, or extra length in the butt, or anything else, makes a given brand less likely to cause you-know-what. No “Play-Safe-with-Luekies.)”

TLT0901532-1540 at 1539-1540 (U.S. 87224) (emphasis in original); 680262226-2228 (U.S. 88165); TLT0900422-0430 at 0423 (U.S. 88169); TLT0901564-1572 at 1565 (U.S. 88194); TLT0901541-1545 at 1543 (U.S. 87225); 2048375960-5964 (U.S. 85819); JH000493-0501 at 0500-0501 (U.S. 21179).

10. At the December 15, 1953 meeting, the participants were Paul Hahn of American, O. Parker McComas of Philip Morris, Joseph Cullman, Jr. of Benson & Hedges, J. Whitney Peterson of United States Tobacco, and representatives from Hill & Knowlton, including John Hill and Bert Goss. Hill & Knowlton was told that the industry viewed the “problem [posed by the scientific studies] as being extremely serious and worthy of drastic action.” JH000502-0506 at 0504 (U.S. 20191); TLT0901541-1545 at 1543 (U.S. 87225). According to a Hill & Knowlton memo dated December 22, 1953, the public relations firm was asked to

develop suggestions for dealing with the public relations problem confronting the industry as a result of widely publicized assertions by a few medical research men regarding the link between cigarette smoking and lung cancer.

TLT0901552-1552 (U.S. 88192).

11.In an internal planning memoran-da, Hill & Knowlton assessed their tobacco clients’ problems in the following manner:

There is only one problem' — confidence, and how to establish it; public assurance, and how to create it — in a perhaps long interim when scientific doubts must remain. And, most important, how to free millions of Americans from the guilty fear that is going to arise deep in their biological depths — regardless of any pooh-poohing logic — every time they light a cigarette. No resort to mere logic ever cured panic yet, whether on Madison Avenue, Main Street, or in a psychologist’s office. And no mere recitation of arguments pro, or ignoring of arguments con, or careful balancing of the two together, is going to deal with such fear now. That, gentlemen, is the nature of the unexampled challenge to this office.

JH000493-0501 (U.S. . 21408); TLT0901532-1540 at 1534 (U.S. 87224); Brandt WD, 53:16-54:10.

*38 12. Ten days later, on December 24, 1953, Hill & Knowlton submitted a proposal regarding the tobacco industry’s public relations campaign, recommending that the companies form a joint industry research committee that would sponsor independent scientific research on the health effects of smoking and announce the formation of the research committee nationwide as news and in advertisements. Hill & Knowlton also recommended that the companies fund objective research by scientists who were independent of the tobacco industry, and that an advisory board be established composed of a group of distinguished scientists from the fields of medicine, research and education “whose integrity is beyond question.” 01138856-8864 (JE 20036); TLT0900422-0430 (U.S. 88169); TLT0901564-1572 (U.S. 88194); see also TLT0901546-1549 (U.S. 88191); TLT0901552 (U.S. 88192).

13. In its proposal, Hill & Knowlton expressed its concern about the “health” claims being made in the Defendants’ advertising:

[I]t is impossible to overlook the fact that some of the industry’s advertising has come in for serious public criticism because of emphasis on health aspects of smoking ... it must be recognized that some of the advertising may have created a degree of skepticism in the public mind which at the start at least could affect the believability of any public relations effort.

In fact, one of the questions posed by Hill & Knowlton to the Defendants was-

whether the companies considered] that their own advertising and competitive practices have been a principal factor in creating a health problem? The companies voluntarily admitted this to be the case even before the question was asked. They have informally talked over the problem and will try to do something about it.

680262226-2228 (U.S. 88165); TLT0900422-0430 at 0423 (U.S. 88169); TLT0901564-1572 at 1565 (U.S. 88194); TLT0901541-1545 at 1543 (U.S. 87225); 2048375960-5964 (U.S. 85819).

14.Four days later, on December 28, 1953, another meeting was held at the Plaza Hotel and was attended by Paul Hahn of American; Edward Darr of Reynolds; Herbert A. Kent, Chairman of Loril-lard; Timothy Hartnett of B & W; O. Parker McComas of Philip Morris; Joseph Cullman of Benson & Hedges; J.B. Hut-son, President of Tobacco Associates, Inc.; J. Whitney Peterson of United States Tobacco; and three people from the public relations firm of Hill & Knowlton, John Hill, Bert Goss, and Richard Darrow. The attendees agreed on Tobacco Industry Research Committee (“TIRC”) as the official name of the research committee; chose Paul Hahn as temporary chairman of the committee; agreed that the search should begin immediately for a qualified director who, together with the companies’ research directors, would recommend members for the research advisory board; and reviewed and accepted the Hill & Knowl-ton proposal regarding the tobacco industry’s public relations campaign. TLT0901411-1414 (U.S. 88188); 01138856-8864 (JE 20036). ■ The attendees also agreed on a mission statement for the new organization which stated that its “purposes and objectives” were

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer, and to make available to the public factual information on this subject.

(no bates) (JD 000294 at 70103757). Hill & Knowlton played a major role in creating, refining, and implementing the strate *39 gies adopted by the participants at the December meetings.

15. Although Defendant Liggett did subsequently participate in Enterprise activities, Liggett did not participate in the December meetings because, at the time, the company believed that “the proper procedure is to ignore the whole controversy.” JH000502-0506 at 0502 (U.S. 20191); TLT0901541-1545. at 1541 (U.S. 87225).

16. Following Hill & Knowlton’s advice, the formation and purpose of TIRC was announced on January 4, 1954, in a full-page advertisement called “A Frank Statement to Cigarette Smokers” published in 448 newspapers throughout the United States. All sponsoring cigarette manufacturers and other tobacco industry entities were clearly identified. McAllister PD, United States v. Philip Morris, 5/23/02, 112:14-114:13; McAllister WD, 9:10-22; 11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418); USX6390001-0400 at 0004 (U.S. 89555); TLT0900465-0465 (U.S. 88171); see also TLT0900478-0480 (U.S. 88440); TLT0900481-0483 (U.S. 88441).

17. The Frank Statement was subscribed to by the following domestic cigarette and tobacco product manufacturers, organizations of leaf tobacco growers, and tobacco warehouse associations that made up TIRC: Defendant American by Paul Hahn, President; Defendant B & W by Timothy Hartnett, President; Defendant Lorillard by Herbert Kent, Chairman; Defendant Philip Morris by O. Parker McCo-mas, President; Defendant Reynolds by Edward A. Darr, President; Benson & Hedges by Joseph Cullman, Jr., President; Bright Belt Warehouse Association by F.S. Royster, President; Burley Auction-Warehouse Association by Albert Clay, President; Burley Tobacco Growers Cooperative Association by John Jones, President; Larus & Brother Company, Inc. by W.T. Reed, Jr., President; Maryland Tobacco Growers Association by Samuel Linton, General Manager; Stephano Brothers, Inc. by C.S. Stephano, Director of Research; Tobacco Associates, Inc. by J.B. Hutson, President; and United States Tobacco by J. Whitney Peterson, President. 113098179817 (U.S. 20277); 86017454-7454 (U.S. 21418); HT0072119-2125 (U.S. 21175); CTRBYL0000010014 (U.S. 21138).

18. The Frank Statement set forth the industry’s “open question” position that it would maintain for more than forty years — that cigarette smoking was not a proven cause of lung cancer; that cigarettes were not injurious to health; and that more research on smoking and health issues was needed. In the Frank Statement, the participating companies accepted “an interest in people’s health as a basic responsibility, paramount to every other consideration in our business” and pledged “aid and assistance to the research effort into all phases of tobacco use and health.” The companies promised that they would fulfill the obligations they had undertaken in the Frank Statement by funding independent research through TIRC, free from any industry influence. 11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418).

19. The “Frank Statement” in its entirety stated as follows:

RECENT REPORTS on experiments with mice have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings.

Although conducted by doctors of professional standing, these experiments are not regarded as conclusive in the field of cancer research. However, we do not believe that any serious medical research, even though its results are inconclusive should be disregarded or lightly dismissed.

*40 At the same time, we feel it is in the public interest to call attention to the fact that eminent doctors and research scientists have publicly questioned the claimed significance of these experiments.

Distinguished authorities point out:

1. That medical research of recent years indicates many possible causes of lung cancer.

2. That there is no agreement among the authorities regarding what the cause is.

3. That there is no proof that cigarette smoking is one of the causes.

4. That statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modern life. Indeed the validity of the statistics themselves is questioned by numerous scientists.

We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business.

We believe the products we make are not injurious to health.

We always have and always will cooperate closely with those whose task it is to safeguard the public health.

For more than 300 years tobacco has given solace, relaxation, and enjoyment to mankind. At one time or another during these years critics have held it responsible for practically every disease of the human body. One by one these charges have been abandoned for lack of evidence.

Regardless of the record of the past, the fact that cigarette smoking today should even be suspected as a cause of disease is a matter of deep concern to us.

Many people have asked us what are we going to do to meet the public’s concern aroused by the recent reports. Here is the answer:

1. We are pledging aid and assistance to the research effort into all phases of tobacco use and health. This joint financial aid will of course be in addition to what is already being contributed by individual companies.

2. For this purpose we are establishing a joint industry group consisting initially of the undersigned. This group will be known as TOBACCO INDUSTRY RESEARCH COMMITTEE [“TIRC”].

3. In charge of the research activities of the Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board of scientists disinterested in the cigarette industry. A group of distinguished men [sic] from medicine, science, and education will be invited to serve on this Board. These scientists will advise the Committee on its research activities.

This statement is being issued because we believe the people are entitled to know where we stand on this matter and what we intend to do about it.

11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418); TLT0901611-1611 (U.S. 88196); Brandt WD, 55:8-21.

20. The issuance of the “Frank Statement to Cigarette Smokers,” was an effective public relations step. By promising the public that the industry was absolutely committed to its good health, the Frank Statement allayed the public’s concerns about smoking and health, reassured smokers, and provided them with an effective rationale for continuing to smoke. Brandt WD, 54:20-55:7; JH000493-0501 (U.S. 21179), (U.S. 21408); TLT0901532-1540 at 1534 (U.S. 87224).

*41 C. TIRC/CTR - Tobacco Industry Research Committee/Council for Tobacco Research-USA

21. With the creation of TIRC in January 1954, the Defendants established a sophisticated public relations vehicle— based on the premise of conducting independent scientific research — to deny the harms of smoking and reassure the public. That essential strand of their long-range strategy was developed and implemented in 1953-54, and guided their activities for more than forty years. Brandt WD, 61:23-62:7.

22. In response to an inquiry by Stanley Barnes, Assistant Attorney General, United States Department of Justice on January 21, 1954, TIRC Chairman Paul Hahn sent a letter to Barnes dated January 26, 1954, enclosing a statement of the origin, purpose, and proposed functions of TIRC. The purposes and objectives of TIRC as recorded in the Statement Concerning the Origin and Purpose of TIRC were

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer, and to make available to the public factual information on this subject.

508775382-5382 (JD 090191); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181); McAllis-ter WD, 28:14-29:1; Zahn PD, Cipollone v. Liggett, 12/16/86, 51:24-52:6, 53:9-12 at 0005-0007 (U.S. 89555).

23. The statement of origin and purpose was signed in the name of TIRC by Chairman Paul Hahn, was ratified and adopted by TIRC, and attached as Exhibit A to the Bylaws of the Tobacco Industry Research Committee. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175), (U.S. 54357); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181). All of the bylaws could be altered and repealed by a majority vote of TIRC’s corporate members, except “Article I. Purposes and Objectives” which could only be altered with the unanimous consent of all the corporate members. CW00787817-7842 at 7817, 7822 (U.S. 21420); CTRBYL000001-0014 at 0001, 0006 (U.S. 21138).

24. The statement of origin and purpose stated that TIRC had engaged the public relations firm of Hill & Knowlton to assist TIRC in effectuating its purpose. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181); TLT0900723-0728 (U.S. 88179); see also USX6390001-0400 at 0012 (U.S. 89555).

25. The TIRC bylaws stated that each corporate member of the TIRC “shall from time to time appoint an individual to serve as the personal member of the Committee representing such corporate member” and that a majority of the personal members of TIRC would select such officers, agents, and employees as they deemed necessary, including a Chairman to serve for a term of one year and until his successor is elected and qualified. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138).

26. The first officers selected by TIRC members were: Paul Hahn of American as temporary Chairman; J. Whitney Peter *42 son of United States Tobacco as Vice Chairman; Joseph Cullman of Benson & Hedges as Treasurer; and Wilson Thomas (“W.T.”) Hoyt of Hill & Knowlton as Secretary. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181).

27. TIRC bylaws described the method of funding TIRC as follows:

Each of the cigarette manufacturing corporate members has pledged to the Committee for payment before or during 1954 an amount equal to 1/4 of a cent for each one thousand of tax-paid cigarettes produced by such company in 1953 as estimated by Harry M. Wootten and published under the date of January 15, 1954, and has pledged to the Committee for payment during 1954 an additional amount equal to one-half of the amount originally pledged.

CW00787817-7842 at 7819 (U.S. 21420); CTRBYL000001-0014 at 0003 (U.S. 21138).

28. At its January 29, 1964 meeting, the TIRC Executive Committee agreed to change the name of the organization to the Council for Tobacco Research-U.S.A. (“CTR”). 93218985-8986 (U.S. 21116). The organization bylaws were amended February 1, 1964, to reflect the name change. Although the name changed, the purposes, objectives, and functions of the organization did not. According to the amended bylaws, the purposes and objectives of CTR remained the same, i.e.

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer and to make available to the public factual information on this subject.

682631364-1368 (U.S. 21024); CW00787817-7842 at 7831-7835 (U.S. 21420); see also USX63900010400 at 0002 (CTR Response to Request for Admission No. 82). Timothy Hartnett announced the organization name change in a March 1964 press release. 508775085-5088 (U.S. 20815); HK1865014-5017 (U.S. 77847).

29. Robert Heimann, Chairman and Chief Executive Officer of American, commented upon the TIRC’s name change in a December 6, 1977 letter to Addison Yea-man, CTR’s Chairman and President and formerly the General Counsel of B & W:

[W]e decided some years ago to rename T.I.R.C. “The Council for Tobacco Research” because “Tobacco Industry Research Committee” sounded too much like industry-directed, as distinct from independent, research.

2022200158-0160 at 0160 (U.S. 87532).

30. In 1971, CTR changed from an unincorporated association to a corporation pursuant to the laws of the State of New York. CTR’s Certificate of Incorporation was filed with the Department of State of the State of New York on January 8, 1971. The bylaws of the newly-formed corporation were adopted at the first meeting of CTR’s Board of Directors on January 13, 1971. CTRMIN-BD000001-0303 at 0002 (JD 093208); CTRINC000001-0019 (JD 090053); McAllister WD, 10:7-14.

31. Following incorporation, CTR was divided into two classes of members, Class A and Class B. Class A members were: (1) designated by the Board of Directors; (2) domestic persons who sold cigarettes in the United States; and (3) manufacturers of their own brand of cigarettes. Class A members included American Tobacco, B & W, Lorillard, Philip Morris, Reynolds, and United States Tobacco. Class B members were: (1) designated by the Board of Directors; and (2) a person, corporation, as *43 sociation, or partnership not eligible for Class A membership but involved in the production, manufacturing, and distribution of cigarettes. Class B members included Bright Belt Warehouse Association, Burley Auction Warehouse Association, Burley Tobacco Growers, Imperial Tobacco, Tobacco Associates, and United States Tobacco. CTRBYL000031-0049 (JD 090055); CTRMIN-BD000001-0303 at 0003 (JD 093208); 512678857-8863 (U.S. 30046).

32. In 1963, Clarence Cook Little and W.T. Hoyt invited Liggett to join TIRC in order to secure complete industry cooperation in dealing with the 1963 Surgeon General’s Advisory Committee. Liggett declined the invitation but, in its response, assured its cooperation: “[T]he aims of all of us are the same and the path that we [Liggett] have followed has been similar to that of the Committee in may respects.” RC6007182-7183 (LI 142).

33. Liggett became a member of CTR in 1964 and resigned in 1968, but continued to participate in CTR activities for decades. In its January 1968 resignation letter, Liggett’s President stated “we will continue to participate in defraying the cost of [CTR] Special Projects sponsored by the Council after evaluation of each Project on an individual basis.” CTR-TIRC-MIN000238-0244 at 0241 (U.S. 33023). Liggett made contributions to CTR’s Special Projects fund from 1966 through 1975 and to CTR’s Literature Retrieval Division from 1971 through 1983. DXA0630917-1033 at 1024-1025 (U.S. 75927). Liggett was also asked to attend scientific meetings at CTR. 044227839-7842 (U.S. 20066); LWDOJ9055586-5587 (U.S. 26007) (Confidential).

34. Representatives of Liggett attended CTR meetings at which CTR Class A members, CTR Class B members, CTR officers, CTR public relations counsel, tobacco industry attorneys, and other representatives of cigarette manufacturers and the Tobacco Institute were present. CTRMIN-MOM000001-0015 (U.S. 21145); CTRMIN-MOM000053-0069 (U.S. 32617).

35. Although Defendant BATCo was not a member of TIRC or CTR, communication and contact between high level smoking and health research scientists at BATCo and scientists at TIRC/CTR was frequent and direct. BATCo scientists, including David G. Felton, Lionel C.F. Blackman, and R.E. Thornton, visited TIRC/CTR several times over the years. TINY0003106-3116 (U.S. 21369); 105408490-8499 (U.S. 21135); 517002090-2091 (U.S. 66527).

36. For example, in 1958, three British scientists, D.G.I. (David) Felton of BATCo, W.W. Reid of BATCo-Australia, and H.R. (Herbert) Bentley of Imperial Tobacco, visited the United States for four weeks and met with members of TIRC’s Scientific Advisory Board, as well as with representatives of Defendants TIRC/CTR, American, Liggett, and Philip Morris. TINY00031063116 (U.S. 21369); 105408490-8499 (U.S. 21135), (U.S. 76169); Brandt WD, 94:8-95:3.

37. In October 1979, David Felton of BATCo went on a month-long “fact-finding mission to a number of laboratories engaged in research relating to smoking and health” in the United States. Felton was accompanied by two lawyers for most of his visits, either Patrick Sirridge of Shook, Hardy & Bacon or Timothy Finnegan of Jacob & Medinger. Near the end of the trip, Felton met with CTR executives and employees, including Addison Yeaman, CTR President; William Gardner, CTR Scientific Director; W.T. Hoyt, CTR Executive Vice President; Robert Hockett, CTR Research Director; Vincent Lisanti, CTR Associate Research Director; and David Stone and Donald Ford, members of *44 CTR’s scientific staff. Discussions included CTR contract research, nitrosamines, smoking and stress, and nicotine research. During his visit, Felton also met with Tobacco Institute representatives Horace Kornegay, President, and Marvin Kastenb-aum, Director of Statistics. 109879229-9295 (U.S. 34923); 109879296-9308 (U.S. 86063).

38. Defendants met frequently to discuss issues facing the Enterprise. Beginning in 1954 and until 1970, representatives of member companies met regularly with TIRC/CTR staff. After CTR’s incorporation, in 1971 and until 1999, the Enterprise met annually at CTR’s meetings of members. At these meetings, representatives of the Enterprise discussed activities of CTR which furthered their goals such as Special Projects, the Literature Retrieval Division, contract research, public relations, the TIRC/CTR Scientific Advisory Board, and scientific conferences. CTR-TIRCMIN000001-0252 (JD 093292); CTR-TIRC-MIN000033-0052 (U.S. 33006); CTRTIRC-MIN000174-0186 (U.S. 33016); CTR-TIRC-MIN000224-0231 (U.S. 33021); CTRTIRC-MIN00023-0244 (U.S. 33023); CTR-TIRC-MIN000245-0255 (U.S. 33024); 1002608337-8339 (U.S. 85989); MM0010053-0056 (U.S. 85990); CTRMIN-MOM000001-000015 (U.S. 21145); CTRMIN-MOM000016-0034 (U.S. 21170); CTRMIN-MOM000035-0052 (U.S. 32616); CTRMIN-MOM000053-0069 (U.S. 32617); CTRMIN-MOM000070-0087 (U.S. 32618); CTRMIN-MOM000088-0089 (U.S. 32619); CTRMIN-MOM000090-0104 (U.S. 32620); CTRMIN-MOM000105-0117 (U.S. 32621); CTRMIN-MOM000129-0142 (U.S. 32623); CTRMIN-MOM000143-0154 (U.S. 32624); CTRMIN-MOM000155-0167 (U.S. 32625); CTRMIN-MOM000168-0181 (U.S. 32626); CTRMIN-MOM000182-0195 (U.S. 32627); CTRMIN-MOM000210-0221 (U.S. 32629); CTRMIN-MOM000222-0233 (U.S. 32630); CTRMIN-MOM000234-0244 (U.S. 32631); CTRMIN-MOM000245-0255 (U.S. 32632); CTRMIN-MOM000256-0268 (U.S. 32633); CTRMIN-MOM000269-0280 (U.S. 32634); CTRMIN-MOM000281-0294 (U.S. 32635); CTRMIN-MOM000295-0306 (U.S. 32636); CTRMIN-MOM000307-0318 (U.S. 32637); CTRMIN-MOM000319-0331 (U.S. 32638); CTRMIN-MOM000332-0334 (Ex. 32639); 70000261-0274 (U.S. 31078); 70005388-5408 (U.S. 31104); CW00800809-0811 (U.S. 31368); TLT0901390-1393 (U.S. 88186); TLT0901400-1410 (U.S. 88187); JH000395-0400 (U.S. 21178); TLT0901411-1414 (U.S. 88188).

39. Members of the Enterprise also convened regularly between 1971 and 1998 at CTR’s Board of Directors meetings. CTR’s Board of Directors was made up of representatives from the member companies. At these meetings the CTR Board of Directors discussed and passed resolutions regarding issues such as CTR’s budget, the status of grants and contract research, the election of officers, payment of dues, and amendments to the bylaws. In addition to Board members, attendees at the meetings included other corporate offices and executives from the tobacco companies, Defendants’ legal counsel and public relations counsel, and representatives from the Tobacco Institute. CTRMIN-BD000017-0020 (U.S. BD000021-0025 (U.S. BD000026-0029 (U.S. BD000030-0034 (U.S. BD000035-0038 (U.S. BD000039-0044 (U.S. BD000045-0049 (U.S. BD000050-0054 (U.S. BD000055-0059 (U.S. BD000060-0109 (U.S. BD000110-0115 (U.S. BD000116-0121 (U.S. BD000122-0125 (U.S. BD000126-0129 (U.S. 32572); CTRMIN-32573); CTRMIN-32574); CTRMIN-32575); CTRMIN-32576); CTRMIN-32577); CTRMIN-32578); CTRMIN-32579); CTRMIN-32580); CTRMIN-32581); CTRMIN-32582); CTRMIN-32583); CTRMIN-32584); CTRMIN-32585); CTRMIN- *45 BD000135-0135 (U.S. 32586); CTRMIN-BD000136-0140 (U.S. 32587); CTRMIN-BD000141-0144 (U.S. 32588); CTRMIN-BD000145-0146 (U.S. 32589); CTRMIN-BD000147-0152 (U.S. 32590); CTRMIN-BD000153-0157 (U.S. 32591); CTRMIN-BD000158-0162 (U.S. 32592); CTRMIN-BD000163-0165 (U.S. 32593); CTRMIN-BD000172-0178 (U.S. 32595); CTRMIN-BD000179-0182 (U.S. 32596); CTRMIN-BD000187-0191 (U.S. 32597); CTRMIN-BD000192-0194 (U.S. 32598); CTRMIN-BD000200-0229 (U.S. 32600); CTRMIN-BD000230-0235 (U.S. 32601); CTRMIN-BD000236-0237 (U.S. 32602); CTRMIN-BD000238-0245 (U.S. 32603); CTRMIN-BD000246-0247 (U.S. 32604); CTRMIN-BD000248-0251 (U.S. 32605); CTRMIN-BD000252-0255 (U.S. 32606); CTRMIN-BD000256-0260 (U.S. 32607); CTRMIN-BD000261-0262 (U.S. 32608); CTRMIN-BD000263-0267 (U.S. 32609); CTRMIN-BD000268-0270 (U.S. 32610); CTRMIN-BD000271-0275 (U.S. 32611); CTRMIN-BD000276-0277 (U.S. 32612); CTRMIN-BD000278-0283 (U.S. 32613); CTRMIN-BD000284-0285 (U.S. 32614); CTRMIN-BD000286-0291 (U.S. 32615); 70000636-0638 (JE 31084); 70000275-0279 (U.S. 31080); 70001297-1298 (U.S. 31095); 70005382-5387 (JE 31103); 70005409-5416 (JE 31106); CTRMIN-BD000001-000303 (JD 093208); ARU1130828-0904 (U.S. 86773); Kornegay PD, Cipollone v. Liggett, 8/17/84,195:21-196:7.

40. While Philip Morris Companies was not a Class A member of CTR, Philip Morris Companies executives attended and participated in meetings of the CTR Board of Directors from 1985 to 1992. These executives included Thomas Ahrensfeld, Senior Vice President and General Counsel; Murray Bring, Senior Vice President and General Counsel; Hugh Cullman, Vice Chairman of the Board; Alexander Holtz-man, Vice President and Associate General Counsel; John Murphy, President and CEO; and R. William Murray, President, CEO, and Vice Chairman of the Board. CTRMIN-BD000001-000303 at 0187, 0192, 0195, 0200, 0230, 0236, 0238, 0246, 0248, 0252, 0256, 0261, 0263, 0268 (JD 093208).

41. Lorraine Pollice, CTR Corporate Secretary and Treasurer for over twenty years, attended CTR Board of Directors Meetings and CTR Annual Member Meetings, and personally prepared minutes of those meetings. Pollice WD, 6:14-7:22; 7:23-12:12. Although the minutes of meeting after meeting show participation by Altria representatives, Pollice expressed confusion and uncertainty about the precise corporate affiliation of particular participants. See, e.g., CTRMINBD000187-0191 (U.S. 32597); CTRMIN-BD000200-0229 (U.S. 32600); CTRMIN-BD000230-0235 (U.S. 32601); CTRMIN-BD000236-0237 (U.S. 32602); CTRMIN-BD000238-0245 (U.S. 32603); CTRMIN-BD000246-0247 (U.S. 32604); CTRMIN-BD000248-0251 (U.S. 32605); CTRMINBD000252-0255 (U.S. 32606); CTRMIN-BD000256-0260 (U.S. 32607); CTRMIN-BD000261-0262 (U.S. 32608); CTRMIN-BD000263-0267 (U.S. 32609); CTRMIN-BD000268-0270 (U.S. 32610); CTRMIN-MGM000222-0233 (U.S. 32630); CTRMIN-MOM000234-0244 (U.S. 32631); CTRMINMOM000245-0255 (U.S. 32632); CTRMIN-MOM000256-0268 (U.S. 32633); CTRMINMOM000269-0280 (U.S. 32634); CTRMIN-MOM000281-0294 (U.S. 32635); CTRMINMOM000295-0306 (U.S. 32636); CTRMIN-MOM000307-0318 (U.S. 32637). Her testimony is simply not credible since it was directly contrary to the documents themselves, which were never corrected by Pollice herself or by former CTR presidents or by outside counsel for CTR who reviewed and finalized the minutes. Pol-lice WD, 6:1-25; Pollice TT, 10/04/04, 01526:22-01527:14; Pollice TT, 10/04/04, 01528:19-01529:1.

*46 42. From 1954 through October 31, 1999, payments to CTR’s General Fund from Defendants totaled $473,369,512.22; $31,928,239.26 from American; $67,666,080.25 from B & W; $40,747,457.89 from Lorillard; $189,506,678.86 from Philip Morris; $141,890,169.04 from Reynolds; and $721,868.85 from Liggett. DXA0630917-1033 at 1017-1023 (U.S. 75927); USX6390001-0400 at 0008 (U.S. 89555).

43. From 1966 through October 31, 1990, payments to CTR’s Special Projects fund (discussed at Section 111(E)(2), infra) totaled $18,270,623.65, which included: $29,665.00 from American; $2,571,345.40 from B & W; $144,254.75 from Liggett; $1,638,490.68 from Lorillard; $5,837,923.49 from Philip Morris; and $6,029,255.33 from Reynolds. DXA0630917-1033 at 1024 (U.S. 75927) (CTR Response to First Set of Interrogatories, Schedule C).

44.From 1971 through April 15, 1983, payments to CTR’s Literature Retrieval Division (discussed at Section III(G), infra ) totaled $16,870,480.00, which included: $2,214,135.00 from American; $2,681,358.00 from B & W; $606,043.50 from Liggett; $811,840.50 from Lorillard; $4,813,415.50 from Philip Morris; and $5,743,687.50 from Reynolds. DXA0630917-1033 at 1025 (U.S. 75927) (CTR Response to First Set of Interrogatories, Schedule C).

1. Selection and Approval of TIRC’s Scientific Advisory Board Members and Scientific Director

45.The first formal meeting of TIRC was held on January 18, 1954. At this first formal meeting, a budget of $1,200,000 was approved; an agreement between TIRC and Hill & Knowlton was approved; the research program, calling for a Scientific Director and a Scientific Advisory Board (“SAB”) was approved; a Law Committee was appointed; and the research directors of TIRC member companies were designated as the Industry Technical Committee (“ITC”) (discussed further at Section 111(F)(2), infra). CTR-TIRC-MIN000001-000252 at 0001-0004, 0018-0032 (JD 093292); ARU1130828-0904 (U.S. 86773); TLT0901400-1410 (U.S. 88187); JH000395-0400 (U.S. 21178).

46. The Law Committee was composed of Chairman George Whiteside of Chad-bourne, Parke, Whiteside, Wolf & Brophy; John Vance Hewitt of Conboy, Hewitt, O’Brien & Boardman; Leighton Coleman of Davis, Polk, Wardwell, Sunderland & Kiendl; F.R. Wadlinger of Foulk, Porter & Wadlinger; and Freeman Daniels of Perkins, Daniels & Perkins. This committee drafted the TIRC bylaws. CTR-TIRC-MIN000001-000252 at 0001, 0006, 0021 (JD 093292); CTRMN039046-9106 at 9069 (JD 092825).

47. On January 7, 1954, the ITC held an informal meeting at which its members discussed qualifications for a Scientific Research Director for TIRC and efforts to find and retain a suitable scientist. The research directors were H.R. Hanmer of American; Irwin W. Tucker of B & W; H.B. Parmele of Lorillard; Robert N. Du-Puis of Philip Morris; Grant Clarke of Reynolds; Hugh Cullman of Benson & Hedges; Clinton Baber of Larus & Brother; C.S. Stephano of Stephano Brothers; and Ward B. Bennett of United States Tobacco. CTRMN039046-9106 at 9070, 9076 (JD 092825); TLT0901400-1410 (U.S. 88187); CTRMIN-ITC000009-0011 (JD 095519); JH000395-0400 (U.S. 21178).

48. At the January 7,1954 meeting, the ITC members agreed that the TIRC Research Director should be a medical doctor, recognized in cancer research, and with experience in chemistry. The ITC nominated persons for the position of TIRC Research Director, and a subcom *47 mittee of the ITC, headed by Grant Clarke, Research Director for Reynolds, was appointed to process and screen the list of nominees. TLT0901400-1410 at 1404 (U.S. 88187); JH000395-0400 at 0399 (U.S. 21178).

49. At the March 15, 1954 meeting of TIRC, Chairman Paul Hahn of American, outlined the difficulties encountered in obtaining a Scientific Research Director, and suggested that SAB members be appointed before the Research Director so that they could then assist in selecting a Research Director. TLT0902041-2064 at 2043 (U.S. 88360). The ITC was directed to draw up a suggested list of names for the SAB with the assistance of Hill & Knowlton. TIRC appointed a subcommittee to select scientists to be invited to become members of SAB. CTR-TIRC-MIN000001-000252 at 0005-0006 (JD 093292); TLT0903093-3094 (U.S. 88363); USX6390001-0400 at 0011-0012 (U.S. 89555) (CTR Response to Request for Admission No. Ill); ARU1130828-0904 at 0884-0890 (U.S. 86773) (CTR Response to Interrogatory No. 12).

50. The ITC, public relations counsel Hill & Knowlton, and the Law Committee were actively involved in searching for, interviewing, and selecting the scientists appointed to the first SAB. TLT0902041-2064 at 2043 (U.S. 88360); TLT0903093-3094 (U.S. 88363). The ITC screened the candidates being considered for membership on the SAB. 681879254-9715 at 9649 (U.S. 21020).

51. Letters were sent to nine scientists inviting them to become members of the SAB, and acceptances were eventually obtained from seven. Their specialities included pathology, pharmacology, surgery, and statistics. The two scientists who did not accept were connected with the National Cancer Institute and believed that, as government employees, they should not, as a matter of policy, accept the invitation. CTR-TIRC-MIN000001-0252 at 0021 (JD 093292); CTRMN039046-9106 at 9051-9052 (JD 092825); 508775311-5311 (JD 093893); ARU11308280904 (U.S. 86773).

52. The first meeting of the SAB was held on April 26,1954. The SAB members chose as their Chairman, Clarence Cook Little, a well-known cancer researcher and geneticist of high integrity and national repute. At the second meeting of the SAB, Little was selected as Scientific Director on a part-time basis with an assistant who would serve on a full-time basis. In November 1954, Robert Hockett was chosen as Associate Scientific Director. Little served as SAB Chairman from 1954 to 1957 and as TIRC/CTR Scientific Director from 1954 to 1971. Little PD, La-rtigue v. Reynolds, 10/5/60, 2713:20-21, 2715:4-12, 2721:9-11; Little PT, Zagurski v. American, 6/7/67, 652:21-653:2, 676:6-18. Following Little, the Scientific Directors were William Gardner (1973-1981), Sheldon Sommers (1981-1987), James Glenn (1988-1990), and Harmon McAllister (1991-1999). CTR-TIRC-MIN000001-0252 at 0022 (JD 093292); TLT0902041-2064 (U.S. 88360); TLT0903105-3108 at 3105 (U.S. 88366); ARU1130828-0904 (U.S. 86773); CTRMN004928-4929 (U.S. 85995); 11310050-0053 (JD 090066).

53. In a November 27, 1963 memorandum, Clarence Cook Little described the Enterprise’s criteria for selecting the SAB members. Little wrote:

In the selection of a Scientific Advisory Board and in the acceptance of the nomination by that Board of a Scientific Director, it was clearly shown that the attitude of the TIRC was to pick scientists interested broadly in the origin and nature of the diseases implicated and in the evaluation of smoking as a possible factor, not as a proven one.

*48 70003601-3602 at 2601 (U.S. 85993) (emphasis in original).

54. Clarence Cook Little’s personal commitments and assumptions about cancer causality made him an ideal proponent of the industry’s goal of maintaining a “controversy” rather than scientifically resolving the questions regarding smoking and health. Brandt WD, 86:10-18. Little explained at the press conference announcing his appointment that: “I am ultraconservative about cause and effect relationships.” CW01054843^879 at 4877 (U.S. 20278). However, at that same press conference, Little made many claims about the health benefits of cigarette use:

It is very well-known, for example, that tobacco has relaxed a great many people. It is a very good therapy for a great many nervous people.

CW01054843-4879 at 4845 (U.S. 20278).

55. Little repeatedly centered attention on the so-called “constitutional hypothesis”; other environmental risks; and the need for more research into the basic etiology of the diseases associated with smoking. Brandt WD, 86:19-22; McAllister WD, 123:18-22; Little PT, Zagurski v. American, 6/7/67, 661:9-663:9, 665:7-666:20. He believed that “the causation of lung cancer was not known,” that it was a complicated and unsolved problem with many factors involved, such as nutrition, heredity, the mental type of the individual, present or former or existing infection, air pollution, and radiation. This statement of his beliefs became known as the “constitutional hypothesis.” Little PD, Lartigue v. Reynolds, 10/5/60, 2729:1-2730:15, 2735:11-2736:2; CTRMN005534-5541 (U.S. 21156); (no bates) (U.S. 21224); (no bates) (U.S. 21233); (no bates) (U.S. 21834). He argued that “no positive evidence has been advanced by anybody who believes in the tobacco guilt theory that has made me change my mind.” Little PD, Lartigue v. Reynolds, 10/5/60, 2782:10-16. Under Little’s leadership, the SAB funded studies on vitamins, influenza, twins, and viruses, but not on carcinogenic agents in tobacco smoke because: “we believe that no such agents have been found which are carcinogenic to men,” id. at 2755:6-18; “[w]e don’t believe they are there and a will-of-the-wisp hunt for something that hasn’t yet been shown is a waste of money,” id. at 2761:14-22; “[t]here are no carcinogenic agents in tobacco tar that have been proven to cause cancer in man.... And I say again that to transfer from the skin of a mouse to the lung of a man is not science,” id. at 2762:23-2763:13.

56.The SAB met regularly from 1954 until at least 1997 to review, approve, and renew grant applications and contracts. Those who attended the SAB meetings, in addition to SAB members, were the ITC Chairman, TIRC/CTR staff members, public relations counsel for TIRC/CTR, and (at times) Defendants’ attorneys and scientific guests. Zahn PD, Cipollone v. Liggett, 12/16/1986, 106:3-107:1; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 78:3-79:5, 80:2-21; Zahn PD, Richardson v. Philip Morris, 12/1/1998, 96:10-16; CTRMIN-SAB000001-1061, 70011735-1757 (JD 090960); CTRMIN-SAB000001-1061 (U.S. 21146); CTRMIN-SAB0000700074 (U.S. 80382); CTRMIN-SAB000320-0325 (U.S. 80429); CTRMIN-SAB000326-0330 (U.S. 80430); CTRMIN-SAB000337-0341 (U.S. 80432); CTRMIN-SAB000342-0350 (U.S. 80433); CTRMN004320-4323 (U.S. 21148); CTRMN004539^4544 (U.S. 21151); CTRMIN048368-8369 (U.S. 85996); ZN7912-7921 (U.S. 64789); SM0120005-0009 (U.S. 65442); 955011516-1520 (U.S. 32362); TLT0903247-3251 (U.S. 87521); TLT0903189-3193 (U.S. 87522); TLT0903145-3148 (U.S. 87523); TLT0903132-3135 (U.S. 87524); *49 TLT0903116-3117 (U.S. 87525); TLT0903181-3185 (U.S. 87526); TLT0903177-3180 (U.S. 87527); TLT0903166-3169 (U.S. 87528); TLT0903208-3211 (U.S. 88367); TLT0903202-3207 (U.S. 88368); TLT0903197-3201 (U.S. 88369).

57.Many meetings of the SAB had no written record. According to a confidential report on the December 9, 1981 meeting of the SAB, the following policy regarding meetings was reaffirmed: “to conduct informal ‘in house’ conferences on specific subjects ‘off the record’ held without minutes or publication, but not to sponsor open meetings with a resultant publication.” This policy was in effect at least ten years prior to the 1981 meeting and continued into the late 1990s. CTRMIN-SAB 000611-0612 (U.S. 80480); Lisanti PD, Richardson v. Philip Morris, 12/8/98, 112:1621, 114:1-116:18.

58.Contrary to Defendants’ assertions that the members of the SAB were disinterested parties who received no monetary compensation from the tobacco companies or from TIRC/CTR, sixteen members of the SAB (out of forty-three) were awarded over $5 million in grants-in-aid funding between 1954 and 1991. Sommers PD, Cipollone v. Liggett, 10/2/86, 130:4-131:1, 132:1619; McAllister PD, United States v. Philip Morris, 5/23/02, 250:15-253:11; Zahn PD, Cipollone v. Liggett, 12/18/1986, 388:3-7; Lisanti PD, Engle v. Reynolds, 8/13/97, 111:23-112:3; McAllister WD, 76:16-18.

59.Defendants, through the CTR’s Board of Directors, exercised control over the CTR research grant program throughout its existence by approving the total amount of funding for the grant program and, after the first few years, by selecting the CTR Scientific Directors and their staff. Zahn PD, Richardson v. Philip Morris, 12/16/98, 459:13-460:9; McAllister PD, United States v. Philip Morris, 5/23/02, 56:5-57:18; USX6390001-0400 at 0012 (U.S. 89555); CTRMN003816-3835 (U.S. 21147). In fact, Helmut Wakeham of Philip Morris complained to David Felton, a BATCo scientist, that finding a Scientific Director to succeed Little after he resigned “was in the hands of the lawyers committee” and the Tobacco Institute without consultation with CTR or company scientists. 10315968-5971 (U.S. 26378); (U.S. 26379); (U.S. 63573).

2. Research Activities of TIRC/CTR

60. TIRC focused its energies and resources in two areas — public relations and scientific research. First, it served as a sophisticated public relations unit for Defendants, especially in relation to growing public concern about the risks of smoking, by repeatedly attacking scientific studies that demonstrated the harms of cigarette smoke and insisting on the notion of an “open question” regarding cigarette smoking and health. Second, it developed a scientific research program that focused on basic processes of disease rather than evaluating the risks and harms associated with smoking — the very subject that the industry had pledged to pursue through TIRC. Zahn PD, Richardson v. Philip Morris, 12/16/98, 318:16-319:1, 319:3, 325:3-12, 325:20-328:6, 336:15337:11, 561:21-562:7; Brandt WD, 57:13-23; 82:21-83:8, 127:17-19; Sommers PD, Cipollone v. Liggett, 10/2/86, 73:12-16, 73:20-22, 74:2, 74:8-15. From the outset, the dual functions of TIRC were intertwined, with the scientific program of TIRC always subservient to the goals of public relations. Brandt WD, 57:8-11.

61. Defendants’ denials of the link between smoking and disease kept away many excellent researchers. In an October 1969 memorandum to Ross R. Millhiser of Philip Morris, Helmut Wakeham, *50 Vice President and Director of Research for Philip Morris, expressed concern that

the efforts of the tobacco industry through CTR and the American Medical Association have failed to involve the best investigators. At the beginning of our support of smoking and health research, this failure may have been connected with our consistent denial of the statistics and our continued assertion that there is nothing to the cigarette causation hypothesis.

1001609594-9595 (U.S. 21437).

62. A year later, Wakeham again discussed CTR’s strategy of frequent and public denials, in a December 1970 memorandum to Joseph Cullman, Chairman of Philip Morris and Chairman of the Executive Committee of the Tobacco Institute:

It has been stated that CTR is a program to find out the “truth about smoking and health.” What is truth to one is false to another. CTR and the Industry have publicly and frequently denied what others find as “truth.” Let’s face it. We are interested in evidence which we believe denies the allegation that cigarette smoking causes cancer.

1000255938-5940 (U.S. 20085).

63. Defendants, through TIRC/CTR and its public relations strategy, were especially effective in identifying and supporting skeptics of the link between smoking and disease. Skeptics were invited to join the Scientific Advisory Board of the TIRC; they and their home institutions were provided with research grants from the TIRC. Their views were effectively solicited and broadcast widely by TIRC and the Tobacco Institute. Brandt WD, 80:12-18.

64. TIRC/CTR funded research through a variety of mechanisms: grants, contracts, CTR Special Staff Services, and CTR Special Projects. ARU1130828-0904 (U.S. 86773). See Section 111(E)(2), infra for detailed discussion of CTR Special Projects.

65. Virtually none of the research funded by TIRC/CTR centered on immediate questions relating to carcinogenesis and tobacco that could resolve the question of the harms brought about by cigarette smoking. Although some TIRC/CTR-funded researchers explored alternative hypotheses, TIRC/CTR did not typically pursue direct research on cigarettes and disease. Rather than addressing the constituents in tobacco smoke and their demonstrated effect on the human body, TIRC/CTR directed the majority of its resources to alternative theories of the origins of cancer centering on genetic factors and environmental risks. The major thrust of TIRC/CTR was to emphasize that human cancers were complex processes, difficult to study and difficult to understand, and to focus on the “need for more research.” Brandt WD, 82:10-12, 85:12-86:3, 120:20-121:11. Although research funded by the SAB was irrelevant to the immediate questions associated with tobacco smoking and health, it did “create the appearance of [Defendants] devoting substantial resources to the problem without the risk of funding further ‘contrary evidence.’ ” Harris WD, 104:23-105:7.

66. Two of CTR’s Scientific Directors, Harmon McAllister and Sheldon Sommers, confirmed that the basic research funded by CTR was not immediately relevant to smoking and health. McAllister stated that they funded “basic medical research on the etiology of diseases that have been epidemiologically linked to smoking. That’s our global [sic] — that’s the way we operate. Those are the sorts of applications we entertain.” McAllister PD, Broin v. Philip Morris, 12/6/93, 46:2-16. Som-mers stated that a CTR grant application’s relevance to cigarette smoking and health *51 was not the primary factor the SAB used in rating grant applications, but that “[s]ci-entific merit was of equal or of greater importance than relevance.” Sommers PD, Cipollone v. Liggett, 10/2/86, 134:10-22, 135:4-6. Sommers was an SAB member from 1967 to 1989, SAB Chairman from 1970 to 1980, CTR Research Director from 1969 to 1972, and CTR Scientific Director from 1981 to 1987. Sommers PD, Galbraith v. Reynolds, 9/4/85, 10:12-25, 22:7-12, 23:22-24:16; Sommers PD, Rogers v. Reynolds, 12/17/85, 9:11-12, 13:14— 18, 14:15-22; Sommers PD, Arch v. American, 7/14/97, 10:21-24, 11:9-24, 13:9-13, 16:14 — 21, 95:14-22; Sommers PD, Arch v. American, 7/15/97, 16 4:18-22.

67. During a four-week visit to the United States in 1958, the three British scientists who met with representatives of TIRC and TIRC’s SAB, as well as representatives of American, Liggett, and Philip Morris, reported that

Liggett & Meyers stayed out of TIRC originally because they doubted the sincerity of TIRC’s motives and believed that the organization was too unwieldy to work efficiently. They remain convinced that their misgivings were justified. In their opinion TIRC has done little if anything constructive, the constantly reiterated ‘not proven’ statements in the face of mounting contrary evidence has thoroughly discredited TIRC, and the SAB of TIRC is supporting almost without exception projects which are not related directly -to smoking and lung cancer.

TINY0003106-3116 (U.S. 21369); 105408490-8499 at 8495 (U.S. 21135), (U.S. 76169); Brandt WD, 94:8-95:17.

68. After another visit to the United States in the fall of 1964, two different British scientists wrote in their report: “As we know, CTR supports only fundamental research of little relevance to present day problems.” 1003119099-9135 (U.S. 20152).

69. The Defendants knew that TIRC/ CTR was funding research concerning cancer as a general issue, rather than the relationship of smoking to cancer. Brandt WD, 121:6-122:14. In January 1968, Addison Yeaman, B & W Vice President and General Counsel, wrote:

Review of SAB’s current grants indicates that a very sizable number of them are for projects in what might be called ‘basic research’ without specific orientation to the problem of the relationship of the use of tobacco to human health.

00552837-2839 at 2837 (U.S. 22968).

70. In addition, Defendants appreciated the delays associated with the basic research approach. Janet Brown, outside counsel for American, explained CTR’s strategy of undertaking only basic research funding, as opposed to funding questions directly related to tobacco and health to Cy Hetsko, Vice President and General Counsel for American, and Addison Yeaman, Vice President and General Counsel for B & W, at a January 1968 meeting. The rationale was that basic research kept alive the Enterprise’s open question argument on causation. Yeaman summarized Brown’s position as:

First, we maintain the position that the existing evidence of a relationship between the use of tobacco and health is inadequate to justify research more closely related to tobacco, and Secondly, that the study of the disease keeps constantly alive the argument that, until basic knowledge of the disease itself is further advanced, it is scientifically inappropriate to devote the major effort to tobacco.

68-262155-2157 (U.S. 63527).

71. Geoffrey F. Todd, Executive Director of the Tobacco Research Council, a *52 British organization equivalent to CTR (discussed further at Section III(I)(3), infra) made several visits to the United States, during which time he met with Defendants’ representatives, attorneys, and scientists. After his 1973 trip, Todd wrote: “It was difficult to avoid the sad conclusion that C.T.R. has become a backwater of little significance in the world of smoking and health.” 100226995-7033 (U.S. 21134).

72. Throughout the existence of TIRC/ CTR, representatives of the member companies and their attorneys were influential in its activities and research. Beginning in November 1971, CTR staff met semiannually with representatives of the member companies, usually the research directors and general counsel. The all-day meetings were designed to keep members of the Enterprise aware of the status of research funded by Defendants through TIRC/ CTR. CTRMIN-MOM000016-0034 at 0018, 0022 (U.S. 21170).

73. The Enterprise, through TIRC/ CTR, sought out certain researchers and/or areas of research and solicited grant applications. Clarence Cook Little admitted that, seeing a line of work that showed promise, TIRC/CTR approached researchers and asked them, “Are any of you willing to try this if we provide your institution with money and you with help?” Little PD, Lartigue v. Reynolds, 10/5-6/60, 2721:21-2722:9, 2800:12-25; Lisanti PD, Small v. Lorillard, 3/31/98, 478:11-480:25.

74. Sheldon Sommers, CTR Scientific Director, stated that CTR frequently initiated research and suggested particular research for which it would make grants available. He said, “Yes. I go out all the time looking for opportunities and new ideas and investigators in various fields of biomedicine.” Sommers PD, Rogers v. R.J. Reynolds, 12/17/85, 50:19-52:15, 52:22-53:2, 53:7-18; Sommers PD, Cipol-lone v. Liggett, 10/3/86, 181:15-23, 182:12-183:10; Sommers PD, Small v. R.J. Reynolds, 10/8/97, 176:18-177:11; 85760397-0397 (U.S. 85998).

75. One of the reasons that Paul Kotin decided to resign from the SAB was that he was disturbed by “the going out and requesting the submission of grants, of applications for grants. And I felt this circumvented the original foundation for the SAB, at least for my membership in the SAB.” Kotin PD, Falise v. American, 7/6/00, 67:10-69:24. Kotin had served on the TIRC SAB from 1954 to 1965. Kotin PD, Falise v. American, 7/6/00, 9:9-15. Another reason for Kotin’s resignation was reported by visitors from the United Kingdom’s Tobacco Research Council in October 1964:

The recent [CTR] Annual Report by Dr. Little was severely criticised by the U.S. Surgeon General at a Washington press conference. Dr. Kotin was also highly critical of it and talks privately of resigning from the S.A.B. if another report of the same nature is going to be published next year.

512678484-8499 (U.S. 51653); 1003119099-9135 (U.S. 20152), (U.S. 35649*); 105407261-7329 (JE 34739); see also Kotin PD, Falise v. American, 7/6/00, 72:19-73:14; Kotin PD, Falise v. American, 7/7/00, 190:2-192:17, 197:13-198:2.

76. Similarly, John Craighead, who was an SAB member for approximately one year, was also disturbed by the nature of the CTR research program. Craighead resigned from the SAB in part because he felt that the research did not address the fundamental issues related to tobacco and because of the involvement of CTR Chairman Addison Yeaman into the direction of the CTR research program. Craighead PD, Butler v. Philip Morris, 11/13/96, 47:8-17, 84:13-86:3, 87:10-21, 88:6-10, 93:8-17, 107:19-25; Sommers PD, Small v. *53 R.J. Reynolds, 10/7/97, 10:24-11:12, 12:2-13:19.

77. Sheldon Sommers acknowledged the influence and control wielded by CTR Chairmen and Presidents over the TIRC/ CTR research program. AJI TIRC/CTR Presidents were from tobacco companies, Sommers PT, Cipollone v. Liggett, 4/19/88, 8736:7-12, and, until 1991, each and every TIRC/CTR Chairman was a retired tobacco company executive. McAllister WD, 18:15-16. In September 1981, Sommers wrote that “new Chairman Hobbs [from RJR] is more interested in basic research so relevance to smoking and health is no longer- a crucial matter in funding.” 85760397 (U.S. 85998); Sommers PD, Cipollone v. Liggett, 10/2/86, 136:8-14. Som-mers also testified that, after Addison Yea-man (from B & W) became CTR President and CEO, CTR began initiating more contracts because Yeaman believed that “the program was too diffuse and should be ‘targeted.’ ” Sommers PD, Cipollone v. Liggett, 10/3/86, 297:16-298:2.

78. Following CTR’s January 1975 annual meeting, the CTR staff was given more control over the grant and contract application process. According to the meeting minutes:

The Chairman stated that in the continued effort to bring maximum information to the Scientific Advisory Board preliminary investigation is being made by the Council’s staff.... Following this, the proposals are then submitted for study by a subcommittee of the Board [SAB]....

CTRMIN-MOM000070-0087 at 0071 (U.S. 32618).

3. Public Relations Activities of TIRC/CTR

79. In December 1953, Timothy Hart-nett, President of B & W, summarized the crisis of the industry in the following terms:

But cancer research, while certainly getting our support, can be only half an answer..'.. The other side of the coin is public relations ... [which] is basically a selling tool and the most astute selling may well be needed to get the industry out of this hole.... It isn’t exaggeration that no public relations expert has ever been handed so real and yet so delicate a multi-million dollar problem.... Finally, one of the roughest hurdles which must be anticipated is how to handje significantly negative research results, if, as, and when they develop.

1005039779-9783 (U.S. 20190); Brandt WD, 55:22-56:11.

80. From the outset, the dual functions of TIRC — public relations and scientific research —were intertwined. Ernest Pep-ples, in an internal B & W letter dated April 4,1978, acknowledged:

Originally, CTR was organized as a public relations effort. The industry told the world CTR would look at the diseases which were being associated with smoking. There was even a suggestion by our political spokesmen that if a harmful element turned up the industry would try to root it out.

680212421-2423 at 2422 (U.S. 54024); 682338651-8653 (U.S. 22899).

81. One name initially proposed for TIRC/CTR, the “Tobacco Industry Committee for Public Information,” reflected its public relations purpose. However, John Hill of the public relations firm Hill & Knowlton expressed skepticism that a public relations strategy that simply argued that the harms of cigarette smoking were “unproven” would succeed. Such a campaign might appear self-interested in the face of the serious health concerns being raised. Brandt WD, 54:11-19. As a *54 result, Hill suggested that the industry-should sponsor new research and use

[t]he word “research” ... in the name of the Committee to establish the fact that the group will carry on or sponsor fundamental scientific research and will not be solely an information agency.

TLT0900422-0430 at 0424 (U.S. 88169); TLT0901541-1545 at 1542 (U.S. 87225); TLT0901546-1549 (U.S. 88191).

82.A white paper titled “A Scientific Perspective on the Cigarette Controversy” was one of the first public relations projects undertaken by Hill & Knowlton on behalf of its new client, TIRC. TLT0901688-1707 (U.S. 88386). Hill & Knowlton/TIRC undertook the project because Defendants felt it necessary and urgent

to present to leaders of public opinion the fact that there was no unanimity among scientists regarding the charges against cigarettes.

TLT0902041-2064 at 2054 (U.S. 88360). The twenty-page booklet consisted of published quotations from some three dozen scientists and researchers who denied that there was any proof that linked smoking and lung cancer or who questioned the validity of statistical methods and the conclusions drawn from recent laboratory experiments with mice. TLT0901688-1707 (U.S. 88386); TLT0902041-2064 at 2054 (U.S. 88360), (U.S. 88364); CTRMN004924-4927 (U.S. 21152).

83.205,000 copies of “A Scientific Perspective on the Cigarette Controversy” were released on April 14, 1954. CTRMN004924-4927 (U.S. 21152). The booklet was sent to 176,800 doctors, as well as to deans of medical and dental colleges. TLT0902954-2955 (U.S. 88388). The booklet with a press release went to a press distribution of 15,000, including: editors of daily and weekly newspapers, con-;umer magazines, veterans magazines, and medical and dental journals; news syndicate managers; business editors; editorial and science writers; radio and television commentators; news columnists; and Members of Congress. Id.; CTR-TIRC-MIN000001-0252 at 0006, 0007, 0010 (JD 093292); TLT0900159-0161 (U.S. 87720).

84. In the June 1954 “Public Relations Report and Recommendations for Tobacco Industry Research Committee,” Hill & Knowlton described the success of its public relations efforts for TIRC:

Committee headquarters is steadily gaining recognition as a source of authoritative information on the subject of tobacco and health. The result is that news and magazine writers, columnists and commentators are turning to the Committee and its public relations counsel for more and more information.

TLT0901558-1563 at 1559 (U.S. 88394); 514806129-6131 (U.S. 20860).

85. Timothy Hartnett became the full-time chairman of TIRC on July 1, 1954, the day after his retirement as President of B & W, and continued to advance the Defendants’ “open question” position in that role. In the press release generated by Hill & Knowlton announcing his appointment, Hartnett repeated the two commitments that TIRC had made in its Statement of Purpose and in its bylaws, i.e., (1) to carry on “comprehensive and objective scientific and statistical research to establish the facts,” and (2) “report them to the public.” After stating that the “tobacco industry is determined to find the answers to the public’s questions about smoking and health,” Hartnett continued:

It is an obligation of the Tobacco Industry Research Committee at this time to remind the public of [some] essential points: (1) There is no conclusive scientific proof of a link between smoking and cancer; (2) Medical research points to *55 many possible causes of cancer; ... (5) The millions of people who derive pleasure and satisfaction from smoking can be reassured that every scientific means will be used to get all the facts as soon as possible.

Brandt WD, 56:12-23; TLT0901831-1832 (U.S. 88398).

86. Wilson Hoyt, who was initially a Hill & Knowlton employee with no scientific background whatsoever, held positions as TIRC/CTR Executive Secretary, Executive Director, Executive Vice President, and President in his three decades with TIRC/CTR. Brandt WD, 58:23-59:2. In his 1955 administrative reports as TIRC Executive Secretary and Hill & Knowlton executive, Hoyt affirmed the intertwined functions of public relations and research in TIRC’s program. In his April 1955 report, he wrote:

Essentially, the major purposes of the TIRC are Research and Public Relations. Our job is to maintain a balance between the two, and to continue to build soundly so that at all times Research and Public Relations complement each other. In that way we intend to assume the mantle of leadership and, ultimately, to create a condition where the public will look to the TIRC for answers rather than to others.

CTR-TIRC-MIN000033-0052 (U.S. 33006); Brandt WD, 83:9-23. In his January 1955 report, he wrote, ‘Within this framework we have furthered and coordinated the two major purposes for which the Committee was organized namely, the public relations phase and the research program.” CTRTIRC-MIN000001-0252 at 0018-0032 (JD 093292); CTRMN003816-3835 at 3826 (U.S. 21147).

87. Despite Defendants’ assertion that TIRC/CTR was solely an organization that funded independent research for the purpose of finding answers to smoking and health question, it served to a great extent as an effective public relations tool and information conduit. In a July 1963 memorandum, Addison Yeaman, General Counsel for B & W, wrote:

The TIRC cannot, in my opinion, provide the vehicle for such research. It was conceived as a public relations gesture and (however undefiled the Scientific Advisory Board and its grants may be) it has functioned as a public relations operation.

689033412-3416 (U.S. 22034); Brandt WD, 116:17-117:22; VXA2510190-0194 (U.S. 63599); 2046754905-4909 (U.S. 20477); Duffin PD, Cipollone v. Liggett, 1/23/86, 118:14-17.

88. Alexander Spears, Lorillard’s Director of Research, in 1974 echoed the sentiments of Addison Yeaman when he explained:

Historically, the joint industry funded smoking and health research programs have not been selected against specific scientific goals, but rather for various purposes such as public relations, political relations, position for litigation, etc. Thus, it seems obvious that reviews of such programs for scientific relevance and merit in the smoking and health field are not likely to produce high ratings. In general, these programs have provided some buffer to the public and political attack of the industry, as well as background for litigious strategy.

01421596-1600 (U.S. 20049); 83910516-0520 (U.S. 55955); Brandt WD, 123:14-124:1.

89. In a 1975 speech to CTR members, Addison Yeaman gave his observations on the Council, noting, “It is my sober judgement that CTR, as it now operates is the greatest public relations asset you have in the problem of tobacco and health.” 11303014-3020 at 3017 (U.S. 86005) (em *56 phasis in original). See Section 111(D)(2), infra for more discussion of public relations activities.

4. Publications and Public Statements of TIRC/CTR a. TIRC/CTR Annual Reports

90.TIRC/CTR published and issued Annual Reports from 1956 through 1997. McAllister WD, 20:10-11. Copies-of the TIRC/CTR Annual Reports were sent to libraries, colleges and universities, deans of medical schools, science and medical editors and writers for the popular press, CTR grant recipients, and members of professional medical societies. McAllister WD, 20:1424; Glenn PD, Sontag v. U.S. Tobacco, 10/16/96, 34:4-23; Sommers PD, Rogers v. R.J. Reynolds, 12/17/85, 18:8-19.

91.The TIRC/CTR Annual Reports routinely included, in varying formats: abstracts of articles published by researchers funded by TIRC/CTR grants; brief statements regarding organization and policy; lists of SAB members and their affiliations; lists of current and former grantees; lists of ongoing and completed projects; and research summaries, commentaries, rationales, and observations. Zahn PD, Cipollone v. Liggett, 81:1-9; CTRAR000001-CTRAR000015-0040 CTRAR000041-0073 CTRAR000074-0109 CTRAR000110-0147 CTRAR000148-0185 CTRAR000186-0216 CTRAR000217-0253 CTRAR0002540293 CTRAR000294-0334 CTRAR000335-0376 CTRAR000377-0433 CTRAR000434-0477 CTRAR000478-0526 CTRAR000527-0580 CTRAR000581-0629 12/16/86, 79:4-13, ■0013 (JD 090000); (JD 090001); (JD 090002); (JD 090003); (JD 090004); (JD 090005); (JD 090006); (JD 090007); (JD 090008); (JD 090009); (JD 090010); (JD 090011); (JD 090012); (JD 090013); (JD 090014); (JD 090015); CTRAR0006300675 (JD 090016); CTRAR000676-0717 (JD 090017); CTRAR000719-0763 (JD 090018); CTRAR000764-0807 (JD 090019); CTRAR000808-0861 (JD 090020); CTRAR000862-0916 (JD 090021); CTRAR000917-0974 (JD 090022); CTRAR000975-1036 (JD 090023); CTRAR001037 1097 (JD 090024); CTRAR001098-1172 (JD 090025); CTRAR001173-1246 (JD 090026); CTRAR001247-1355 (JD 090027); CTRAR001356-1451 (JD 090028); CTRAR001452-1547 (JD 090029); CTRAR001548-1649 (JD 090030); CTRAR001650-1767 (JD 090031); CTRAR0017681880 (JD 090032); CTRAR001881-2003 (JD 090033); CTRAR002004-2149 (JD 090034); CTRAR002150-2287 (JD 090035); CTRAR002288-2465 (JD 090036); CTRAR002466-2619 (JD 090037); CTRAR002620-2784 (JD 090038); 70000302-0618 (JD 090039); 85865669-5692 (U.S. 22954); 85865742-5804 (U.S. 21082); 85865805-5873 (U.S. 21083); 85865874-5946 (U.S. 21084); 01141473-1541 (U.S. 20039); 85866020-6080 (U.S. 21085); 1002315412-5483 (U.S. 20125); 1002315484-5561 (U.S. 20126); 1002315562-5640 (U.S. 20010); 1002315641-5722 (U.S. 20011); 1002315723-5834 (U.S. 20127); 501773418-3466 (U.S. 20686); 1002315835-5920 (U.S. 21800); 85865693-5741 (U.S. 22237); 1005082487-2584 1005082585-2690 1005082691-2788 2028556086-6177 1002316312-6397 1002316398-6485 1002316486-6571 1002316572-6677 (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. 1002316678-6780 (U.S. 20132). 20202); 20203); 20012); 20428); 20128); 20129); 20130); 20131);

92.From 1956 until 1993, TIRC/CTR public relations counsel Leonard Zahn was *57 in charge of preparing and compiling the Annual Reports, making distribution recommendations, and drafting the Introduction section for some of them. Zahn PD, Cipollone v. Liggett, 12/18/86, 368:23-369:4, 369:10-370:14, 371:5-9, 371:11-372:8, 379:16-381:24, 382:17-21; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 41:22-45:12, 48:2-7, 49:6-17, 49:22-51:1, 51:14-21, 52:823; CTRMN015594-015613 (U.S. 79903). In a December 1972 memo attached to his proposed outline for the next report, Zahn acknowledged that

[t]he research section of the CTR [Annual] Report is based on published articles by grantees and, unfortunately, not much directly related to tobacco appeared in the last 18 months.

CTRMN015614-015616 (U.S. 79904).

93. The commentary in the Annual Reports uniformly challenged the hypothesis that smoking was linked to lung cancer and emphasized that data regarding smoking and health were controversial, contradictory, and inconclusive. For example:

• 1957 Report of the Scientific Director (“[S]ound medical and experimental knowledge of tobacco use is relatively limited, at times contradictory, and often conjectural rather than factual.... There is not known today any simple or quick way to answer the question of whether any one factor has a role in causing human lung cancer ... no one has established that cigarette smoke, or any one of its known constituents, is cancer causing to man.... Members of the [TIRO SAB] Board take the general position that definitive conclusions or predictions of individual risks are unwarranted by the present imperfect state of knowledge in the complex field of lung cancer causation,” and describing cancer as “this so-called constitutional disease.”);

• 1958 Report of the Scientific Director (“[A] problem may well be obscured, and its solution delayed, by the soothing acceptance of an oversimplified and immature [tobacco theory] hypothesis____ The proponents of the tobacco theory have generated increasingly intensive and extensive propaganda.... As a result, a non-scientific atmosphere, conducive to prematurity, unbalance, and inadequacy of public judgement, has pervaded the whole field.... The prohibition concept discounts or ignores all considerations of smoking benefits in terms of pleasure, relaxation, relief of tension or other functions.”);

• 1961 Report of the Scientific Director (“[T]hose who most actively promote this [smoking-lung cancer] hypothesis have consistently ignored or, at best, have minimized the fact that numerous directly relevant experiments either have failed to support the hypothesis or have provided only weak or uncertain data.”);

• 1963-64 Report of the Scientific Director (“After 10 years the fact remains that knowledge is insufficient either to provide adequate proof of any hypothesis- or to define the basic mechanisms of health and disease with which we are concerned.”);

• 1964-65 Report of the Scientific Director (“[EJvidence to support the thesis that cigarettes exercise a direct carcinogenic effect on man has not been forthcoming.”);

• 1978 Report of the Council for Tobacco Researeh-U.S.A., Inc. (“[T]he complex etiology of these constitutional diseases [cancer, heart disease, chronic pulmonary ailments] remains *58 unraveled. These diseases have been associated statistically with smoking, but such associations are not proof of cause and effect.”).

CTRAR000015-0040 (JD 090001); 501773418-3466 (U.S. 20686); Brandt WD, 86:19-87:20; 85865693-5741 (U.S. 22237); CTRAR000041-0073 85865742-5804 CTRAR000148-0185 01141473-1541 CTRAR000217-0253 1002315412-5483 CTRAR000254-0293 1002315484-5561 CTRAR000808-0861 1002316572-6677 (U.l (JD 090002); (U.S. 21082); (JD 090005); (U.S. 20039); (JD 090007); (U.S. 20125); (JD 090008); (U.S. 20126); (JD 090020); i. 20131).

94.For more than two decades, the commentaries in the Annual Reports also discounted the conclusions reached by the public health community and the Surgeon General linking smoking and disease and simply repeated the “open question” position of the tobacco industry. 5157092979340 (U.S. 20866); see Section (V)(A), infra. Robert Hockett, Associate Scientific Director at the Council for Tobacco Research-USA, which evaluated the content of the Annual Reports for the industry wrote: “The aim of [Little’s] summations, much too apparently, seems to be to protect smoking.” MNAT00515749-5762 at 5752 (U.S. 63570); Brandt WD, 122:15-123:13; Lisanti PD, Small v. Lorillard, 3/31/98, 454:5-14.

95.A June 20, 1984 memorandum from Wendell Stone, attorney at Shook, Hardy & Bacon, during the Cipollone litigation, acknowledged the bias of CTR/TIRC’s annual reports. Stone commented that the reports, especially the early ones, “contained lengthy commentary ... which read much like industry position papers.” Stone also concluded:

The TIRC/CTR commentary on research did not always seem to conform fully to the positions taken or implied in the abstract. For example, with respect to the Leuchtenberger inhalation research, the abstracts in the annual reports tend to give the impression that these researchers did in fact have a good animal model of lung cancer production by smoke inhalation. However, commentary on this research in the front material to the reports tended to argue away the relevance of the results.

515709297-515709340 (U.S. 20866).

b. TIRC/CTR Newsletters

96.From October 1957 to at least 1968, first TIRC and then the Tobacco Institute published a newsletter variously named Tobacco and Health, Research Reports on Tobacco and Health, and Reports on Tobacco and Health Research. The newsletter was published two or three times a year; contained articles that disputed the relationship between smoking and disease; criticized research supporting such a relationship; and emphasized that differing opinions existed regarding tobacco use and health. Brandt TIMN0000713-0714 TIKU000006665-6668 TIMN0000719-0722 TIMN0000723-0726 TIMN0000727-0728 TIMN0000733-0734 TIMN0000736-0738 TIMN0000739-0744 TIMN0000745-0747 TIMN0000748-0750 TIMN0000751-0756 TIMN0000757-0762 TIMN0000763-0774 TIMN0000775-0780 TIMN0000781-0784 TIMN0000785-0788 TIMN0000789-0792 TIMN0000793-0796 TIMN0000797-0800 TIMN0000801-0804 WD, 84:10-85:9; (U.S. 21264); (U.S. 86007); (U.S. 86011); (U.S. 86012); (U.S. 86013); (U.S. 86014*); (U.S. 86015*); (U.S. 86016); (U.S. 86017); (U.S. 86045); (U.S. 86018); (U.S. 86019); (U.S. 86020); (U.S. 86021); (U.S. 86022); (U.S. 86023); (U.S. 86024); (U.S. 86025); (U.S. 86026); (U.S. 86027); *59 TIMN0000805-0808 TIMN0000809-0812 TIMN0123324-3327 TIMN0130693-0696 TIMN0130707-0710 TIMN0130728-0731 TIMN0130802-0803 TIMN0130816-0817 TIMN0000713-0714 TIMN0123276-3279 TIMN0123304-3307 TIMN0130687-0690 TIMN0130742-0745 TIMN0130749-0752 TIMN0130778-0781 TITX0006679-6682 502367882-7887 TIMN0123314-3317 TITX0006691-6694 TIMN0000748-0750 TIMN0130810-0811 TIMN0130735-0738 TIKU000006559-6562 TIKU000006545-6548 TIMN0130756-0761 TIMN0130714-0717 TIKU000006538-6541 511018410-8413 MNAT00515648-5651 (U.S. 86028); (U.S. 86029); (U.S. 21282); (U.S. 62844); (U.S. 62845); (U.S. 62847); (U.S. 62849); (U.S. 62851); (U.S. 21264); (U.S. 77059); (U.S. 77060); (U.S. 77068); (U.S. 77069); (U.S. 77070); (U.S. 77071); (U.S. 77111); (U.S. 49132); (U.S. 21345); (U.S. 86044); (U.S. 86045); (U.S. 62850); (U.S. 62848); (U.S. 86048); (U.S. 86050); (U.S. 86051); (U.S. 62846); (U.S. 86052); (U.S. 22459); U.S. 72185).

97.Initially, TIRC was to publish the Tobacco and Health newsletter. This provoked a strong reaction from members of the Scientific Advisory Board who received advance copies of the first issue. In a letter to SAB Chairman Clarence Little, SAB member McKeen Cattell classified the new publication as “obviously propaganda material” and expressed -serious concern about the effect it would have on the SAB’s program. 701235030-5030 (U.S. 31474). Julius Comroe, another SAB member, advised that the SAB and TIRC should not be identified with the Tobacco and Health publication. 70123533-3533 (JD 093608); 70123536-3536 (JD 093610).

98. In response to these concerns, the Tobacco Information Committee, a subcommittee of TIRC, was formed in late 1957, from what was previously known as the TIRC Public Relations Committee. The committee was comprised of public relations employees from the companies and public relations counsel representing the companies, and one of its principal functions was to publish the Tobacco and Health newsletter. The first two issues of the Tobacco and Health newsletter were issued under the name of the Tobacco Information Committee and financed from the TIRC budget. 70123534-3534 (JD 093609); CTR-TIRC-MIN000001-0252 at 0125-0127 (JD 093292); CTRMN039046-9106 at 9056 (JD 092825).

99. In 1958, after 'the first two issues were published, the Tobacco Institute assumed responsibility for publishing the Tobacco and Health newsletter on behalf of Defendants. Even when published by the Tobacco Institute, there was close coordination with TIRC, and most editorial material derived from TIRC annual reports, the TIRC library, and other materials available through TIRC. CTR-TIRC-MIN000001-0252 at 0154, 0162 (JD 093292).

100. A 1968 Tobacco and Health Research procedural memorandum from Hill & Knowlton to William Kloepfer, Tobacco Institute Vice President, admitted that “[m]ost papers used in TH & R come from the Council for Tobacco Research Library through advance distribution of Ken Austin of CTR.” Zahn PD, Cipollone v. Liggett, 12/18/86, 344:9-22.

101. The Tobacco and Health newsletter was a public relations vehicle used to influence health professionals. Its primary purpose was to present directly to the medical and scientific communities research material related to tobacco and health — material that frequently did not *60 deal with tobacco but suggested other causes of cancer, such as viruses, air pollution, and previous chest ailments. Its secondary purpose was to attract the attention of the lay press to studies that challenged the validity of research linking cancer to cigarette use. A news release with each issue attracted press attention; one or both of the major wire services usually carried stories. In order to combat the effects of the Tobacco and Health newsletter, four non-governmental health agencies began issuing a Medical Bulletin on Tobacco in 1962. TIMN0081443-1457 at 1443-1444 (U.S. 21307); Brandt WD, 84:10-85:9.

102. In 1962, circulation of the newsletter reached 520,000, with about 315,000 copies going to doctors, dentists, and medical schools, and the rest going to writers and editors, public opinion leaders, all members of Congress, brokerage houses, tobacco groups, farm and supplier groups, industry groups, and member companies. Publication of research results helped make news and was coordinated with other publicity efforts. TIMN0070640-0656 at 0643 (U.S. 21299); TIMN0070657-0674 at 0661 (U.S. 22983); CTRMN015416-5435 at 5416-5417, 5421 (U.S. 79889); CTRMN015485-5502 at 5489 (U.S. 79893); CTRMN015412-5415 at 5415 (U.S. 79888).

103. In a procedural memorandum, Hill & Knowlton delineated specific criteria for selecting reports to be included in Tobacco and Health. The memorandum stated that research did not have to always deal specifically with tobacco; for example, research which suggested that other factors may cause diseases associated with smoking should be included; “[t]he most important type of story is that which casts doubt on the cause and effect theory of disease and smoking.” Brandt WD, 119:7-21; TIMN00721488-1491 (U.S. 63575); (U.S. 21302), (U.S. 21614); CTRPUB-LICSTMT001270-1281 (U.S. 32646).

b. TIRC/CTR Press Releases and Other Public Statements

104.TIRC/CTR, with the assistance of its public relations counsel Hill & Knowl-ton, and later Leonard Zahn, was remarkably effective in making certain that the Defendants’ position of “no proof’ and the need for “more research” reached the national media, and thus the public. Typically, news accounts of new medical findings would be accompanied by a press release or statement from TIRC/CTR insisting that “nothing new” had been found and the studies were “merely” statistical. Brandt WD, 78:18-79:2, 119:22-120:15. Moreover, TIRC/CTR was effective in mobilizing a relatively small group of skeptics and amplifying their views as if they were equal in number and significance to an emerging scientific consensus about the harms of smoking (discussed in detail at Section V(A)(3)(c), infra). Brandt WD, 79:6-8, 90:20-92:5; see, e.g., 500518759-8761 (U.S. 20636) (1958 year-end Hill & Knowl-ton/TIRC press release in which TIRC Chairman Timothy Hartnett asserts that “scientists of high professional standing have produced additional evidence and opinions that challenge the validity of broad charges against tobacco use”); 503283464-3467 (U.S. 22981) (TIRC’s Clarence Cook Little’s November 1959 response to Surgeon General Burney’s statement that begins, “Today, more than ever before, scientific evidence is accumulating that conflicts with or fails to support the tobacco-smoking theories of lung cancer.”); 500518873-8875 (U.S. 63601) (1960 Hill & Knowlton/TIRC press release quoting Little and titled “New Evidence Shows Complexities of Lung Cancer, Scientist [Little] Says”); 00552685-2690 (U.S. 47724) (1970 Leonard Zahn/CTR press release quoting Little that begins, “A considerable number *61 of studies by independent scientists raise questions as to whether smoking has actually been shown to be a health hazard”); 60028206-8210 (U.S. 53301); 670307882-7891 (U.S. 21867); 670307882-7883 (U.S. 63574) (1969 CTR press release quoting Little that begins, “The scientist [Little] who has been associated with more research in tobacco and health than any other person declared today that ‘there is no demonstrated causal relationship between smoking and any disease. The gaps in knowledge are so great[.]’ ”); CTRPUB-LICSTMT001241-1545 at 1265 (JD 043276) (1970 Leonard Zahn/CTR press release quoting Little on genetic and environmental factor theories); 500518873-8875 (U.S. 20635); 500015901-5905 (U.S. 47778).

105. The relationship between TIRC/ CTR and Hill & Knowlton remained close for many years. Because TIRC had no headquarters and no staff when it was formed, Hill & Knowlton provided a working staff and temporary office space and assigned one of its experienced executives, Wilson Hoyt, to serve as Executive Secretary for the TIRC. In early 1956, the TIRC Executive Committee approved the relocation of TIRC’s offices to the building where Hill & Knowlton’s offices were located. At their January 29, 1964 meeting, the TIRC Executive Committee agreed to immediately transfer seven Hill & Knowl-ton employees, including Hoyt, to TIRC. TLT09020412064 (U.S. 88364); 93218985-8986 (U.S. 21116); TLT0900114-0115 (U.S. 88402); CTRMN0038163835 at 3825 (U.S. 21147).

106. Even after the Tobacco Institute (discussed further infra at Section 111(D)) was created in 1958, TIRC/CTR continued its public relations activities with the assistance of public relations counsel Hill & Knowlton, and later Leonard Zahn. 93218985-8986 (U.S. 21116); 70057072-7073 (U.S. 21983); 512678484-8499 (U.S. 51653).

107.As noted earlier, Hill & Knowlton gave advice and direction to the leaders of the Enterprise even before its actual formation in December of 1953. Thereafter, it provided public relations services for TIRC/CTR from 1954 until 1964. It provided the same services for the Tobacco Institute from 1958 until 1968, in 1979, and again from 1987 through 1991. USX6390001-0400 at 0012 (U.S. 89555). See also Adams PD, United States v. Philip Morris, 6/19/02, 495:5-17. Leonard Zahn was an integral part of TIRC/CTR’s public relations program -first as an employee of Hill & Knowlton assigned to the TIRC account, and later, on his own, as primary public relations counsel for CTR. Leonard Zahn was hired by Hill & Knowl-ton in 1955 to work on the TIRC account. In 1969, Zahn resigned from Hill & Knowl-ton; formed his own company, Leonard Zahn & Associates; and was appointed CTR’s public relations counsel. Zahn PD, Cipollone v. Liggett, 12/16/86, 9:19-21, 10:4-8, 43:17-20, 44:12-20, 45:15-18, 46:5-7, 16-17; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 48:15-22, 58:8-17, 59:9-17; Zahn PD, Richardson v. Philip Morris, 12/1/98, 16:9-17:8, 21:21-22:6, 25:13-26:16; Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14. Zahn & Associates served as CTR public relations counsel through 1993- and was paid $127,053 by CTR that last year. CTRMIN-BD 000001-0303 at 0277, 0283 (JD 093208). During his decades with TIRC/CTR, Zahn attended and reported on scientific conferences, attended SAB meetings, organized press conferences, served as liaison between CTR and the Tobacco Institute, prepared articles, and drafted press releases and public statements as well as the annual reports for CTR. Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14; McAllister WD, *62 188:20-189:5; Kornegay PD, Cipollone v. Liggett, 12/5/84, 529:4-530:10; 70124410-4414 (U.S. 31512); CTR98CONG00070-0070 (U.S. 25897); CTRMN015360-5360 (U.S. 79868); CTRMN015361-5361 (U.S. 79869); CTRMN015362-5365 (U.S. 79870); CTRMN0153705371 (U.S. 79873); CTRMN015380-5381 (U.S.Ex. 79877); CTRMNZN475-477 (U.S. 21160).

D. Tobacco Institute

1. Formation of the Tobacco Institute

108. As time passed, TIRC faced increasing difficulty reconciling its dual functions of public relations and research. On the one hand some SAB members had always wanted a more distinct separation between the SAB and TIRC. As early as October 1954, the SAB

recognized the need for a more affirmative informational approach by the TIRC, and expressed the feeling that it would be in order for the Committee [TIRC] to take more positive action on its own through Mr. Hartnett as chairman without, at the same time, drawing the Advisory Board or the research program into such utterances.

CTRMN004227-4232 at 4230 (U.S. 86073).

109. In addition, there was growing concern about TIRC making partisan arguments on behalf of the industry while it was sponsoring research that the industry wanted to be perceived as objective. Brandt WD, 90:4-9; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 98:25-99:16; BWX0011174-1187 at 1176 (U.S. 21773). In 1958, a SAB member wrote a letter to those attending the February SAB meeting objecting to public statements which had been made by Clarence Cook Little, contending that when Little spoke as Scientific Director of the TIRC, the inference was that Little was also speaking for the SAB. CTRMN039046-9106 at 9055 (JD 092825). The dissenting SAB member indicated that, unless a more distinct separation could be established between the SAB and TIRC, he felt he could not continue to serve on the SAB. Two other SAB members joined in this statement. CTR-TIRC-MIN000001-0252 at 0142 (JD 093292); 681879254-9715 at 9391 (U.S. 21020). According to SAB member Paul Kotin, members of the TIRC SAB made quite clear “the inadvisability and downright unacceptability” of the SAB or its members being quoted in TIRC press releases and public statements concerning the smoking and health controversy. Kotin PD, Falise v. American Tobacco, 10/31/00, 348:25-352:14.

110. On the other hand, some members of the Enterprise wanted an organization that would take a much more aggressive public relations stance to counter arguments linking smoking and disease and to oppose proposed labeling legislation facing the industry. BBAT030581-0582 (U.S. 22058); MNAT00724279^280 (U.S. 22996); TLT0900385-0389 (U.S. 88209).

111. Defendants finally decided to create a separate non-profit corporation, the Tobacco Institute (“TI”), which would be responsible for more aggressive public relations and political lobbying and would not have the limitations associated with TIRC. 93481139-1140 (U.S. 21117); Brandt WD, 88:20-90:3.

112. The creation of a separate organization was felt to be

a way of keeping Little inviolate and untainted in his ivory tower while giving a new group a little more freedom of action in the public relations field.... [T]he legal people were especially interested in this argument because they thought of Dr. Little as a potential witness and were not anxious to have him making public statements which could *63 compromise his usefulness to them in court.

Brandt WD, 90:4-19; BWX0011174-1187 at 1176 (U.S. 21773).

113. In January 1958, twelve manufacturers of cigarettes, smoking and chewing tobacco, and snuff jointly announced the formation of the Tobacco Institute. The companies forming the Tobacco Institute included Defendants American, B & W, Liggett, Lorillard, Philip Morris, and Reynolds. 93481139-1140 (U.S. 21117).

114. The Tobacco Institute was incorporated in New York State, TIMN0010606-0609 (U.S. 21291), TIMN0011255-1260 (U.S. 22250), and the Tobacco Institute bylaws were adopted at the meeting of the incorporators and members held on January 29, 1958. TIMN0005705-5712 at 5706 (U.S. 21290); 1005136918-6933 (U.S. 20223).

115. The Tobacco Institute was a trade association. According to its 1958 Certificate of Incorporation, the Tobacco Institute was formed

to promote a better understanding by the public of the tobacco industry and its place in the national economy; to cooperate with governmental agencies and public officials with reference to the tobacco industry; to collect and disseminate information relating to the use of tobacco; to collect and disseminate scientific and medical material relating to tobacco; to collect and disseminate information relating to the tobacco industry published or released by any governmental agency, federal or state, or derived from other sources independent of the industry; to collect and disseminate information relating to legislative! and administrative developments, federal or state, affecting the tobacco industry; to promote public good will.

(no bates) (U.S. 21291); see also (no bates) (U.S. 87552).

116. The Tobacco Institute had a Board of Directors “composed in'a fashion similar to that of the Council for Tobacco Research” and an Executive Committee consisting of the chief executive officers of the major tobacco companies. 044227839-7844 (U.S. 20066). That Committee, “[a]s a practical matter ... for many years” was run by “a committee of four lawyers, one from each of the major member tobacco companies.” Id.

117. The Tobacco Institute Board of Directors held its first meeting on January 30, 1958. Former Congressman, James Richards of South Carolina was elected President and Executive Director; Joseph F. Cullman, III, President of Philip Morris, was elected Treasurer; and Chandler Kibbe, Vice President of Philip Morris, was elected Assistant Treasurer. Among those elected to membership at this meeting were American, Liggett, Lorillard, Philip Morris, and Reynolds. An Executive Committee was established, .and its members were Cullman; Benjamin Few, President of Liggett; Bowman Gray, Chairman of Reynolds; Lewis Gruber, President and Chairman of Lorillard; and J. Whitney Peterson, President of United States Tobacco. TIMN0005705-5712 at 5705, 57075711 (U.S. 21290).

118. At the first meeting of its Board of Directors, Hill & Knowlton was appointed Tobacco Institute public relations counsel, and Covington & Burling was appointed Tobacco Institute legal counsel. Id.; USX6390001-0400 at 0012 (U.S. 89555). Both were to play a major role in setting the priorities for and guiding the future operation of the Tobacco Institute.

119. In addition to Covington & Bur-ling, the Tobacco Institute also had a relationship with Shook, Hardy & Bacon. A May 1982 letter from William Shinn of Shook, Hardy & Bacon, to Robert Sachs, *64 Counsel for B & W, and Arthur Stevens, General Counsel for Lorillard, described this relationship. Shinn divided the law firm’s activities into four categories: Tobacco Institute Clearance Procedures, Tobacco Institute Committees, Science and Research, and General. Clearance procedures were defined as a number of standard operating procedures in examining Tobacco Institute materials with potential smoking and health overtones. Tobacco Institute Committee work involved attending meetings of the Committee of Counsel, Communications Committee, and Executive Committee. See Section 111(D)(4), infra for detailed discussion of Tobacco Institute Committees. Science and Research work primarily concerned the development of special projects and industry witnesses. General work was a catchall category with activities ranging from literature review, for the purposes of identifying possible expert witnesses, to appearances at the Tobacco Institute’s College of Tobacco Knowledge (discussed in detail at Section 111(D)(5), infra). 521043046-3050 (U.S. 20891); 2015035387-5391 (U.S. 36651).

120.Members of the Enterprise convened regularly between 1958 and 1998 at the meetings of the Tobacco Institute’s Board of Directors. At these meetings, representatives from the Enterprise discussed and passed resolutions regarding the Tobacco Institute’s budget, programs and projects of the various divisions, election of officers, payment of dues, and amendments to the bylaws. TIMN0005705-5712 (U.S. 21290); LG2000457-0461 (U.S. 21876); 2025856215-6225 (U.S. 23769); TIMN0006140-6146 (U.S. 62658); TIMN0006405-6411 (U.S. 62663); TIMN0012917-2923 (U.S. 62779); TIOK0004462-4466 (U.S. 63020); TIMN0017710-7711 (U.S. 87550); TIMN00128932900 (U.S. 88241); TIMN0006140-6146 (U.S. 88243); TIMN0012951-2955 TIMN0012974-2980 TIMN0012995-3000 TIMN0013001-3010 TIMN0006405-6411 TIMN0013203-3213 TIMN0014400-4410 (U.S. 88244); (U.S. 88245); (U.S. 88246); (U.S. 88247); (U.S. 88248); (U.S. 88249); (U.S. 88250); TIMN0012963-2973 (U.S. 88321); Stevens WD, 3:21-4:2, 4:14-23, 8:4-14, 17:14-19; see also Kornegay PD, Small v. Lorillard, 11/18/97, 36:11-19.

121.Although the membership fluctuated during the existence of the Tobacco Institute, all Defendants (except BATCo, CTR, and the Tobacco Institute itself) created, agreed to fund, and/or did jointly fund the Tobacco Institute over the years. TIFL0020285-0311 at 0297-0305 (JD 080429). From 1958 through 1999, payments to the Tobacco Institute from Defendants amounted to more than $618,432,000, including: $161,505,876 from Philip Morris; $1,848,530 from Liggett; $110,298,387 from Reynolds; $29,195,668 from Lorillard; $15,933,769 from B & W; and $19,146,216 from American. ARG0333104-3192 at 3175-3176 (U.S. 75555); ARU5856402-6406 at 6403-6406 (U.S. 75925); USX6400001-0527 at 0134-0135, 0223-0225, 0344-0346 (U.S. 89561) (Defendants’ Responses to Interrogatory No. 25).

122.Lorillard was not a member of the Tobacco Institute from 1968 to 1971. TIFL0020285-0311 at 0299-0305 (JD 080429). However, even during its non-membership, Lorillard it continued to “receive the releases and other information issued by the Institute,” attended meetings of the lawyers of all the major companies at the Institute’s offices, and was “kept apprised of the Institute’s activities.” 044227839-7844 (U.S. 20066).

123.Executives of Defendant Philip Morris Companies attended and participat *65 ed in meetings of the Tobacco Institute Board of Directors and the Executive Committee of the Board of Directors. These executives included Thomas Ahrens-feld, Senior Vice President and General Counsel; David Greenberg, Vice President; Kathleen Linehan, Vice President Government Affairs; Howard Liebengood, Vice President; and Steve Parrish, Senior Vice President. 2025856215-6225 (U.S. 23769); 2021266946-6951 (U.S. 26055); 87718289-8294 (U.S. 32068); 980166160-6167 (U.S. 32464); 521500132-0136 (U.S. 52769); TI16760871-TIMN0014390-4393 TIMN0014955-4960 2025856068-6073 2023723951-3955 TIMN0017710-7711 TIMN0013651-3655 TIMN0013656-3659 TIMN0014418-4425 TIMN0017720-7722 TIMN00177257729 TIMN0017731-7736 TIMN0018436-8439 TIMN0018451-8455 TIMN0018462-8466 TIMN0018590-8593 TIMN0019234-9239 TIMN0013203-3213 TIMN0014400-4410 TIMN0010629-0629 ( ■0372 (U.S. 62461); (U.S. 62782); (U.S. 62784); (U.S. 86509); (U.S. 86510); (U.S. 87550); (U.S. 88302); (U.S. 88303); (U.S. 88304); (U.S. 88305); (U.S. 88306); (U.S. 88307); (U.S. 88308); (U.S. 88309); (U.S. 88310); (U.S. 88311); (U.S. 88312); (U.S. 88249); (U.S. 88250); J.S. 88252).

124.The Tobacco Institute’s amended bylaws created two classes of membership. Class A members were the cigarette manufacturers (those members who as of the date of any election of directors would be subject to additional dues assessment per Article III, Section 1 of the bylaws). Class A members would be entitled to elect twice the number of directors as there were Class A members. Members not subject to such assessment would be entitled to elect the same number of directors as there were Class B members. In addition, the members determined that the chief executive of each member company would be designated to serve on the Tobacco Institute Executive Committee. LG20000457-0461 (U.S. 86081); TIMN451429-1435 (U.S. 87551); 2021266019-6028 at 6019 (U.S. 26736).

125. The primary functions of the Tobacco Institute included: advancing— through press releases, advertisements, publications, and other public statements — the Enterprise’s primary position that there were scientific and medical doubts concerning the relationship between smoking and disease; disputing statements from health organizations about smoking and disease, and later about second hand smoke and disease; using the results of TIRC/CTR research projects and other industry-sponsored research projects to question the charges against smoking, to emphasize the complexities of those diseases with which smoking has been statistically associated, and to reassure the public that the industry was actively investigating the issues; denying that cigarette smoking was addictive; minimizing the difficulties of quitting smoking; and denying that the industry marketed to youth. USX6390001-0400 (U.S. 89555).

126. In 1958, when the Tobacco Institute was created, Hill & Knowlton secured the account to handle its public relations. Brandt WD, 52:8-9. Two of the Hill & Knowlton employees assigned to handle the new Tobacco Institute account were Leonard Zahn and Carl Thompson, who were also handling the TIRC account. Zahn PD, Cipollone v. Liggett 12/16/86, 85:16-86:20. One of four public relations objectives in Hill & Knowlton’s March 1958 Recommendations to the Tobacco Institute was: “To create a better public understanding of facts regarding tobacco use and health, and of the contribution the industry is making to efforts of science to *66 find the answers to health questions.” CTRMN015402-5408 at 5402-5403 (U.S. 79886).

127. A 1966 document titled “The ‘Mission’ of the President of the Tobacco Institute” explained that, to meet its objectives, “the full resources of the Institute must be directed toward a consistent and positive program to gain public exposure to research results and scientific opinions that question the charges against smoking and that point up the complexities of those diseases with which smoking has been statistically associated.” 502645038S-5038Z (U.S. 23053).

128. In a January 1968 memorandum to Earle Clements, Vice President William Kloepfer, who was responsible for public affairs, set forth what was to be the guiding public relations policy for the Tobacco Institute: “to attempt to increase substantially public awareness of the cigarette controversy; putting it another way, to make a greater portion of the public aware that widespread indictment of cigarettes as a cause of poor health does not amount to conviction.” CTRMN0155755593 (U.S. 79902).

129. However, in an April 1968 memorandum to Earle Clements, President of the Tobacco Institute, William Kloepfer, expressed concern that the industry’s strategy of constant and consistent denial of smoking’s harm was untenable. He wrote: “Our basic position in the cigarette controversy is subject to the charge, and maybe subject to a finding, that we are making false and misleading statements to promote the sale of cigarettes.” VXA2511046-1048 (U.S. 63576); Brandt WD, 117:23119:6; 1005112459-2461 (U.S. 20213).

2. Relationship Between the Tobacco Institute and TIRC/CTR

130. Creation of the Tobacco Institute did not end TIRC/CTR’s public relations activities. Rather, it marked the beginning of a joint public relations effort, between CTR, the Tobacco Institute, and their overlapping Defendant-members in which the scientific and information functions of TIRC/CTR were used by the Tobacco Institute in its public relations activities, although there was never a totally precise division of labor between TIRC/ CTR and the Tobacco Industry. Brandt WD, 89:23-90:3.

131.During the SAB’s February 14-15, 1958 meeting, SAB Chairman Little asked TIRC Chairman Timothy Hartnett about the newly-formed Tobacco Institute, its purposes, and its relationship, if any, to TIRC. Hartnett explained that the Tobacco Institute was a separate entity and that its formation did not change or alter in any respect TIRC, its objectives, or its functions. He told the SAB members that it had become apparent, during the 1957 congressional hearings before the Blatnik Committee which had addressed the disclosure of tar and nicotine yields in advertising, that the tobacco industry needed to have one spokesman, rather than someone from each tobacco company, represent it at various times and places. CTRMIN-SAB000001-1061 at 0114 (JD 090960); 681879254-9715 at 9391 (U.S. 21020); see also Chilcote PD, Minnesota v. Philip Morris, 9/18/97, 27:5-28:6, 30:16-20.

13. TIRC Chairman Hartnett also informed the SAB members at that same meeting that Hill & Knowlton was acting as public relations counsel for both TIRC and the Tobacco Institute and “pointed out the desirability of this from both organizations’ standpoint.” CTRMIN-SAB0000011061, 70011735-1757 at 0114 (JD 090960); see also Zahn PD, Cipollone v. Liggett, 12/16/86, 85:16-86:20.

133. At the July 1958 meeting of the Tobacco Institute Executive Committee, *67 Chairman Bowman Gray of Reynolds reported that the respective functions of the Tobacco Institute and TIRC had been discussed at length, and announced “a tentative decision to let the matter of the respective functions of the two organizations (the Tobacco Institute and the TIRC) be decided on a case by case basis under the guidance of public relations counsel,” Hill & Knowlton. 04209323-9326 at 9323 (U.S. 47370); 681879254-9715 at 9391-9392 (U.S. 21020).

134. Defendants expected the Tobacco Institute and TIRC/CTR to act in coordination when taking a position on specific news stories involving tobacco and health. In a February 1958 letter to John Hill of Hill & Knowlton, Paul Hahn, President of American, wrote, “In the present state of evidence, the position of the Institute should be compatible with that of TIRC and SAB.” TLT0900385-0389 at 0387 (U.S. 88209).

135. Hill & Knowlton understood that [cjomment from TIRC for the press remains an effective way to meet anti-tobacco publicity efforts and emphasizes the multiple factors that should be considered. This, of course, is complemented with a continuing program of supplying information to give editors and writers a balanced perspective on questions of tobacco and health.

HT0145148-5150 (U.S. 21177).

136. Hill & Knowlton worked aggressively on behalf of both its clients, TIRC and the Tobacco Institute, to influence the media and ensure that the position and interests of the industry regarding smoking and health were well represented to journalists, broadcast reporters and magazine writers. Hill & Knowlton staff carefully documented their interventions, and their many successes. Brandt WD, 59:4-7, 131:18-132:1.

137. For example, Hill & Knowlton, having anticipated the appearance of an article by United States Surgeon General Leroy E. Burney in the November 1959 Journal of the American Medical Association, VXA2150046-0054 (U.S. 63608), learned of its contents and provided the press, in advance of publication, with statements from both TIRC and Tobacco Institute representatives attacking the Surgeon General’s assessment of the scientific evidence linking cigarettes to lung cancer. Brandt WD, 92:17-94:7; TIOK0000477-0477 (U.S. 22720) (Tobacco Institute President James Richards); 503283464-3467 (U.S. 22981) (TIRC Scientific Director Clarence Cook Little); HT0145148-5150 (U.S. 21177); TIMN0110091-0091 (U.S. 21319).

138. TIRC Chairman Timothy Hart-nett reported to TIRC members in 1960 that:

The staff of TIRC is constantly in touch with Hill & Knowlton, and consults on every phase of activity relating to health matters. For example, it provides speakers for platforms, helps analyze both scientific papers and charges against smoking which appear in the public press, and consults on statements which are issued to inform the public.

CTR-TIRC-MIN000174-0186 at 0184 (U.S. 33016); CTR-TIRC-MIN000001-000252 at 0184 (JD 093292); 681879254-9715 at 9393 (U.S. 21020).

139. In the 1970s, Defendants discussed the need for even closer cooperation between CTR and the Tobacco Institute. William Kloepfer and Fred Panzer, Tobacco Institute Vice Presidents, proposed specific guidelines to assist CTR Chairman Henry Ramm select a new Scientific Director for CTR. TIMN0004138-4141 (U.S. 87588). The Tobacco Institute Executive Committee directed Tobacco Institute President Horace Kornegay to *68 meet with Henry Ramm to discuss “closer cooperation between the Institute and the Council for Tobacco Research.” Kornegay reported, at the April 2, 1973 meeting of the Tobacco Institute membership and Board of Directors, that “CTR did desire closer cooperation with the Institute and that the scientific personnel of the Institute would be invited to attend the May 15, 1973 CTR meeting in New York.” LG20004570461 at 0459 (U.S. 21876).

140. After four months as CTR President, Addison Yeaman, chaired his first meeting of the CTR membership on December 10, 1975. He told the members that, “all the resources [of CTR], all the knowledge [of CTR], all the help that CTR can give, should be available to the lawyers, to the Tobacco Institute, and to any other of the troops in the field,” and that CTR should be independent but “independent within the policies set down by the membership.” 11303014-3020 (U.S. 86005); 682631405-1421 (U.S. 21025).

141. In its press releases, advertisements, brochures, and other materials, the Tobacco Institute publicized the substance of TIRC/CTR research and the aggregate amount of the funds spent, as well as the amounts contributed by the industry ■ in order to influence the public’s perception of the industry’s concern about cigarette smoking and health. Duffin PD, Cipollone v. Liggett, 1/23/86, 108:15-20; see, e.g., 502644592-4616 at 4615-4616 (U.S. 20703); 2015046793-6839 at 6828 (U.S. 25526).

142. A 1970 Tobacco Institute ad in the Washington Post discussed CTR grants totaling over $17 million under the heading “After millions of dollars and over 20 years of research: The question about smoking and health is still a question.” TIMN0081352 (U.S. 21305); 500004807-4809 (U.S. 20608). A 1975 Tobacco Institute press release promoting its booklet “The Cigarette Controversy,” an outline of doubts about the health risks of smoking, noted the industry’s commitment of “$50 million to help support researchers who are seeking the truth.” TIMN0120638-0639 (U.S. 21698). In 1981, 1982, and 1984, Tobacco Institute brochures providing publicity for CTR funding of research were titled respectively “Tobacco Industry Research on Smoking and Health: A $104 Million Commitment,” 2046754709^1719 (U.S. 20474); “Tobacco Industry Research on Smoking and Health: A $111 Million Commitment,” 670500617-0620 (U.S. 20968); and “Tobacco Industry Research on Smoking and Health: A $120 Million Commitment.” 2045377870-7876 (U.S. 20460).

143. One Tobacco Institute advertisement that ran in major newspapers and magazines throughout the country consisted of a photocopy of a February 1969 CTR press release, 7790233983400 (U.S. 36484), quoting CTR’s Scientific Director, Clarence Cook Little, with a headline declaring “How Much is Known about Smoking and Health.” TIMN0000560-0561 (U.S. 21874) (ad in Broadcasting); 1005132848-2849 (U.S. 20222) (ad in New York Times); TIMN0081695-1696 (U.S. 21308) (ad in February through April 1969 magazines and newspapers). The General Counsel of Philip Morris, Reynolds, B & W, Lorillard, and Liggett were asked to, ánd did, approve the running of the advertisement. 1005153098-3099 (U.S. 20227); TIMN0081698-1698 (U.S. 21309).

144. In a November 1962 interview on a Mutual Broadcasting System radio show discussing “Cigarette Smoking and Lung Cancer,” Tobacco Institute President George Allen explained that the Tobacco Institute supported smoking and health research

through a sister organization, the Tobacco [Industry] Research Committee, which has done more investigation in the *69 eight years since it was established than any other private scientific organization or medical organization in the specific subject of lung cancer ... over 100 individual grants ... over five million dollars.

When asked about statistical studies which seemed to implicate smoking and disease, Allen replied with the Defendants’ position that

[tjhese statistical studies add up to the need for further intensive scientific work on the subject ... nobody knows what causes cancer ... this is a matter that remains to be found by thorough and energetic scientific investigation.

500052010-2018 at 2010-2011 (U.S. 63600); Brandt WD, at 114:7-115:7.

145.Leonard Zahn, TIRC/CTR’s public relations counsel, maintained close ties with the Tobacco Institute and served as a liaison between the two organizations. He kept in close touch with William Kloepfer at the Tobacco Institute, “advising [Kloep-fer] in advance about meetings and other situations that might create a problem,” such as an article or meeting “dealing with an adverse report on smokers.” Zahn PD, Cipollone v. Liggett, 12/18/86, 408:5-409:19. Zahn sent carbon copies of his CTR reports to the Tobacco Institute; spoke at sessions of the Tobacco Institute College of Tobacco Knowledge; and was a member of the Tobacco Institute Communications Committee. Duffin PD, Cipollone v. Liggett, 1/23/86, 87:12-88:2; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 145:14-146:11, 149:25-150:10; TI04962331-2334 (U.S. 86167); TI04962389-2389 (U.S. 62201); TI04962390-2398 (U.S. 62202); TIFL0068387-8387 (U.S. 77028); Zahn PD, Cipollone v. Liggett, 12/16/86, 129:13-15, 18, 21-23, 130:1-3, 12-19, 130:22-131:2, 188:24-189:6; Zahn PD, Cipollone v. Liggett, 12/17/86, 274:2-8, 275:5-21; Zahn PD, Richardson v. Philip Morris, 12/1/98, 52:9-55:3, 275:17-276:6; Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14; Zahn PD, Richardson v. Philip Morris, 1/13/99, 837:6-21.

146. According to a 1969 letter, Robert Hockett, CTR’s Associate Scientific Director, was asked to review Tobacco Institute publications, such as “The Cigarette Controversy” and “Eight Questions and Answers,” and give suggestions for improvement. HK0108004 (U.S. 21171).

147. Members of CTR’s supposedly independent SAB, like Arthur Furst and Sheldon Sommers, appeared at Tobacco Institute press conferences to discredit mainstream scientific research. In an April 1970 briefing and update “on industry public relations in the field of smoking and health,” Jim Bowling of Philip Morris reported to Robert Heimann, President of American, about Tobacco Institute plans to hold a press conference on April 30, 1970, to discredit the Auerbach-Hammond beagle study (discussed further at Section III(F)(3)a337-342), infra). The spokesmen for the industry were to be CTR’s Arthur Furst and Sheldon Sommers who would “take a stand against the ACS [American Cancer Society] propaganda approach to ‘science.’ ” 9660009760977 (U.S. 86084).

148.The Tobacco Institute invited Sheldon Sommers to testify before Congress on behalf of the industry. Sommers PD, Galbraith v. Reynolds, 9/4/85, 58:25-59:10. Leonard Zahn at TIRC/CTR-edited the testimony that Sommers gave before Congress into a magazine article for American Druggist. Zahn PD, Cipollone v. Liggett, 12/17/1986, 223:12-224:11, 224:16-224:16, 225:7-225:12; Sommers PD, Cipollone v. Liggett, 10/3/86, 276:11-18; Sommers PT, Cipollone v. Liggett, 4/20/88, 8890:18-8890:25. The article titled “Smoking and Health: Many Unanswered Questions” was published in the September 1970 issue *70 of American Druggist. The editor’s note identified author Sheldon Sommers as Chairman of the SAB. ZN16062-6065 (U.S. 21161); CTRMN015361 (U.S. 79869); CTRMN015362-5365 (U.S. 79870); CTRMN015384-5387 (U.S. 79879); CTRMN015389 (U.S. 79881).

149. In 1974, William Kloepfer, Tobacco Institute Vice President for Public Affairs, conducted filmed interviews with several CTR-affiliated persons on issues related to smoking and health. The opinions of the CTR-affiliated persons were unanimously supportive of the Enterprise’s positions on smoking and health issues, although both individuals claimed to be expressing their own individual personal opinions. Sheldon Sommers, CTR’s Association Scientific Director and SAB Chairman, stated that “there is no sound evidence that smoking is harmful to the health of the nonsmoker.” Domingo Aviado, CTR Special Project funding recipient, stated that “on the basis of existing scientific evidence, tobacco smoke, I think, constitutes no health hazard to normal nonsmokers in public places.” Robert Hockett, CTR’s Scientific Director at that time, stated that “it just seems to me there is no justification for any general laws with respect to the protecting of nonsmokers from smoke.” TITX0001450-1455 (U.S. 77110).

150. The Tobacco Institute failed to identify scientists as recipients of CTR Special Project funding and/or Lawyers Special Accounts funding (discussed further at Section (III)(E)(2 — 3), infra), when incorporating their statements and conclusions in press releases and other publications as those of supposedly independent researchers or research results. TIMN0120737-0738 (U.S. 87601) (1982 press release challenging cigarette package warning, quoting Sterling); TI12431636-1650 (U.S. 62384) (1984 review of medical/scientific testimony presented to Congress titled “The Cigarette Controversy: Why More Research Is Needed,” quoting Aviado, Bick, Bing, Blau, Eysenck, Fisher, Furst, Hickey, Rao, Salvaggio, Seltzer, Sterling); MNAT00224317-4354 (U.S. 21223) (1978 brochure titled “The Smoking Controversy: A Perspective,” quoting Seltzer, Feinstein, Aviado, Sterling, Huber); TNWL0019638-9640 (U.S. 21703) (1983 press release opposing cigarette package warnings, quoting Blau, Fisher, Eysenck, and CTR’s Scientific Director Sommers), TIMN0138444-8446 (U.S. 85362), TIMN0120772-0773 (U.S. 85363), (U.S. 87625); TIMN0125189-5189 (U.S. 77065) (1988 press release disputing Surgeon General Koop’s statement that cigarette smoking was addictive and quoting Blau).

3. Tobacco Institute Press Releases, Public Statements, Advertisements, Brochures, and Other Publications

151.During its existence, the Tobacco Institute was the leading public voice of the Defendants. Chilcote PD, Minnesota v. Philip Morris Inc., 9/18/97, 27:5-28:6, 30:16-20; Merryman PD, Richardson v. Philip Morris Inc., 56:17-57:5; 60:1-15. To further the Enterprise’s goals, the Tobacco Institute created, issued, and disseminated press releases, public statements, advertisements, brochures, pamphlets, and other written materials on behalf of Defendants (1) denying that there was any link between smoking and disease; that nicotine was addictive; that cigarette companies marketed to youth; and that environmental tobacco smoke (“ETS”) posed a health risk; and (2) discrediting scientists and public health officials who took a different position on these issues (See e.g., Section V(A)(5)(c), infra). Dawson TT, 1/12/05, 9927:11-9928:18; Dawson WD, 34:5-7, 36:813, *71 37:4-9, 64:20-23, 65:1-7, 71:12-16, 80:17-23, 81:1-7, 81:13-16, 84:18-19; 87:6-11, 89:1-5, 89:14-19; Chilcote PD, Broin, 11/19/93, 25:8-26:17, 27:15-28:15; Merry-man PD, Broin, 11/18/93, 27:18-22; USX6390001-0400 (U.S. 89555); TIMN0081352-1352 (U.S. 21305), (U.S. 63572); TIMN0081695-1696 (U.S. 21308); TIMN0053170-3176 TIMN333361-3363 MNAT00276115-6117 TIMN0120725-0726 TIMN0120727-0728 TIOK0034156^181 TIMN0120729-0730 TIMN01207310732 TIMN0120733-0734 TIMN0120735-0736 TIMN0120737-0738 TIMN0120742-0742 TIMN0120743-0743 TIMN0120745-0745 TIMN012046-0746 TIMN0120747-0747 TIMN0120748-0748 TIMN0120750-0750 TIMN01207510751 TIMN0120752-0752 TIMN0120753-0753 TIMN0120754-0754 TIMN0120755-0755 TIMN0120756-0757 TIMN0120758-0759 TIMN0120760-0760 TIMN0120763-0764 TIMN0120768-0769 TIMN0120770-0771 TIMN01207720773 TIMN0131860-1861 TIMN0081712-1713 TIMN0081714-1714 TIMN0000471-0495 TIMN0133954-3960 TIMN0133707-3711 TIMN0076952-6961 TIMN0122571-2573 TIMN0122574-2576 (U.S. 65600); (U.S. 78730); (U.S. 87665); (U.S. 87596); (U.S. 87597); (U.S. 63019); (U.S. 65625); (U.S. 87598); (U.S. 87599); (U.S. 87600); (U.S. 87601); (U.S. 87603); (U.S. 87604); (U.S. 87606); (U.S. 87607); (U.S. 87608); (U.S. 87609); (U.S. 87610); (U.S. 87611); (U.S. 87612); (U.S. 87613); (U.S. 87614); (U.S. 87615); (U.S. 87616); (U.S. 87617); (U.S. 87618); (U.S. 87621); (U:S. 87623); (U.S. 87624); (U.S. 87625); (U.S. 21744); ' (U.S. 87629); (U.S. 87630); (U.S. 87631); (U.S. ■ 62653); (U.S. 87634); (U.S. 87635); (U.S. 87637); (U.S. 87638); TIMN0122577-2578 (U.S. 87639); TIMN01207060708 (U.S. 87640); TIMN0131847-1847(U.S. 87641); TIMN0120619-0619 (U.S. 87642); TIMN0120618-0618 (U.S. 87643); TIMN0109576-9576 (U.S. 87644); TIMN0004099^1099 (U.S. 87646); MNAT00275488-5498 (U.S. 87667); TIMN0120792-0793 (U.S. 87668); (no bates) (U.S. 21239); 2025422955-2958 (U.S. 89306); TI 1016-1258 (U.S. 89307); TI1016-1261 (U.S. 89308); TI 1016-1297-1298 (U.S. 89309); 507789709-9710 (U.S. 89310); TIDN 0012098-2099 (U.S. 89311); TIDN ' 0005825-5826 (U.S. 89312); 506649098-9099 (89313); 507610852-0853 (U.S. 89314); TIMN334986^4988 (U.S. 89315); 507793570-3571 (U.S. 89316); 877161722-1723 (U.S. TIMN354292-4294 (U.S. 89317); bates) 89320); bates) 89291); bates) 89294); bates) 89298); bates) 89301); bates) 21286); bates) 85150); (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. 89319); bates) 89290); bates) 89293); bates) 89296); bates) 89300); bates) 89321); bates) 87735); (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no 89318); bates) 89289); bates) 89292); bates) 89295); bates) 89299); bates) 89302); bates) 21363); bates) (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. (no (U.S. TI0720452-0464 (U.S. 87155*).

152. There is no question that the Tobacco Institute intended the public to rely on the public statements the organization made on behalf of its cigarette manufacturer members. Dawson TT, 1/12/05, 9930:2-18; Merryman PD, Minnesota v. Philip Morris, 7/15/97, 36:11-24, 38:15-17, 70:24-71:4. As already noted, the Tobacco Institute’s public spokespersons appeared on various television shows broadcast on all major networks in all fifty U.S. states. Merryman PT, Minnesota v. Philip Mor *72 ris, 2/6/98, 2717:22-2718:21; USX6390001-0400 (U.S. 89555). Brennan Dawson, Vice President of Public Relations for the Tobacco Institute and one of its major spokespersons, stated that she, on behalf of the Tobacco Institute, intended the public to rely on the public statements she made on television, regardless of whether the statements she made were in response to questions posed by the media or were spontaneous statements she volunteered to the media. Walker Merryman, another long-time Tobacco Institute spokesperson, similarly stated that the Tobacco Institute intended the public to believe its public statements. Dawson TT, 1/12/05, 10110:1-6; Merryman PD, Minnesota v. Philip Morris, 7/15/97, 113:5-8, 113:15-114:11, 114:15-16, 125:11-19, 153:9-19, 155:6-11, 186:2-25, 189:14-20, 193:22-194:1, 202:19-23; 2025422955-2958 (U.S. 89306); TI 1016-1258 (U.S. 89307); TI1016-1261 (U.S. 89308); TI 1016-1297-1298 (U.S. 89309); 5077897099710 (U.S. 89310); TIDN 0012098-2099 (U.S. 89311); TIDN 0005825-5826 (U.S. 89312); 5066490989099 (U.S. 89313); 507610852-0853 (U.S. 89314); TIMN334986-4988 (U.S. 89315); 507793570-3571 (U.S. 89316); 877161722-1723 (U.S.' 89317); TIMN354292-4294 (U.S. 89318); 502823717-3718 (U.S. 50255); TIMN347391-7398 (U.S. 65675); (no bates) (U.S. 89319); (no bates) (U.S. 89320); (no bates) (U.S. 89289); (no bates) (U.S. 89290); (no bates) (U.S. 89291); (no bates) (U.S. 89292); (no bates) (U.S. 89293); (no bates) (U.S. 89294); (no bates) (U.S. 89295); (no bates) (U.S. 89296); (no bates) (U.S. 89298); (no bates) (U.S. 89299); (no bates) (U.S. 89300);. (no bates) (U.S. 89301); (no bates) (U.S. 89302); (no bates) (U.S. 89321); (no bates) (U.S. 21286); (no bates) (U.S. 21363); (no bates) (U.S. 87735); (no bates) (U.S. 85150); TI0720452-0464 (U.S. 87155*).

153.However, when asked about public scientific support for the public statements she was making on behalf of the Tobacco Institute, Brennan Dawson could not name a single public health organization that asserted, as did the Tobacco Institute, that it had not been proven that smoking caused disease during the time she was a spokesperson on behalf of the Tobacco Institute. Dawson WD, 76:8-11. Nor could Ms. Dawson name a single medical doctor, not associated with the tobacco industry, who took the position that it was not proven that smoking caused disease. Dawson WD, 76:12-15. Similarly, Walker Merry-man, also a Tobacco Institute spokesperson for over twenty years, could not name a single medical doctor not affiliated with the tobacco industry who publicly took the position that there was some medical doubt as to whether smoking caused disease. Merryman PD, Broin, 28:6-29:2.

154. The function of the Public Relations Division of the Tobacco Institute was

to represent our member companies with the press, general public, anyone who had a question about tobacco, specifically the smoking and health issue, but also economics, history. We represented all the companies, so that no one of them had to answer questions from a press person or stock analyst.

Duffin PD, Munn v. Philip Morris, 1/7/87, 93:21-94:5; Chilcote PD, Minnesota v. Philip Morris, 9/18/97, 27:5-28:6, 30:16-30:20. In other words, according to Tobacco Institute Vice President Brennan Dawson, the objectives of the Public Relations Division were “to make public statements and to provide the tobacco industry’s point of view, not just one company’s, but an industry-wide point of view on matters relating to tobacco.” Dawson WD, 34:4-7; 34:13-15.

155. A May 1, 1972 memorandum from Fred Panzer, a public relations specialist with the Tobacco Institute, to Tobacco In *73 stitute President Horace Kornegay began by describing past industry action:

For nearly twenty years, this industry has employed a single strategy to defend itself ... it has always been a holding strategy, consisting of creating doubt about the health charge without actually denying it, advocating the public’s right to smoke without actually urging them to take up the practice ... encouraging objective scientific research as the only way to resolve the question of health hazard.

Panzer went on to discuss a proposed public relations campaign — The Roper Proposal — designed to persuade the public that “[cjigarette smoking may not be the health hazard that the anti-smoking people say it is because other alternatives are at least as probable” (emphasis omitted). The proposed campaign would suggest two such possible alternatives: (1) the constitutional hypothesis, i.e., smokers differ importantly from nonsmokers in terms of heredity, constitutional makeup, lifestyle, and stress; and (2) the multi-factorial hypothesis, i.e., other factors such as air pollution, viruses, food additives, and occupational hazards contribute to diseases for which smoking is considered a cause. TIMN0077551-7554 at 7551-7553 (U.S. 63585); 87657703-7706 (U.S. 21098), (U.S. 79218); Brandt TT, 125:2-127:10; Panzer PD, Small v. Lorillard, 10/22/97, 206:16-207:20; Panzer PD, Iron Workers v. Philip Morris, 12/18/98, 18:22-21:12; USX6390001-0400 (U.S. 89555) (TI Response to Request for Admission Nos. 242, 243).

156.In order to issue public statements regarding smoking and health, the Tobacco Institute contracted with numerous scientists to conduct research on related issues. Such consultants included Salvatore DiNardi, Gio Gori, Larry Holcomb, Alan Katzentein, Peter Lee, Maurice Le-Vois, Mark Reasor, Sorell Schwartz, Murray Senkus, David Weeks, Lawrence Wex-ler, Philip Witorsch, and Ray Witorsch. WAX001 1075-1127 at 1084 (U.S. 64758) (TI Response to Interrogatory No. 8).

157.During the twenty-one years that Anne Duffin, and the twenty-two years that Walker Merryman, worked for the Tobacco Institute’s Public Affairs Division, they prepared many of the Tobacco Institute publications that disputed the existence of any link between smoking and disease; that nicotine was addictive; that cigarette companies marketed to youth; and that Environmental Tobacco Smoke (“ETS”) posed a health risk. Titles of such publications include, but are not limited to: Cigarette Smoking and Heart Disease; Cigarette Smoking and Cancer: A Scientific Perspective: Smoking and Health, The Continuing Controversy 1964-1979; On Tobacco: 21 Questions and Answers; The Cigarette Controversy, Eight Questions and Answers; About Tobacco Smoking: Smoking and Women; and Vital Statistics — How Accurate Are They? Duffin PD, Munn v. Philip Morris, 1/7/87, 64:22-65:6, 95:11-97:1, 100:10-102:8, 102:14-103:1, 113:8-21, 114:1-15, 20-24, 121:1-122:24, 123:3-15, 126:3-127:19, 133:21-135:12, 136:15-19, 139:5-140:3, 141:2-10; Duffin PD, Cipollone v. Liggett, 1/23/86, 63:10-64:16; Merryman PD, Minnesota v. Philip Morris, 7/16/97, 317:13-22; 519838352-8517 (U.S. 87707); 519838518-8621 (U.S. 87708); 519838622-8674 (U.S. 87709); TI01071639 (U.S. 62099); 2501112047-2098 (U.S. 20561); 2025431644-1748 (U.S. 20417); TIMN0121541-1558 (U.S. 65632); TIMN0055304-5330 (U.S. 62816); TIOK0027221-7226 (US 77109); 1005152849-2896 (U.S. 20226); TIMN300233-0257 (U.S. 65670); TIMN0121622-1646 (U.S. 65626).

158.Over the years, the Tobacco Institute attempted to discredit many of the *74 Surgeon General’s Reports through its public statements, press conferences and other publications. Merryman PD, Kueper v. R.J. Reynolds, 6/26/92, 19:12-21:2; Kornegay PD, Cipollone v. Liggett, 12/6/94, 683:4-687:6; Duffín PD, Munn, 1/7/87, 100:10-102:8, 102:14-103:1, 111:10-112:9, 117:625; TIMN0125189 (U.S. 67277); TLT0390022-0024 (U.S. 76770). For example, a “personal and confidential” Lorillard memorandum dated January 8, 1979 from Curtis H. Judge to J. Robert Ave and Arthur J. Stevens, all high corporate officials of Defendants, related a January 5, 1979 conversation that Judge had with Alexander Spears of Lorillard and another conversation with Bill Kloepfer of the Tobacco Institute:

Dr. Spears surmises that this carbon monoxide information may be the new “bombshell” part of the Surgeon General’s report and the part of the report which is new and likely to attract the media. At 4:30 on Friday afternoon I talked with Bill Kloepfer at the Tobacco Institute and he had just learned of this information a few hours ago (about the same time we did) on what he described as an “intercept.” He agrees with our conclusions as to how it will be used in the Surgeon General’s report and the Institute will work on counteracting it. I promised that we would get the information to him should we receive it before he does.

85158126-8127 at 8126-8127 (U.S. 56009).

159.The Enterprise’s concern about the substance of the 1983 Surgeon General’s Report was a constant theme throughout the Tobacco Institute’s documents for months before the report was ever published. As early as July 1, 1982, “the Scientific Affairs Division was in the process of devising strategies to counter the 1983 Surgeon General’s Report.” TI0396-1863-1866 at 1863 (U.S. 62157). Before the Surgeon General’s Report was even made public,

Sam Chilcote ... asked that [the Tobacco Institute] take certain steps to blunt the impact of the 1983 Surgeon General’s report on the ground that, as in the past, it will lack objectivity. We expect the subject to be smoking and heart diseases.

Specifically, the plans directed the Scientific Division

to prepare a relatively brief logical paper covering selected areas of inadequate knowledge and contradictions in the case for smoking as a cause of or risk factor in heart diseases.

The central role of legal counsel in the clearance process was also detailed in the memorandum:

Shook, Hardy will provide clearance of the paper and of its final format which will be developed by the Public Relations Division. At the same time the PR staff and PR counsel will prepare a list of media people who may be expected to cover the Surgeon General’s Report.

The following directive was issued by Klo-epfer: ‘When the Surgeon General’s Report is issued, the PR staff will stick to the TI position rather than commenting directly on the report.” TI039618601861 (U.S. 62156).

160. A document dated October 18, 1982, titled “Memorandum for the Record' — Subject: Planning TI’s Response or Planning to Meet the 1983 Surgeon General’s Report” detailed the entire chronology of this Tobacco Institute effort. TI03961863-1866 at 1863 (U.S. 62157)..

161. At the December 9, 1982 Tobacco Institute Board of Directors meeting, Tobacco Institute President Samuel D. Chil-cote, Jr., discussed the Institute’s approach to the upcoming 1983 Surgeon General’s Report. The Tobacco Institute’s *75 plans included personally passing out summaries of its document on “Smoking and Cardiovascular Disease” to several dozen reporters; having George Schafer, Tobacco Institute Medical Director, on hand to answer the reporters’ questions and lend credibility; holding its “own press conference a day or so before the Surgeon General’s press conference challenging the contention that smoking causes cardiovascular disease,” with Shook, Hardy & Bacon providing assistance; and attempting to “encourage a non-tobacco state congressman to launch an investigation into MRFIT [Multiple Risk Factor Intervention Trials] shortly before the Surgeon General’s conference,” alleging that it was a waste of 115 million tax payers’ dollars, “thereby putting the Surgeon General on the defensive.” TIMN0017276-7303 (U.S. 86118).

162. A January 11, 1983 memorandum detailing the monthly overview of the Tobacco Institute’s Scientific Affairs Division listed as its first “key” item the “[preparation and refinement of Institute’s response to the 1983 Surgeon General’s forthcoming report on heart disease.” TI03962431-2432 at 2431 (U.S. 62160).

163. Similarly, the Tobacco Institute was very active in planning a response regarding the release of the 1987 Surgeon General’s Report which discussed the addictive nature of smoking. Dawson WD, 21:21-22:7. Suggested strategies for the Tobacco Institute response and the public’s potential reaction were carefully considered. TIMN34639-9639 (U.S. 62752); TIMN349632-9633 (U.S. 62751). Samuel Chilcote wrote informational memoranda about the Surgeon General’s Reports for distribution to the Tobacco Institute Executive Committee. See, e.g., TINY 0009385-9387 (U.S. 58830) (1992 Surgeon General’s Report). Brennan Dawson, Vice President of Public Relations for the Tobacco Institute, also made a presentation at a 1988 Tobacco Institute Communications Committee meeting, about her plans to distribute editorials favorable to the industry about the 1987 Surgeon General’s Reports to editorial writers. Dawson also invited additional distribution suggestions from Communications Committee members. Dawson WD, 21:21-22:7, see Section 111(D)(4)(c), infra for detailed discussion of the Tobacco Institute Communications Committee.

164.In anticipation of the 1989 Surgeon General’s Report, the Tobacco Institute launched its “Enough is Enough” campaign which included

national advertising efforts in 19 newspapers, a new public opinion poll, a comprehensive tobacco issues brief, and a video with smokers and nonsmokers expressing their opinions on the anti-smoking movement.

TI09911581-1615 at 1601 (U.S. 62252); 507635309-5348 (U.S. 66484); Dawson WD, 66:14-69:22. The Tobacco Institute launched a major media campaign, distributing materials and information to some 2,500 reporters, conducting a private briefing for the Washington, D.C. press corps, and distributing both television and radio satellite press releases, all with the aim of publicly discrediting the forthcoming Surgeon General’s Report. Dawson WD, 66:14-69:22; TI0991 1581-1615 at 1601 (U.S. 62252). Tobacco Institute documents indicate that the Tobacco Institute believed its efforts were worthwhile since the first question the Surgeon General received at his press conference releasing his 1989 Report was generated by the “Enough is Enough” campaign. TI0991 1581-1615 at 1601 (U.S. 62252); Dawson WD, 66:14-69:22.

165.Attorneys representing Defendants again played a major role in these efforts to discredit the Surgeon General’s *76 Reports and attack other scientific research linking smoking and disease. They meticulously edited and rewrote drafts of Tobacco Institute advertisements, articles, and public statements. Lawyers regularly recommended ideas for articles and provided materials to the Tobacco Institute for consideration. 1005134430-4432 (U.S. 36107); 508089329-9329 (U.S. 86089).

166. In a July 6, 1977 memorandum to William Kloepfer of the Tobacco Institute, attorney Donald Hoel of Shook, Hardy & Bacon significantly changed the draft of an article titled ‘Why theCase Against Smoking is Not Closed” and recommended a “major rewriting effort.” Hoel also expressed dissatisfaction that attorneys had not previously had the chance to review the article. He wrote that

it would be beneficial and time-saving if the content of such material as the proposed article could be first “cleared” with the appropriate persons at the Tobacco Institute before an “approved” draft is sent here for legal clearance.

Hoel went on to recommend that the lawyers be given advance notice of such articles so they could “make suggestions and provide materials for consideration.” TIMN262629-2629 (U.S. 62734).

167. The Tobacco Institute also worked with its public relations counsel and its member companies to anonymously disseminate deceptive and misleading public statements, such as the True magazine article, to promote the sale of cigarettes. CTRMN 015575-15593 (U.S. 79902); Zahn PD, Cipollone v. Liggett, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:22-25, 361:3-8, 17-22. Joseph Fields, a public relations agent for B & W, arranged for a reporter named Stanley Frank to write a smoking and health article, titled “To Smoke or Not to Smoke — That Is Still The Question,” which appeared in the January 1968 issue of True magazine. In the article, Frank stated that he had reviewed the evidence and found it contradictory and inconclusive; he concluded that the hazards of cigarette smoking were not so real as the public had been led to believe. TIMN462375-2380 (U.S. 21660). Frank did not disclose that he had been paid $500 by the Defendants for his time and expenses in writing the article and had been guaranteed another $1250 in the event that it was not published; that tobacco industry representatives including Ed Jacob of Jacob & Medinger, attorneys for TIRC, had reviewed the article prior to publication; or that he worked for Hill & Knowlton. 690012994-2993 (U.S. 54322); Zahn PD, Cipollone, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:22-25, 361:3-8,17-22.

168. Furthermore, one of the Tobacco Institute’s public relations agencies, The Tiderock Corp., had arranged to run a one-half-page advertisement promoting the True article titled “Are Cigarettes Really Harmful to Your Health?” The advertisement ran in the top seventy-two markets in the United States at an estimated cost of $69,000 paid for by Defendants Philip Morris, Reynolds, B & W, American, and Lorillard. The public did not become aware of these facts until the information was revealed in a series of investigations by the Wall Street Journal, Consumer Reports, and Senator Warren Magnuson. Zahn PD, Cipollone, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:2225, 361:3-8, 17-22; TIMN462375-2380 (U.S. 21660); TIMN0123336-3336 (U.S. 21628).

169. In addition to its press releases and publications, the Tobacco Institute regularly published various newsletters to further publicize its viewpoint on behalf of the Enterprise. TIMN339121-9128 at 9121 (U.S. 86127); TINY 0009385-9387 (U.S. 62964); 947089976-9979 (U.S. 32332); TI16300337-0345 (JE 062448). In May 1976, the Tobacco Institute published its *77 first issue of its most widely distributed newsletter, The Tobacco Observer. The public purpose of the newsletter, as stated in the first issue, was to “enable ‘thousands’ whose livelihoods are associated with tobacco ‘to be well informed about the problems facing tobacco.’ ” The Tobacco Observer was published bi-monthly from 1976 until December 1988, under the supervision of the Tobacco Institute’s Special Projects. 690018786-8786 (U.S. 86119); TIOK0015372-5378 at 5373 (U.S. 86126); TIMN366674-6895 at 6864 (U.S. 86120).

170.The Tobacco Institute circulated The Tobacco Observer free of charge to company employees, broadcasters, newspapers, and individuals. At the early stages of publication, the Tobacco Institute requested and received lists of names and addresses of potential subscribers from the tobacco companies. In 1978, the Tobacco Institute calculated circulation to have reached 80,000 and by 1988 circulation had almost doubled to 145,000. Most subscriptions, however, were unsolicited. According to a June 1, 1987 memorandum from Anne Duffin to Peter Sparber, “TTO [The Tobacco Observer] subscribers, some dating back 11 years, have never been asked if they want copies. Most were added to the subscription list by Institute staff through personal contact or tobacco group rosters!.]” 670059500-9506 at 9503 (U.S. 86121); 690019767-9767 (U.S. 86122); 680549177-9182 at 9179 (U.S. 86123); TIOK0015372-5378 at 5372 (U.S. 86126).

171.Articles in The Tobacco Observer perpetuated the Enterprise’s denials of causation and harm from smoking. One headline announced, “Smoke not harmful to average non-smoker” (October 1978). In the May 1976 issue, one headline read “No Simple Answers; Research Disputes UPI;” this article followed another that stated, “no cause and effect relationship between cigarette smoking and pulmonary emphysema has been established.” In a June 1, 1987 memorandum, Anne Duffin wrote candidly about The Tobacco Observer:

Historically TTO [The Tobacco Observer] has related good news only, presenting the bad only in its most optimistic context ... TTO’s purpose was to inform, to cast favorable light upon tobacco’s many controversies.

03048388-8399 at 8388 (U.S. 86124); TIMN0127465-7475 at 7467 (U.S. 86125); TIOK0015372-5378 at 5373 (U.S. 86126).

4. Tobacco Institute Committees

172. The Tobacco Institute was run by a variety of committees, comprised of representatives and agents from Defendants Philip Morris, Lorillard, Liggett, Reynolds, and B & W, and employees from Defendant Tobacco Institute. The most influential and powerful of these were the Tobacco Institute Committee of Counsel, the Tobacco Institute Executive Committee, and the Tobacco Institute Communications Committee.

a. Committee of Counsel and Outside Counsel

173. The Tobacco Institute Committee of Counsel was comprised of the general counsels of the sponsoring companies of the Tobacco Institute — Philip Morris, Reynolds, Lorillard, Liggett, and B & W— as well as counsel for American. 85686131-6131 (U.S. 87589) (Lorillard); 10051478077807 (U.S. 36119) (Philip Morris); 03654362-4362 (U.S. 29296) (Reynolds); 517004087-4090 (U.S. 20874) (B & W); LG2014927-4931 (U.S. 86090) (Lig-gett); 681725305-5307 (U.S. 21019) (American); Stevens WD, 2:18-22, 5:1-11, 5:12-23; Juchatz TT, 11/18/04, 06545:11-06546:2; Kornegay PD, Small v. Lorillard, 11/18/97, 34:11-18. Representatives from Philip Morris Companies also were members of the Committee of Counsel, and *78 some Committee of Counsel meetings were held at Philip Morris Companies headquarters in New York. Northrip WD, 8:14-8:5; 2023033745-3745 (U.S. 87590); 2023033795-3795 (U.S. 87591). Members of the Committee of Counsel also included attorneys from the outside law firms of Covington & Burling, Jacob Medinger & Finnegan, and Shook, Hardy & Bacon. WAX0011075-1127 at 1088-1093 (U.S. 64758); Hoel PD, United States v. Philip Morris, 6/27/02, 71:17-22; 521043046-3050 (U.S. 20891); 680038350-8352 (U.S. 20980); Stevens WD, 5:1-11; Stevens TT, 01278:10-01280:1.

174. The purpose of the Committee of Counsel meetings was to discuss legal issues related to the tobacco industry and to provide legal advice on any matter that member companies would bring before it. Northrip WD, 8:11-13.

175. The importance of the Committee of Counsel was described in an October 1964 trip report written by visitors from Britain’s Tobacco Research Council:

The leadership in the U.S. smoking and health situation therefore lies with the powerful Policy Committee of senior lawyers advising the industry, and their policy, very understandably, in effect, is “don’t take any chances.” It is a situation that does not encourage constructive or bold approaches to smoking and health problems, and it also means that the Policy Committee of lawyers exercises close control over all aspects of the problems.

1003119099-9135 (U.S. 20152).

176. The primary function of the Committee of Counsel within the Enterprise was described in a document prepared by Ernest Pepples, General Counsel for B & W:

[T]he primary function of this Committee of Counsel has been to circle the wagons, to coordinate not only the defense of active cases, but also to coordinate the advice which the General Counsels give to ongoing operations of their companies pertaining to products liability risks.

517004087-4090 (U.S. 20874).

177.The Committee of Counsel met frequently over the years and the agenda of its meetings covered a wide range of topics that were of concern to the Defendants. Typical items discussed included various smoking and health related issues including addiction, industry witness development (especially in the area of ETS), Special Projects, Special Accounts, CTR’s Literature Retrieval Division, review of the Tobacco Institute’s ads, institutional research, and smoking and health litigation generally. Stevens WD, 6:10-12, 6:13-21; Northrip WD, 8:11-13; 680239427-9429 (U.S. 30835); 03654134-4134 (U.S. 29291); 85686132-6132 (U.S. 87592); 85686235-6236 (U.S. 87593); 85685497-5497 (U.S. 32030); 03654220-4220 (U.S. 29293); 03654179-4180 (U.S. 87594); 5037627682768 (U.S. 86093); 03654341-4342 (U.S. 29295); 03654327-4328 (U.S. 29294); 85685745-5745 (U.S. 86094); 503689705-9705 (U.S. 86095); 85682380-2381 (U.S. 32023); 1005085870-5870 (U.S. 35994); LG2005471-5473 (U.S. 88096); 03654160^160 (U.S. 86097); 03746187-6190 (U.S. 86098); LG2008241-8242 (U.S. 21206); 03638986-8987 (U.S. 86815); 03746184-6185 (U.S. 20600); 2024671248-1255 (U.S. 21584); 1005121522-1526 (U.S. 23046); LDOJ2607427-7434 (U.S. 86099); BWX0004268-4274 (U.S. 36225); 03601453-1453 (U.S. 86102); 01333625-3625 (U.S. 26468); 03654139-4147 (U.S. 86103); XBW0011405-1416 (U.S. 86104); BWX0004264-4267 (U.S. 36224); 680542504-2505 (U.S. 86105); TIFL0407411-7411 (U.S. 22044); TIFL0407410-7410 (U.S. 22041); 681000290-0293 (U.S. 21015).

*79 178. Even when Liggett decided to cease participation in the Tobacco Institute as a Class A member, it continued to participate in the Committee of Counsel. In a September 21, 1993 letter from Liggett’s in-house counsel Josiah Murray to the Tobacco Institute’s President and Counsel, Liggett sought to reduce its payments to the Tobacco Institute, but at the same time sought Tobacco Institute approval to continue participating in the Tobacco Institute’s Committee of Counsel, and to have continued access to Tobacco Institute information and data, including reports and memoranda from Covington & Burling to the Committee of Counsel. In seeking these materials, Murray assured the letter’s recipients that Liggett would continue to conform its conduct in accordance with the Enterprise’s strategies, writing:

It is not the intent of Liggett to conduct its business in a manner adverse to the interest of the industry as a whole with respect to those legal and political issues as to which, by applicable law, the several competitor companies have a right to act in concert and in collaboration one with another, and attaining this objective is enhanced, of course by [Liggett] being adequately informed.

LWDOJ00023390-00023392 (U.S. 25910).

179. The role of outside counsel, as opposed to the in-house general counsels, including Shook, Hardy & Bacon, Jacob, Medinger & Finnegan and Covington & Burling, was to assist the Committee of Counsel. 03638986-8987 (U.S. 86815); Rupp WD, 38:21-39:19; Northrip WD, 6:1216; 6:22-6-1:25; Dawson WD, 15:15-21. As has already been mentioned, and will be further elaborated on infra, two of those law firms, in particular Covington & Burling, became the guiding strategists for the Enterprise and were deeply involved in implementation of those strategies once adopted.

180. Covington & Burling was counsel for the Tobacco Institute and was also described as counsel for the “industry.” 682150942-0942 (U.S. 86491); Rupp WD, 38:21-39:19. An attorney from Covington & Burling attended every meeting of the Committee of Counsel. Covington & Bur-ling attorneys first reviewed agenda proposals for the Committee of Counsel meetings before they were sent to member companies. Blixt PD, United States v. Philip Morris, 10/31/02, 159:20161:13, 169:13-170:1. Covington & Burling also cleared press releases issued by the Tobacco Institute. Merryman PD, Minnesota v. Philip Morris, 7/16/97, 414:21-415:2, 416:10-22.

181. Shook, Hardy & Bacon was counsel for Defendants Philip Morris, Philip Morris Companies, Lorillard, Reynolds, and B & W, and benefitted from a close association with Defendant Tobacco Institute. 521043046-3050 (U.S. 20891); TIMN0245637-5638 (U.S. 62723); 20150071997207 (U.S. 20311); Northrip TT, 9/30/04, 01334:19-01335:5; Kornegay PD, Cipollone v. Liggett, 8/17/84, 177:23-178:3, 179:5-21, 185:20-186:3. In fact, Robert Northrip, following his attendance at a Committee of Counsel Meeting, would normally bill either three or four tobacco companies (including Phillip Morris, Lorillard, B & W and possibly Reynolds) for his time. Northrip TT, 9/30/04, 01346:12-22; Northrip WD, 5:17-5-1:11.

182. In addition to John Rupp of Cov-ington & Burling serving as counsel for the Tobacco Institute and the “industry,” Shook, Hardy & Bacon- was also given a wide range of responsibilities for the Enterprise. In a May 18, 1982 memorandum, William Shinn of the firm described its activities relating to the Tobacco Institute and noted that it examined “most material emanating from the Tobacco Institute which has potential smoking and health *80 overtones.” This memorandum was addressed to Robert Sachs, Assistant General Counsel for B & W, and Arthur Stevens, Senior Vice President and General Counsel for Lorillard, and copied to Thomas Ahrensfeld, Senior Vice President and General Counsel for Philip Morris; Alexander Holtzman, Assistant General Counsel for Philip Morris; Ernest Pepples, General Counsel for B & W; and Samuel Witt, General Counsel for Reynolds. Since the firm’s review involved a great deal of give and take, it sometimes “prepared] the final version” of the product. Shook, Hardy & Bacon also assisted the Tobacco Institute in setting strategy, preparing witnesses on smoking and health issues, briefings, reviewing press releases, advertisements, and other public statements, and orchestrating follow-up activities. Shinn remarked: “While we are asked occasionally to do something that we believe T.I. should do itself, we have always reserved the right to decline unless directed by the Committee of Counsel.” 521043046-3050 (U.S. 20891).

183.Shook, Hardy & Bacon’s role was further explained in a June 28, 1988 memorandum from Donald Hoel of Shook, Hardy & Bacon to Todd Sollis, Associate General Counsel for Philip Morris Management Corporation. Hoel explained that

[b]eeause SHB represents several of those [cigarette] manufacturers and enjoys a close association with the TI, the firm is able to move freely among industry members, facilitating cooperation and open communication. In this way, SHB helps eliminate potential difficulties within the tobacco industry that could reduce PM’s ability to address effectively smoking and health issues and impair its defense of lawsuits.

2015007199-7207 (U.S. 20311); Northrip TT, 9/30/04, 01334:19-01335:5.

184.Jacob, Medinger & Finnegan was yet another law firm which played a major advisory role as counsel for Reynolds, B & W, and CTR. Edwin Jacob attended and gave presentations at Committee of Counsel meetings; he was also involved in the administration of CTR Special Projects (discussed further at Section 111(E)(2), infra). 680038350-8352 (U.S. 20980); 1005121522-1526 (U.S. 23046).

b. Tobacco Institute Executive Committee

185.The Tobacco Institute Executive Committee had the “final voice on TI matters” and Tobacco Institute statements. It included two representatives from each of the cigarette manufacturer member companies of the Tobacco Institute and had a rotating chairmanship. Chilcote PD, Richardson v. Philip Morris, 9/21/98, 92:21-97:2; Kornegay PD, Small v. Lorillard, 11/18/97, 25:13-29:1. The Executive Committee also set Tobacco Institute policy and determined resource allocation within the organization. Dawson WD, 10:13-11:2.

186.The Tobacco Institute Executive Committee met frequently to keep abreast of issues of common concern within the Enterprise. In addition to having final approval authority on all Tobacco Institute matters, the Executive Committee often discussed issues of joint industry research on smoking and health, research funded through CTR, and funding of Tobacco Institute advertising. Dawson WD, 11:3-6; Northrip WD, 8:11-13; Chilcote PD, Broin, 11/19/93, 34:5-35:5; 036771017103 (U.S. 29313); TIMN0013425-3428 (U.S. 88258); TIMN0013471-3476 (U.S. 88259); TIMN0013429-3431 (U.S. 88261); TIMN0013432-3435 (U.S. 88262); TIMN0013460-3464 (U.S. 88264); TIMN0013471-3476 (U.S. 88265); TIMN0013508-3513 (U.S. 88266); TIMN0013514-3517 (U.S. 88267); TIMN0013518-3251 (U.S. 88268); *81 TIMN0013526-13530 (U.S. 88269); TIMN00135543557 (U.S. 88270); TIMN13450-3454 (U.S. 88276); TIMN0013441-3445 (U.S. 88289); TIMN0013455 3456 (U.S. 88291); TIMN0013477-3484 (U.S. 88293); TIMN0013485-3489 (U.S. 88294); TIMN0013490-3495 (U.S. 88295); TIMN0013496-3499 (U.S. 88296); TIMN0013500-3507 (U.S. 88297); TIMN0013550-3553 (U.S. 88298); TIMN0013558-3563 (U.S. 88299); TIMN0013583-3589 (U.S. 88300); TIMN0013628-3632 (U.S. 88301); TIMN0013651-3655 (U.S. 88302); TIMN00136563659 (U.S. 88303); TIMN0014418-4425 (U.S. 88304); TIMN0017720-7722 (U.S. 88305); TIMN0017725-7729 (U.S. 88306); TIMN0017731-7736 (U.S. 88307); TIMN0018436-8439 (U.S. 88308); TIMN0018451-8455 (U.S. 88309); TIMN0018462-8466 (U.S. 88310); TIMN0018590-8593 (U.S. 88311); TIMN0019234-9239 (U.S. 88312); LG0237151-7159 at 7154 (U.S. 21194).

187. For example, the Tobacco Institute Executive Committee met on January-12, 1964, to discuss the implications of the 1964 Surgeon General’s Report on Smoking and Health. The Executive Committee agreed that it was “considered to be of prime importance that the industry maintain a united front and that if one or more companies were to conduct themselves as a matter of self interest, particularly in advertising, obvious vulnerability would be the result.” LG20082038210 (U.S. 22682).

188. A 1974 Tobacco Institute report titled “Defending Tobacco” stated that the Tobacco Institute Board of Governors’ adoption, in January 1971, of the Guidelines for Authority and Responsibility of the Tobacco Institute, had greatly improved the Tobacco Institute’s overall efficiency. The report established authority and responsibility of the Tobacco Institute’s staff and committees, placed more authority in its President, and required more frequent meetings of the Executive Committee to create and review Tobacco Institute policies, programs and objectives. The Guidelines eliminated much undue delay occasioned in the past in obtaining approval and authority from the Tobacco Institute Executive Committee or its Board members for Tobacco Institute action and improved the overall efficiency of the Enterprise. TIMN217628-7639 (U.S. 21263).

c. Tobacco Institute Communications Committee

189. The Tobacco Institute Communications Committee reviewed and approved Tobacco Institute advertisements, media plans, and public relations campaigns carried out by the Tobacco Institute on behalf of the Enterprise. Chilcote PD, Richardson v. Philip Morris, 9/21/98, 263:5-14.

190. Each Tobacco Institute member company designated its public relations people to attend meetings of the Communication Committee and to inform their respective companies about the activities of the Committee. Dawson WD, 17:9-23; Dawson TT, 1/12/05, 9899:20-9900:10; Duffin PD, Barnes v. American Tobacco, 10/6/97, 118:4-119:8, 119:7-121:2. Membership of the Communications Committee consisted of representatives of Reynolds, B & W, Phillip Morris, Lorillard, Liggett, and American, as well as outside lawyers from Shook, Hardy & Bacon and Coving-ton & Burling, Tobacco Institute public relations staff and CTR public relations counsel Leonard Zahn. Dawson TT, 1/12/05, 9899:20-9900:10; Zahn PD, Richardson v. Philip Morris, 12/1/98, 52:9-55:3; Zahn PD, Cipollone, 12/17/86, 274:2-8; 275:5-21; 794003131-3132 (U.S. 86107); TIMN0081843-1864 (U.S. 86108); 03678709-8711 (U.S. 88313); 680241704- *82 1705 (U.S. 54034); ZN21992-1995 (U.S. 21375); 690014846-4848 (U.S. 86111); TIMN0124674-4674 (U.S. 88323); TIMN0124717-4718 (U.S. 86113); 680570007-0008 (U.S. 86114); 87716615-6618 (U.S. 86117); TI16470337-0338 (U.S. 62449); TI09911543-1580 (U.S. 62251); TI09911581-1615 (U.S. 62252); TI09911885-1920 (U.S. 62255); TI09912151-2191 (U.S. 62256); TIMN345630-5665 (U.S. 77092); TIMN345741-5777 (U.S. 77093).

191.Members of the Communications Committee considered CTR a public relations benefit' for the Enterprise. According to minutes from the September 17, 1971 Communications Committee meeting, William Kloepfer, Vice President of the Tobacco Institute, briefed the committee on the status of industry-financed research, including research funded by CTR. Kloepfer called this research, “the best basis for affirmative public relations.” Leonard Zahn, public relations counsel to CTR from 1955 until 1993, was even a member of the Tobacco Institute Communications Committee and attended committee meetings at the behest of Kloepfer of the Tobacco Institute. TIMN0003978-3980 (U.S. 87595); Zahn PD, Cipollone, 12/16/86, 129:13-15, 18, 21-23; 130:1-3, 1219, 130:22-131:2; Zahn PD, Richardson, 12/1/98, 52:9-55:3; Zahn PD, Cipollone, 12/17/86, 274:2-8, 275:5-21.

192.A 1974 Tobacco Institute report titled “Defending Tobacco” stated that, prior to 1967, much of the communication between member companies was through the Tobacco Institute Committee of Counsel, or by informational memoranda. According to this report, one change that greatly facilitated the internal information flow within the Enterprise was the creation in 1969 of the Communications Committee, which was made up of representatives of each major company and of the Tobacco Institute’s legal counsel and who met frequently to advise on the Tobacco Institute’s public relations strategy. TIMN217628-7639 (U.S. 21263).

193. Through these Tobacco Institute committees, the Defendants, through their executives, employees, agents, and attorneys, controlled the Tobacco Institute and set its policy, including approving and authorizing the multitude of statements made by the Tobacco Institute about smoking and health. While this structure changed somewhat over time, Defendants always maintained control over the Tobacco Institute’s activities and committees.

5. Tobacco Institute College of Tobacco Knowledge

194. Coordination of information and careful instruction on how information should be presented and disseminated to the public was a major aim of the Enterprise. It was considered vital to leave no member vulnerable to attack in litigation or to subject the industry to further regulation. One extremely successful method used to ensure that industry representatives understood and were able to publicly transmit consistent statements regarding smoking and health and other issues of common concern to the Defendants was the operation of training seminars by the Tobacco Institute’s College of Tobacco Knowledge. The College began in the 1970s and operated for over a decade. Dawson WD, 26:7-21, 27:2-6, 28:6-8; Dawson TT, 1/12/05, 9920:19-21; 2025864882-4895 (U.S. 86140).

195. Representatives of all the Defendants, including BATCo and Philip Morris Companies, Inc., as well as representatives of several international organizations (including TAC, INFOTAB, and ICOSI) (explained in detail infra) attended the College. 1000019640-9647 (U.S. 86149*); 1000019649-9651 (U.S. 86150); *83 2501290388-0396 (U.S. 86156); TI16740660-0663 (U.S. 72403); 503908538-8538 (U.S. 29737); TI16740660-0663 (U.S. 72403); 503908538-8538 (U.S. 29737); TI04962210-2211 (U.S. 67250); TI16740652-0659 (U.S. 86168); TI16740741-0749 (U.S. 86169); TI04962337-2341 (U.S. 86170); (U.S. 65473); TIFL0071151-1151 (U.S. 86176); TIFL0071174-1174 TIFL0071152-1154 TIFL0071200-1202 TIFL0072275-2277 TI16740614-0616 TI11961414-1414 TIFL0072290-2303 87645518-5522 TIFL0068394-8402 TI11961377-1377 TIFL0071027 (U.S. (U.S. 86142); (U.S. 86177); (U.S. 86178); (U.S. 86180); (U.S. 86181); (U.S. 86182); (U.S. 86183); (U.S. 86184); (U.S. 86185); (U.S. 86186); 77029); Merryman PD, Florida v. American Tobacco, 7/25/97, 148:9-13.

196. Students who attended the College sessions were “people from the tobacco industry;” people whose responsibilities included public affairs, public relations, government relations; “[pjeople from all facets of the industry from seed bed to sales counter;” and industry lobbyists. Merryman PD, Florida v. American, 7/25/97, 148:17-149:8; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 145:2-13.

197. In accordance with the goal of achieving a unified public message for the industry, Walker Merryman, self-proclaimed “Dean of the College of Tobacco Knowledge” and also Vice President of Public Relations for the Tobacco Institute, gave presentations at the College during which he would “roam the room with a microphone and ask people questions [about what they had heard and learned over the two days] and see how they answered them.” Merryman PD, Florida v. American, 7/25/97, 151:12-152:18; Merry-man PD, Richardson v. Philip Morris, 4/9/98, 87:15-88:7; TI16740590-0593 (U.S. 86148). For example, he might ask a student if he believed that there was a relationship between smoking and disease, and suggest that the better response was that “there is a statistical relationship between smoking and disease” rather than that “smoking causes disease.” Merryman PD, Florida v. American, 7/25/97, 153:16-156:10.

198. The purpose of the Tobacco Institute College of Tobacco Knowledge was to “improve working relations with all major segments of the tobacco industry.” Dawson WD, 28:6-8. For example, Brennan Dawson participated in a mock segment of “The Phil Donahue Show” titled “Should Smoking Be Restricted in the Workplace?” during the 1988 College of Tobacco Knowledge conference, playing the role of Tobacco Institute spokesperson while James Sa-varese played Donahue and they acted out a reaction on behalf of the tobacco industry to a Surgeon General’s Report on the subject of ETS. Again, the College’s intended purpose with the rehearsal was always to ensure presentation of a unified and consistent public stance on smoking and health issues. Dawson WD, 29:6-30:1.

199. The College of Tobacco Knowledge “gave attendees an overview of a number of issues that the tobacco industry faces or faced at the time.” Merryman PD, Florida v. American, 7/25/97, 147:16-148:2; Chilcote PD, Richardson v. Philip Morris, 9/21/98, 259:8-261:10; Duffin PD, Munn, 1/7/87, 187:3-190:25. The Tobacco Institute not only funded and operated the College of Tobacco Knowledge, it also developed the College’s curriculum and its staff taught the sessions. Dawson WD, 26:16-21; Zahn PD, Massachusetts v. Philip Morris, 5/28/98,147:14-18; Chilcote PD, Richardson v. Philip Morris, 9/21/98, *84 261:11-15; Duffin PD, Munn, 1/7/87, 187:3-190:25.

200. After Tobacco Institute executives Merryman, Kloepfer, and Chilcote approved the curriculum, the Tobacco Institute mailed announcements to its Communications Committee, the International Tobacco Information Center (“INFO-TAB”), its senior staff, and other interested parties. TIFL0071011-1012 (U.S. 86141); TIFL0071174-1174 (U.S. 86142). In preparing for a College session, the Tobacco Institute would make its

senior vice presidents aware of the fact that one of these seminars was scheduled. And if they had new employees that they wanted to have invited or if they thought there was a contract lobbyist who might benefit, they could invite that individual. We also would let our member companies know that another seminar was scheduled, and if they had people in mind whom they . thought would benefit from such a seminar, they could be invited.

Merryman PD, Florida v. American, 7/25/97, 149:9-150:3; 85701033-1033 (U.S. 86143), 857010411042 (U.S. 86144); TIFL0069155-9155 (U.S. 86145); TIFL0069161-9161 (U.S. 86146).

201. A number of speakers generally spoke on a “half dozen or more different issues.” Merryman PD, Florida v. American, 7/25/97, 157:24-158:2. Speakers at the College sessions included Tobacco Institute employees with specialities in communications, public relations, and federal and state regulation; lawyers for the industry; medical consultants; state senators or representatives; economists; and statisticians. Merryman PD, Florida v. American, 7/25/97, 158:5159:5; Rupp WD, 39:20-40:3.

202. The Enterprise wanted to achieve consistent public statements concerning various smoking and health related subject areas through its control of the College’s curriculum. For example, there were frequent discussions at the College about the health hazards of smoking and of causation generally and how, according to the industry, causation had not yet been proven. Merryman PD, Florida v. American, 7/26/97, 159:13-160:4; 1000019640-9647 (U.S. 86149*); TIFL0068950-8955 (U.S. 86163).

203. The College’s curriculum also included the topic of industry sponsored research and the function of CTR generally. For example, presentations by Leonard Zahn, CTR public relations counsel, would describe the activities of CTR and its research program “so that all the mid and perhaps slightly above mid-level employees from the various companies would have an idea, more exact knowledge, of what the Council was and how it worked.” Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 145:14-146:11, 149:25-150:10; TI04962331-2334 (U.S. 86167); TI04962389-2389 (U.S. 62201); TI04962390-2398 (U.S. 62202); TIFL0068387-8387 (U.S. 77028). In addition, Zahn distributed or made available to the participants CTR materials including the Annual Report. Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 148:8-20.

204. Similarly, Addison Yeaman, CTR Chairman and President, spoke on the topic of sponsoring science, described in the syllabus as follows:

For 25 years, tobacco manufacturers, growers and warehouse operators have funded independent scientific research into tobacco use and health. How it is done and what is being learned.

1000019640-9647 (U.S. 86149*).

205. In addition to discussing the function of CTR, the College provided another opportunity for the Tobacco Institute and CTR to coordinate Enterprise activities. *85 In a letter dated October 27, 1981, William Hobbs, CTR Chairman, wrote that CTR representatives “Tom Hoyt and Bob Ger-tenbach will attend T.I.’s College of Tobacco Knowledge November 16 and 17” providing an opportunity for the Tobacco Institute’s Horace Kornegay to brief the CTR President and Executive Vice President on “T.I.’s advertising and research plans” because “it might be beneficial to CTR management.” 503908538-8538 (U.S. 29737).

206. Another topic frequently discussed at the College was Environmental Tobacco Smoke (“ETS”) and the failure to determine its true health effects on nonsmokers. 1000019640-9647 (U.S. 86149*); TIFL0068913-8926 (U.S. 86159); TIFL0068913-8926 (U.S. 86159); TIFL0068939-8939 (U.S. 86161). Industry ETS consultants like Nancy Balter, John Graham and “Gray” Robertson also explained them opposition to public smoking restrictions. TIFL0071152-1154 (U.S. 86177); TIFL0071200-1202 (U.S. 86178).

207. The College curriculum also included an “international perspective” on smoking and health related issues. For example, Mary Covington, Secretary General of INFOTAB, spoke at the November 1981 College about international perspectives related to ETS, explaining that the College

seminars offer an opportunity to learn a lot about smoking issues and industry programs in a very short time.... Without a concerted effort by the tobacco industry [initiatives to eliminate smoking in public places] will make gradual headway in changing attitudes towards smoking as a socially acceptable custom.

2501029891-9901 (U.S. 20557).

208. The topic of public relations was woven into each of the subject areas discussed above in order to achieve a consistent public message. For example, at both 1983 sessions of the College, William Klo-epfer of the Tobacco Institute spoke to the students on public relations issues. In addressing the issue of the “effectiveness and unity” of the tobacco industry, Kloep-fer contended that because “what affects one affects all,” the Tobacco Institute used many strategies “to keep us together, to keep us all aware.” According to Kloep-fer, the Tobacco Institute Public Relations Division was primarily responsible for four strategies: the Tobacco Institute Tobacco Observer newspaper reaching 150,000 readers six times a year; advertising in tobacco trade publications; appearing as speakers before trade and industry groups; and the Tobacco Institute College of Tobacco Knowledge that has helped “educate” and “orient hundreds of key family members ... a united industry is our most potent public relations and legislative tool.” TI04962436-2454 (U.S. 86172); TIFL0526112-6125 (U.S. 62625).

209.In addressing the issue of public smoking restrictions, Kloepfer noted that

through our spokesmen, our literature, and our advertising, we broadcast two messages: (1) ambient smoke has not been proven dangerous to non-smokers, and (2) smoking restrictions cause unnecessary expense, inconvenience, and discrimination.

TI04962436-2454 (U.S. 86172); TIFL0526112-6125 (U.S. 62625). In addressing “our oldest, most frustrating issue,” Kloepfer maintained, as late as 1983, that

We call it the primary issue. It is the smoking and health controversy. We think of it as controversy ... a subject far from decided ... and through our spokesmen and literature we make that point.

*86 TI04962436-2454 (U.S. 86172); TIFL0526112-6125 (U.S. 62625).

210. Finally, indications from those who attended the College were that the Enterprise, via the Tobacco College of Knowledge, was achieving its goal of uniting the industry and promoting a common public response to issues related to smoking and health. For example, Arthur Stevens, General Counsel for Lorillard, sent comments from the Lorillard attendees at one session to the Tobacco Institute. 03022004-2008 (U.S. 86157); 85676573-6577 (U.S. 86158). One employee wrote,“The information presented gave me a better view of the defensive position in which our industry finds itself.” 03022004-2008 (U.S. 86157); 85676573-6577 (U.S. 86158). Similarly, in feedback after the September 1980 session regarding whether or not the College of Tobacco Knowledge was worthwhile, one Lorillard attendee wrote:

Definitely- — The opportunity to meet with the pros, who fight in the trenches, was an experience which expanded my knowledge and commitment to our mutual goals.

85700954-0955 (U.S. 86162). Further commentary by Lorillard attendees on the Seventh College included:

[A]fter the program was completed, I definitely have a better understanding of the industries [sic] position in certain areas ... past attendees should be updated whenever the industries [sic] stand on a position changes or new information is available, especially in the overall smoking and health controversy. 85180845-0846 (U.S. 86164);

85700895-0895 (U.S. 86166).

211. In addition to the formal training received by Defendants’ employees on the industry position in smoking and health matters at the Tobacco Institute’s College of Tobacco Knowledge, industry lawyers also informally instructed tobacco company employees on the industry’s smoking and health positions. For example, Jeffrey Wigand, former Vice President of Research and Development of B & W, shortly after starting to work for B & W, was sent to the law offices of Shook, Hardy & Bacon in Kansas City, Missouri, for an orientation. Shook, Hardy & Bacon attorneys William Shinn, Robert Northrip and Charles Wall instructed Wigand on the tobacco industry position on causation and addiction. Scott Appleton, a B & W toxicologist, also attended a training session at Shook, Hardy & Bacon. Wigand WD, 29:26-30:10.

6. Tobacco Institute Testing Laboratory

212.In June 1966, the Federal Trade Commission (“FTC”) announced that it was establishing a laboratory to measure by machine the tar and nicotine content of cigarette smoke. That same year, the tobacco industry decided to establish its own laboratory, the Tobacco Institute Testing Laboratory (“TITL”), which would be a separate division of the Tobacco Institute. The TITL was established so that Defendants could conduct tests to determine the accuracy and reliability of the FTC laboratory’s tests. The TITL was also used by Defendants for other testing purposes, such as the testing of the chemical Chemo-sol in the late 1960s and early 1970s. 500500320-0323 (U.S. 20633); TIMN267142-7143 (U.S. 21353); TIMN267120-7121 (U.S. 21351). Murray Senkus, Director of Research at RJR, acknowledged that TITL was a “Mechanism for Mutual Cooperation” within the Tobacco Institute. 500500320-0323 (U.S. 20633); TITL0003363-3374 TIMN267142-7143 TIMN267120-7121 TITL0003108-3111 (U.S. 21931); (U.S. 21353); (U.S. 21351); (U.S. 21597); 01246525-6537 (U.S. 34516).

*87 E. Joint Research Activity Directed by Defendants’ Executives and Lawyers

1. Witness Development

213. Defendants Philip Morris, Reynolds, Lorillard, Liggett, B & W, American, CTR, and the Tobacco Institute developed a variety of joint research projects that were dubbed Special Projects. These projects assumed numerous forms and names, including CTR Special Projects, Lawyers Special Projects (projects paid through Lawyers Special Accounts), and Tobacco Institute Special Projects. These projects were exclusively funded by these particular Defendants. The main purpose of these projects, which were primarily lawyer-developed, directed, and supervised, was to obtain and develop witnesses favorable to Defendants for testimony before Congress and other regulatory bodies, for use in litigation, and for support of industry public statements.

214. TIRC/CTR through its “Special Projects” allocated funding on a non-peer reviewed basis for research projects associated with litigation and witness preparation, Brandt WD, 127:20-22, and were not designed to address smoking and health issues in a way that would be helpful to increasing public knowledge about smoking and disease.

215. Special Projects were overseen by the main members of the Committee of Counsel, i.e., the General Counsels of Defendants Philip Morris, Reynolds, Loril-lard, Liggett, B & W, and American. Stevens WD, 6:13-21; 2045752106-2110 at 2107 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902); 01124376-4421 (U.S. 26394); 01124445-4445 (U.S. 26400).

216. The Committee of Counsel received frequent updates on Special Projects. 1005061626-1626 (U.S. 35960); 1005061615-1615 (U.S. 35958); 1005061616-6125 (U.S. . 35959); 1005061626-1626 (U.S. 35960); 680305856-5858 (U.S. 30887); 2501190758-0759 (U.S. 20562).

217. Special Projects were often managed by yet another committee called the Ad Hoc Committee. The Ad Hoc Committee consisted of in-house counsel, litigating lawyers, and other agents such as public relations and research representatives of Defendants directed to conduct long range policy planning with respect to research and witness development. 2045752106-2110 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902).

218. The focus on witness development, as opposed to scientific research, is illustrated in a letter dated October 28, 1966, where attorney Francis Decker advised David Hardy of Shook, Hardy & Bacon on the status of certain Ad Hoc matters. He stated,

Dr. Pratt is presently only available on a limited basis. However, we intend to try to develop him as a possible witness .... Dr. Soloff made the remark about the finding that the non-smoker and ex-smoker have the same incidence of heart disease. Nonetheless, I think he could be an excellent witness. To begin with, I think he might be persuaded that the validity of the above statement is questionable.

1005105988-5990 (U.S. 36020).

219. In January 1967, the Ad Hoc Committee was comprised of: (1) Janet C. Brown, Chadbourne & Parke, counsel to American and CTR; (2) Kevin L. Carroll, White & Case, counsel to B & W; (3) Donald J. Cohen, Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, counsel to Liggett; (4) Edward J. Cooke, Jr., Davis, Polk & Wardell, counsel to Reynolds; (5) Francis Decker, Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, *88 counsel to Liggett; (6) Alexander Holtz-man, Conboy, Hewitt, O’Brien & Board-man, counsel to Philip Morris; (7) Edwin J. Jacob, Jacob, Medinger & Finnegan, counsel to CTR, B & W, and Reynolds; and (8) William W. Shinn, Shook, Hardy, Ottman, Mitchell & Bacon (later “Shook, Hardy & Bacon”), counsel to Philip Morris, Lorillard, B & W, and Reynolds. 2015059690-9697 (U.S. 20309).

220. At times, members of the Ad Hoc Committee and the Committee of Counsel held joint meetings to keep Defendants informed as to the status of joint research matters related to the enterprise, particularly “industry legislative” and litigation positions. BWX0000007-0007 (U.S. 59828).

221. On December 17, 1965, at a meeting of the “Committee of Six [i.e., the Committee of Counsel],” representatives of at least CTR, B & W, and Reynolds, and outside counsel met to discuss CTR and Ad Hoc special projects in relation to the need for industry witness development. 95522182-2185 (U.S. 56821); RC6033491-3496 (U.S. 86225); 01124441^444 (U.S. 20034).

222. In a follow-up letter dated January 4, 1966, attorney John Russell of Perkins, Daniels & McCormack informed J.E. Bennett, President of Lorillard:

As you are aware, the lawyers have, together with the staff of Council for Tobacco Research, been reviewing our industry’s research program with a view toward developing some sort of a master plan.

Russell advised that there were three categories of research: “A. Adversary needs (Congress, litigation, etc.); B. Defensive needs; and C. Basic research.” He further advised that some projects would be paid through Lawyers’ Special Accounts and some out of CTR. 01124445^4445 (U.S. 26400).

223. An April 12, 1966 Reynolds document describing the mission of the Tobacco Institute discussed Defendants’ goals including witness, development in upcoming health litigation. The document stated that the authorization and purpose of CTR Special Projects and Ad Hoc Committee lawyer projects was to assure efficient handling of medical evidence and to provide the industry with witnesses for health litigation. 502645038.S-5038.Z (U.S. 23053).

224. David Hardy, partner at Shook, Hardy & Bacon, played a major role in Defendants’ witness development plans to perpetuate the Enterprise’s “open question” position. Hardy worked to secure possible witnesses for future litigation throughout the 1960s. For example, in a January 12, 1967 letter to the Ad Hoc Committee, he requested evaluations of potential industry witnesses. In the same letter, Hardy asked Ad Hoc Committee members to analyze the value of various CTR and Ad Hoc projects in an effort to get practical use out of them in time for expected Congressional hearings. 2015059690-9697 (U.S. 20309).

225. A February 8, 1967 letter to Hardy from Donald Cohen and Francis Decker, attorneys with Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, responded to Hardy’s request for comments and evaluations of potential industry witnesses. It addressed many areas of possible testimony in great detail and provided names of doctors and scientists, many of whom were CTR Special Projects recipients and funded by various Defendants in later years. Cohen and Decker stated that Defendants’ witnesses

should describe the unexplained paradoxes in the cigarette smoke theory of disease causation. [They] should present the idea that the statistics are as consistent, if not more so, with the con *89 stitutional theory as with the cigarette smoking theory.

Cohen and Decker also recommended that doctors and scientists who had received CTR grants-inaid and CTR Special Project funding be used as potential witnesses. 1005154422-4435 at 4425 (U.S. 20228).

226. William Shinn of Shook, Hardy & Bacon also responded to Hardy’s request, with copies to members of the Ad Hoc Committee, regarding potential witnesses for Defendants in upcoming congressional hearings. 1005154472-4479 (U.S. 20229); 2015059690-9697 (U.S. 20309).

227. Similarly, on March 31, 1967, Robert Hockett, on behalf of CTR, sent a memorandum to Hardy describing Adolphe D. Jonas, a psychiatrist who had worked on the psychology of smoking. In this memorandum, Hockett mentioned Jonas as a potential industry witness. 2015034120-4121 (U.S. 20319).

228. When a scientist was willing to act as a witness in litigation or before congressional hearings on behalf of the Enterprise, her work was often funded by CTR Special Projects. For example, on October 3, 1968, in an attempt to funnel names to Hardy as potential witnesses before awarding industry funding to scientists, Alexander Holtzman, General Counsel of Philip Morris, wrote a letter proposing CTR Special Project funding for Richard Hickey. Hickey’s application to CTR for $30,000 had previously been turned down, but Holtzman stated that

Dr. Hickey is willing to prepare a statement for Congress provided that he is put in a position to complete the analysis of data which he has in-hand and he would, in my opinion, make an excellent witness.

1005084784-4786 at 4784 (U.S. 22988). Holtzman also wrote that

I think we might be able to persuade him to make additional observations in these papers concerning the implications of his data in relation to the Public Health Service view on the smoking question. Id.

229. Similarly, a November 17, 1978 Philip Morris memorandum noted that “CTR has supplied spokesmen for the industry at Congressional hearings. The monies spent at CTR provides a base for introduction of witnesses.” 2045752106-2110 at 2107 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902).

230. An industry document written by “A.H.” (very likely Alexander Hotzman), describing what transpired at a General Counsels’ meeting at the offices of Philip Morris on January 4, 1978, at which representatives from B & W, Liggett, Reynolds, the Tobacco Institute, and Philip Morris were present, demonstrated the development of Special Account No. 4 (a specific type of Lawyers Special Accounts, discussed at Section 111(E)(3)(b), infra) to address Defendants’ need for witnesses. The Enterprise used Special Account No. 4 to fund researchers and scientists and to pay fees to consultants who could offer expert knowledge to Defendants and act as witnesses on their behalf. Recipients of such funding were sought out by Defendants’ attorneys based on how helpful they would be in future litigation and congressional hearings. Funds were allocated accordingly. Discussions and details of the lawyers’ special projects were to be kept confidential. In this same document describing what occurred at the January 4, 1978 meeting, attendees were advised not to discuss the details of Special Account No. 4 in writing, and instead discuss any questions on the matter in a phone call. No-response to a letter within a given date was assumed to mean that “the matter [was] agreeable.” BWX0004364-4375 *90 (U.S. 36228); 03658901-8901 (U.S. 20061); LG2024193-4196 at 4196 (U.S. 21212).

231. In a February 9, 1978 letter to Thomas F. Ahrensfeld, General Counsel for Philip Morris; Max H. Crohn, Jr., General Counsel for Reynolds; Joseph Greer, General Counsel for Liggett; Arnold Henson, an attorney with Chadbourne & Parke; .Ernest Pepples, General Counsel for B & W; and Arthur J. Stevens, General Counsel for Lorillard, William Shinn of Shook, Hardy & Bacon wrote of the

need for special areas of research with due regard for the politics of science, the importance of developing witnesses and the need for a responsive mechanism to meet unfounded claims made about tobacco.

In this document, Shinn recommended approval for funding of projects through Special Account No. 4 and CTR Special Projects. Once again, recipients of this letter were reminded not to retain notes on matters of witness development. 503655086-5088 at 5087 (U.S. 20720); 503655086-5088 (U.S. 75190).

232. By at least the late 1970s, the Tobacco Institute and its agents became coordinators in Defendants’ efforts to develop a group of witnesses for future litigation and hearings. An August 30, 1978 letter from Ernest Pepples of B & W to Richard Maddox of BATCo discussed the request of Horace Kornegay, President of the Tobacco Institute, that the Committee of Counsel be involved in selecting and providing scientific witnesses and documentary testimony for use in hearings before Congress and elsewhere. During its years as an active trade association, the Tobacco Institute prepared or provided over 100 witnesses for testimony before Congress, courts or state legislatures. 681725305-5307 (U.S. 21019); USX6390001-0400 at 0335 (U.S. 89555).

223. A March 11, 1980 document drafted by Max Crohn of Reynolds acknowledged that longtime CTR Special Project and Special Account No. 4 recipient Theo-dor Sterling was “one of our industry’s most valuable outside assets.” In addition to numerous publications and studies, Crohn noted that “[Sterling] has continued to be one of the primary scientists available for consultation with Shook Hardy & Bacon in Kansas City.” 503645463-5463 (U.S. 29696).

234. A 1983 letter from Ernest Pepples of B & W to Jim Bowling of Philip Morris and Alexander Spears of Lorillard attached “a paper proposing recommendations which we might make to the [Tobacco Institute] Executive Committee.” 80419202-9202 (U.S. 21061). The attached paper titled “Industry Research Support - Recommendations” listed the following among its considerations for upcoming scientific funding:

Be prepared to increase scientific funding of special projects to resolve scientific problems and develop witnesses....

Maintain company cooperation — philosophies about research may differ at times, but goals should be the same....

Improve cooperation between industry mechanisms such as CTR and TI.

80419203-9203 (U.S. 21062).

235. In a February 2, 1984 memorandum written by Arthur Stevens, General Counsel for Lorillard, to Alexander Holtz-man, General Counsel for Philip Morris; Ernest Pepples, General Counsel for B & W; Josiah Murray, General Counsel for Liggett; and Samuel Witt, General Counsel for Reynolds, Stevens discussed the intent of the Ad Hoc Committee to “propose a witness development plan” to assist the litigation and regulatory efforts of the *91 member companies. 85687269-7270 at 7269 (U.S. 21081).

236. An April 7, 1986 letter from Patrick Sirridge, Shook, Hardy & Bacon, to Alexander Holtzman, General Counsel for Philip Morris; Wayne W. Juchatz, General Counsel for Reynolds; Josiah J. Murray, III, General Counsel for Liggett; Ernest Pepples, General Counsel for B & W; Paul A. Randour, General Counsel for American; and Arthur J. Stevens, General Counsel for Lorillard, informed CTR Board members that Shook, Hardy & Bacon would take over both the administration of Special Account No. 4 from Jacob, Med-inger & Finnegan and the submission of research proposals for CTR Special Projects. According to this letter, Shook, Hardy & Bacon anticipated higher funding requests for “certain witness development expenses incurred by national litigation counsel.” 507877173-7174 at 7173 (U.S. 20800).

237. Another long-time industry law firm involved in witness development was Waehtell, Lipton, Rosen & Katz. An April 28 memorandum from attorney David Murphy to attorneys Herbert Waehtell, Paul Vizcarrondo, Jr., and John Savarese described an issue that had arisen at Loril-lard. Arthur Stevens and William Allinder of Lorillard wanted to know if Lorillard could “participate in funding through a Shook, Hardy special account the work of a Georgetown pathologist, Bennett Jensen.” Murphy reported that he had been advised that Jensen had received CTR Special Project funding in 1988, and now faced problems at Georgetown because of his ties to the tobacco industry. Shook, Hardy & Bacon proposed to

“give him” $40,000 — not for specific research ... or with an eye to publication but solely in order to maintain a good relationship with him and secure his continued help in making contact with other scientists.

Murphy also reported that “Allinder admits that Shook, Hardy wants to give Jensen money to keep him happy and that there is no immediate value to his research.” Jensen, however, was a potential witness in the Haines litigation and his contacts “could lead to legislative witnesses.” 877156355636 (U.S. 21101). Indeed, Robert Northrip, an attorney with Shook, Hardy & Bacon, acknowledged that one of the benefits of Special Projects was preserving the good will of former witnesses. Northrip WD, 10:6-11:2; Nor-thrip TT, 9/30/04, 01366:7-01367:25; ATX9275490271-0280 at 0273 (U.S. 36231).

2. CTR Special Projects

a. Nature of CTR Special Projects

238. CTR Special Projects were a separate category of research projects funded by CTR. Unlike the grant-in-aid category of research, CTR Special Projects were not screened by the CTR Scientific Advisory Board (“SAB”); instead the process was directed by the General Counsels of Philip Morris, Reynolds, Lorillard, Lig-gett, B & W, and American, as well as attorneys at outside law firms including Jacob, Medinger & Finnegan, and Shook, Hardy & Bacon. The work was specifically commissioned for possible use in litigation. Stevens WD, 13:22-16:16, 17:20-18:8; Juchatz TT, 11/22/04, 06736:17-06748:17, 06754:8-06782:3; (U.S. 87024); McAllister WD, 159:1214, 161:23-162:25; McAllister TT, 3/21/05, 16171:22-16175:13; Sommers PD, Arch v. American, 7/14/97, 49:7-9; see also Rupp WD, 38:1-8; Northrip TT, 9/30/04, 01369:25-01374:16, 01374:1701375:3; Lisanti PD, Engle v. Reynolds, 8/13/97, 86:8-21; USX6390001-0400 (U.S. 89555).

239. Because of the lawyer involvement and the lack of review by the SAB, there *92 was recognition that CTR Special Projects did not constitute the independent research promised in the Frank Statement. Janet Brown, retained counsel for CTR, acknowledged the problem in a letter to David Hardy dated June 13,1974:

Where the industry is itself the arbiter of the amount and nature of research to be done, however, arguments that the research is self-serving — that is, is too little, too late, does not bear reasonable relation to the nature and scope of the problems nor to the industry’s market position, sales, profits, advertising expenditures — gain in force and acceptance, Moreover, the industry may have little, if any leeway to disassociate itself from any results of such research with which it does not agree.

03659023-9025 at 9025 (U.S. 87177).

240. From 1966 to 1990, Defendants contributed the following amounts to CTR Special Projects: American — $2,049,354; B & W — $2,571,354; Lorillard -$1,638,490; Philip Morris $5,837,923; and Reynolds— $6,029,255. From 1966 to 1975, Liggett contributed approximately $144,000. DXA0630917-1033 at 1024 (U.S. 75927).

241. Although Liggett withdrew from CTR in 1968, it continued to participate in CTR Special Projects. Stevens, WD, 17:14-19. Indeed, in its January 8, 1968 resignation letter, Liggett’s President stated “we will continue to participate in defraying the cost of [CTR] Special Projects sponsored by the Council after evaluation of each Project on an individual basis.” CTR-TIRC MIN000238-0244 at 0241 (U.S. 33023).

242. Like CTR grants-in-aid, CTR Special Projects involved research into epidemiology, laboratory work, and animal experimentation. However, they were regarded by at least one prior Scientific Director of CTR as “soft science,” which would not appeal to the CTR SAB. Som-mers PD, Arch v. American Tobacco, 7/14/97, 49:7-24; 7/15/97, 215:22-24, 216:2-6.

243. CTR Special Projects allowed participating tobacco manufacturers access to papers and statements by scientists before they were submitted for publication to journals or to regulatory bodies. See e.g., U.S. 34088; 62774. Special Project funding also allowed Defendants to have some say in publications resulting from such funding. See e.g., U.S. 20469.

244. The lawyers who coordinated, requested and monitored CTR Special Projects were not scientists and did not have scientific backgrounds. The lawyers wished to avoid the CTR SAB method of funding because the SAB evaluated its project-funding requests in part for scientific legitimacy, while the lawyers were focused on litigation and liability objectives. Hoel PD, United States v. Philip Morris, 6/27/02, 58:20-59:19.

245. In the mid-1960s, Shook, Hardy & Bacon developed a smoking and health literature retrieval system within the firm to help the lawyers identify scientists friendly to the tobacco industry’s liability positions so that these scientists could receive funding through the CTR Special Projects program. Hoel PD, United States v. Philip Morris, 6/27/02, 61:10-62:7, 62:11, 63:11-20.

246. An April 14, 1967 memorandum from Addison Yeaman, Vice President and General Counsel of B & W, addressed to Frederick Haas, General Counsel for Lig-gett; Cyril Hetsko, General Counsel for American; Henry Ramm, General Counsel for Reynolds; Paul Smith, Associate General Counsel for Philip Morris; and Earle Clements, President of the Tobacco Institute, explained how SAB projects had been “deliberately isolated” from lawyer-directed projects:

*93 We have deliberately isolated the SAB from those areas of research which they might consider were of a controversial or adversary nature and I see no reason why that isolation cannot and should not be maintained to the fullest preservation of the scientific integrity and dignity of the SAB, but with the release of funds from the SAB portion of CTR’s budget to both research directly related to tobacco and the so-called Special Projects.

670307892-7894 (U.S. 20967).

247. A February 24, 1969 Lorillard memorandum also described the origin of CTR Special Projects:

For a number of years, certain representatives of the industry have felt that the work of the Council [for Tobacco Research] has not been as pertinent to our problems as it might be.... In an effort to meet this objection, in 1965 the Council embarked on a program of guided research.... In order to finance this phase of their activity, a special projects budget was developed.

044227839-7844 (U.S. 20066).

248. An April 18, 1980 memorandum to file by Arthur Stevens stated: “I concluded that this work [of CTR Special Project recipients Kuper and Janis] is potentially useful from a litigation point of view.” 01336290-6290 (U.S. 88436).

249. A September 18, 1981 letter from Francis Decker, an attorney with Webster & Sheffield, to Joseph Greer, Vice President and General Counsel for Liggett, enclosed his notes from a September 10,1981 meeting of the Committee of Counsel. Decker’s notes described a discussion between Arthur Stevens, General Counsel for Lorillard, and Edwin Jacob, CTR attorney with Jacob, Medinger & Finnegan, noting the differences between CTR Special Projects and Lawyers Special Projects:

Stevens: “I need to know what the historical reasons were for the difference between the criteria for lawyers’ special projects and CTR special projects.”

Jacob: “When we started the CTR Special Projects, the idea was that the scientific director of CTR would review a project. If he liked it, it was a CTR Special Project. If he did not like it, then it became a lawyers’ special project.”

Stevens: “He took offense re scientific embarrassment to us, but not to CTR.” Jacob: ‘With Spielberger, we were afraid of discovery for FTC and with Aviado, we wanted to protect it under the lawyers. We did not want it out in the open.”

LG2000741-0750 at 0745-0746 (U.S. 36269).

250. A 1984 document prepared by Lee Stanford of Shook, Hardy & Bacon to David Hardy of Shook, Hardy & Bacon, concerning the briefing of Alex Spears of Lorillard for a deposition, discussed CTR Special Projects. The document acknowledged that “[t]hese are initiated and developed through outside counsel (SHB and J & M).” 92456261-6268, (U.S. 75420).

251. A document prepared in or about 1992 titled “Funding Sources of Tobacco Industry Research” noted that CTR Special Projects were “ — Research directed at industry problem — Witness development objective — Approved by general counsel— Funded through CTR.” 01334642-4655 (U.S. 34528).

253. An April 28, 1992 Wachtell Lipton memorandum from attorney David Murphy to attorneys Herbert Wachtell, Paul Vizearrondo, Jr., and John Savarese discussed the nature of CTR Special Projects *94 and raised the spectre of “perpetrating a fraud on the public”:

In my over cautious view, the Jensen issue raises a larger question -whether “CTR Special Projects” funds (and after such activities were moved out of CTR, joint industry funds administered through Shook, Hardy) were used to purchase favorable judicial or legislative testimony, thereby perpetrating a fraud on the public. Admittedly, this notion of fraud was unknown to the common law, but if we assume the other side of the looking glass ... perhaps it is cause for concern.

87715635-5636 (U.S. 21101).

b. Lawyers’ Involvement with CTR Special Projects

253. Attorneys at Jacob, Medinger & Finnegan and Shook, Hardy & Bacon kept the Committee of Counsel apprised of the status of CTR Special Projects and also made recommendations to Defendants’ General Counsels and to each other as to whether ' projects should be conducted through CTR Special Projects. TIMN261386-1387 (U.S. 21288); 1005048374-8374 (U.S. 35939). See also Lisanti PD, Arch v. American Tobacco, 6/10/97, 80:9-81:19, 82:10-19.

254. For example, on May 19, 1967, William Shinn of Shook, Hardy & Bacon, sent a letter to Alexander Holtzman, Philip Morris General Counsel, regarding CTR Special Projects. He discussed a proposal to support and publicize research advancing the theory of smoking as beneficial to health as a stress reducer, even for “coronary prone” persons; represented that stress (rather than nicotine addiction) explains why smoking clinics fail; and proposed to publicize the “image of smoking as ‘right’ for many people ... as a scientifically approved ‘diversion’ to avoid disease causing stress.” 1005083882-3882 (U.S. 20204).

255. On February 5, 1974, Shinn sent a letter to the following General Counsels: Thomas Ahrensfeld of Philip Morris; De-Baun Bryant of B & W; Frederick Haas of Liggett; Cyril Hetsko of American; Henry Roemer of Reynolds; and Arthur Stevens of Lorillard, stating that “Dave Hardy and I strongly recommend approval of the $50,000 grant for Dr. Carl D. Seltzer’s work as a CTR special project” at Harvard University, citing the valuable research he was conducting and the works he had already published relating to smoking and health, which were helpful to the industry. 1005108380-8381 at 8381 (U.S. 20209).

256. On June 3, 1986, Patrick Sirridge of Shook, Hardy & Bacon sent a letter to the following General Counsels: Alexander Holtzman of Philip Morris; Wayne Ju-chatz of Reynolds; Josiah Murray of Lig-gett; Ernest Pepples of B & W; Paul Randour of American; and Arthur Stevens of Lorillard, recommending approval for additional funding of Henry Rothschild through CTR Special Projects. 507878840-8840 (U.S. 20802).

257. Such industry attorney recommendations continued into the 1970s and 1980s. LG2000429-0430 (U.S. 34067); 1005083560-3561 (U.S. 35991); LG2002513-2514 (U.S. 34076); 1005070386-0387 (U.S. 35981); 1005108380-8381 (U.S. 20209); MNAT-PRIV00012777-2778 (U.S. 86233); 503655086-5088 (U.S. 20720); 03638976-8979 (U.S. 20060); 03638976-8979 (U.S. 46483); 01335398-5398 (U.S. 26488); 507731976-1976 (U.S. 86273); 521032586-2588 (U.S. 85746); 01335965-5966 (U.S. 26516); 01335571-5571 (U.S. 26498); 03754226-4227 (U.S. 29343); 013383918392 (U.S. 26567); 01337575-7576 (U.S. 26552); 1005125797-5798 (U.S. 36097); 505741621- *95 1622 (U.S. 86245); BWX0003772-3773 (U.S. 36199); 503645740-5741 (U.S. 29699); 504339396-9397 (U.S. 29751); BWX0002772-2773 (U.S. 36171); 521030035-0036 (U.S. 30458); 1005125390-5391 (U.S. 36091); BWX0002884-2885 (U.S. 36182); 1005125300-5301 (U.S. 36089); 03747448-7449 (U.S. 29327); ATX9277370208-0209 (U.S. 36233); 503645752-5753 (U.S. 29700); 1005064666-4667 (U.S. 35973); LG2002762-2763 (U.S. 34086); BWX0004202-4202 (U.S. 36222); 507731371-1371 (U.S. 86250); 1005064678-4679 (U.S. 35975); 521032115-2116 (U.S. 30470); 503645128-5129 (U.S. 86251); 1005064711-4712 (U.S. 35977); BWX0003460-3461 (U.S. 36192); 1005064646^647 (U.S. 35972); 503566273-6274 (U.S. 86253); 521031847-1848 (U.S. 30466); 1005064594-4595 (U.S. 35969); BWX0002886-2887 (U.S. 36183); 503655382-5383 (U.S. 86254); 503655216-5217 (U.S. 86255); BWX0002866-2867 (U.S. 36180); 1005064627-4628 (U.S. 35971); BWX0002893-2894 (U.S. 36185); 503653937-3938 (U.S. 86256); 507731344-1344 (U.S. 29862); 521029712-9713 (U.S. 30451); 1005064547-4548 (U.S. 35967); 503645684-5685 (U.S. 86257); BWX0002888-2889 (U.S. 36184); 521030984-0985 (U.S. 86259); 507734475-4476 (U.S. 86261); 507732105-2106 (U.S. 86262); 507734379-4380 (U.S. 29905); 507731548-1549 (U.S. 86266); 507734458-4458 (U.S. 86267); 507731658-1659 (U.S. 86269); 507731764-1765 (U.S. 86270); 507731469-1470 (U.S. 86271); 507731758-1758 (U.S. 29896); 507731648-1648 (U.S. 29888); 507731575-1576 (U.S. 86275); 507731487-1487 (U.S. 86276); 507731973-1973 (U.S. 86278); 507875993-5993 (U.S. 22692); ATX300010994-0995 (U.S. 22694); 521031106-1107 (U.S. 22696); 01336194-6195 (U.S. 22697); 01338089-8089 (U.S. 22701); LG2000678-0679 (U.S. 22703); 1005064682-4683 (U.S. 35976); 03751975-1976 (U.S. 29340); 03747528-7528 (U.S. 29328); 01336110-6113 (U.S. 26519); 1005064561-4561 (U.S. 35968); 01335579-5579 (U.S. 26499); 2015029385-9385 (U.S. 36639); 01336499-6500 (U.S. 26535); 507877111-7112 (U.S. 88438); 86003017-3018 (U.S. 56084); 013354725472 (U.S. 26493); 01338515-8517 (U.S. 26570); 01334899^899 (U.S. 26474); 01331881-1881 (U.S. 26467); 503655440-5441 (U.S. 29711); 01336191-6192 (U.S. 26522); TLT0270555-0555 (U.S. 85619); 03751370-1372 (U.S. 29331); 01335959-5959 (U.S. 26514); 01335967-5968 (U.S. 26517); 5210323122314 (U.S. 30472); 1000781727-1727 (U.S. 35321); 1005125129-5130 (U.S. 36084).

258. In-house counsel also made recommendations for CTR Special Projects. On October 3, 1968, Alexander Holtzman of Philip Morris sent a letter to David Hardy of Shook, Hardy & Bacon proposing that Richard Hickey, who had previously applied for funding through CTR but been rejected, receive Special Project funding. On October 21, 1968, Hardy endorsed that recommendation by sending a letter to Frederick Haas of Liggett; Cyril Hetsko of American; Henry Ramm, General Counsel for Reynolds; Paul Smith, General Counsel for Philip Morris; and Addison Yeaman, General Counsel for B & W, by also recommending approval for Hickey as a CTR Special Project. 1005084784-4786 (U.S. 22988); 1005084799^800 (U.S. 20206).

259. By letter dated May 28, 1970, William Shinn of Shook, Hardy & Bacon advised Holtzman that he now had approval from Philip Morris, Reynolds, and Liggett “with respect to the Hickey Special Project,” a reference to studies relating air pollution to lung cancer incidence by Dr. Richard J. Hickey of the Institute of Environmental Studies at the University of Pennsylvania, and that he intended to “call the other General Counsel, if I have not *96 heard from them' by then, early next week.” 2015031514-1514 (U.S. 20316).

260. In 1981, Arthur Stevens, Senior Vice President and General Counsel of Lorillard, engaged in extensive correspondence with Patrick Sirridge of Shook, Hardy & Bacon regarding the possibility of establishing an industry relationship with Henry Shotwell, a Sun Chemical employee who specialized in air-sampling analysis systems. 01349577-9577 (U.S. 86281); 01349576-9576 (U.S. 86282); 01349575-9575 (U.S. 86283); 01349574-9574 (U.S. 86284); 01349557-9557 (U.S. 86285).

261. Similarly, on November 28, 1983, Arthur Stevens sent a letter to Patrick Sirridge of Shook, Hardy & Bacon, inquiring: “Is Binstock someone who might be appropriate for a special project?” 03746232-6232 (U.S. 29322).

262. CTR personnel also recommended that certain projects be funded as CTR Special Projects. For example, on December 24, 1969, Arthur Furst, CTR consultant, sent a letter to David Hardy recommending Special Project funding for Hans J. Eysenck, of the Institute of Psychiatry of Maudsleu and Bethlehem Royal Hospitals in London, to test the hypothesis of a relationship between the emotional makeup of people and cancer by conducting a pilot study of carcinogenesis in rats bred for different characteristics. 1005070515-0515 (U.S. 20201).

263. According to CTR’s Harmon McAllister, after lawyers had initiated a Special Project proposal, “a description of the proposed project and its cost [were] presented to CTR ... for appraisal by the Scientific Director.” McAllister WD, 161:4-18; CTRSP-FILES026162 (JD 090143). Individuals who presented the proposed project description and cost estimate to the CTR Scientific Director included company attorneys, attorneys from Shook, Hardy & Bacon, and attorneys from Jacob & Medinger. McAllister TT, 3/21/05, 16171:22-16172:22. The CTR Scientific Director would then review the Special Project proposal and either approve or reject it. McAllister TT, 3/21/05, 16178:16-24; McAllister WD, 19-25; CTRSP-FILES012009 (JD 093897). Sheldon Sommers reviewed and approved dozens of Special Project proposals during his tenure as CTR Scientific Director. See, e.g., 01335398-5398 (U.S. 26488); 521032586-2588 (U.S. 85746); 507731976-1976 (U.S. 86273); 804122847-2848 (U.S. 26525); 282002535-2536 (U.S. 28076); 507731658-1659 (U.S. 86269); 521028862-8863 (U.S. 52693*); 804122847-2848 (U.S. 23586); BWX0003460-3461 (U.S. 36192); BWX0003808-3809 (U.S. 36204); see also 503565787-5787 (U.S. 29683); CTR98CON G00067 (U.S. 32516); LWODJ9055269-5270 (U.S. 26015).

264.If approved by the CTR Scientific Director,’ the proposal was presented to the General Counsels of Defendants Philip Morris, Reynolds, Lorillard, Liggett, B & W, and American who would make the final decision whether to fund it. McAllis-ter WD, 162:8-18; McAllister TT, 3/21/05, 16179:7-16182:2. See also Lisanti PD, Arch v. American Tobacco, 6/10/97, 86:17-87:2. Sometimes, general counsel would advise CTR directly if a project was approved for CTR Special Project funding. For example, on July 22, 1970, Henry Ramm, Senior Vice President and General Counsel of Reynolds, advised Robert Hockett, Associate Scientific Director of CTR, regarding the

proposed Conference to be held in the West Indies in January 1972, counsel representing Philip Morris, B & W, American Brands, Liggett & Myers and Lorillard which companies together with Reynolds participate in Special Projects have advised that if the Scientific Advisory Board does not approve this project *97 the same can be treated as an approved Special Project.

CTRSP-FILES009810-9810 (U.S. 21696); BWX0010831-0840 (U.S. 36244).

265. The proposed conference was approved as a CTR Special Project in October 1970; was held on St. Martin Island on January 12-15, 1972; and was called the Conference on the Motivational Mechanisms of Cigarette Smoking. Among the attendees were A.K. Armitage from Britain’s Tobacco Research Council; Robert Hockett, CTR Associate Scientific Director; Henry Ramm, CTR Chairman and President; Gilbert Huebner, Tobacco Institute Medical Director; Marvin Kas-tenbaum, Tobacco Institute Director of Statistics; and several of the Defendants’ research directors, including William Bates of Liggett, I.W. Hughes of B & W, Murray Senkus of Reynolds, Alexander Spears of Lorillard, and Helmut Wake-ham of Philip Morris; and several CTR Special Project funding recipients, including Hans Eysenck, Richard Hickey, Hans Selye, and Carl Seltzer. 503654881-4885 (U.S. 88413); 105394371-4388 (U.S. 88414).

266. In general, however, Defendants’ General Counsels would advise attorneys at Jacob, Medinger & Finnegan or Shook, Hardy & Bacon whether or not their companies would agree to fund the recommended CTR Special Projects. The following are but a few examples: American: TLT0960501-0501 (U.S. 87682); ATX300000157-0157 (U.S. 21130). B & W: 521031038-1038 (US 20889); 521028861-8861 (U.S. 52692*); 2050987576-7576 (U.S. 27065); 521031875-1875 (U.S. 30467); 521031322-1325 (U.S. 30463); 521031846-1846 (U.S. 30465); 521029712-9713 (U.S. 30451). Lorillard: 01243259-3259 (U.S. 20041); 01240219-0219 (U.S. 26444); 01334994-4994 (U.S. 26475); 01338114-8114 (U.S. 26565); 01336286-6286 (U.S. 26527); 01338207-8207 (U.S. 26566); 013359225922 (U.S. 20045); 80412203-2203 (U.S. 21060); 85171343-1344 (U.S. 22042); 80412199-2199 (U.S. 21059); 91821884-1884 (U.S. 57129); 1240455-0455 (U.S. 26447); 01240436-0436 (U.S. 26445); 01336587-6587 (U.S. 26543); 01336855-6855 (U.S. 26545); 01336555-6555 (U.S. 26541); 004999359935 (U.S. 29415); 01335470-5471 (U.S. 26492); 01335522-5522 (U.S. 26495); 01335570-5570 (U.S. 26497); 01335958-5958 (U.S. 26513); 01338086-8086 (U.S. 26564); 01338514-8514 (U.S. 26569); 01336289-6289 (U.S. 26528); 01337806-7806 (U.S. 26556); 01336501-6503 (U.S. 26536); 013365046505 (U.S. 26537); 01336190-6190 (U.S. 26521); 01338062-8062 (U.S. 26563); 01337090-7090 (U.S. 26549); 01334735-4735 (U.S. 26469); 01336268-6268 (U.S. 26524); 01336271-6271 (U.S. 26526); 01336959-6959 (U.S. 26546); 01335008-5008 (U.S. 26476); 01335403-5403 (U.S. 86292); 013379947994 (U.S. 26562); 01337733-7733 (U.S. 26553); 01337962-7962 (U.S. 26557); 01337543-7543 (U.S. 26551); 01336249-6249 (U.S. 26523); 01336089-6089 (U.S. 26518); 01335396-5396 (U.S. 26486); 01336438-6438 (U.S. 26531); 80412203-2203 (U.S. 21060); 85171343-1344 (U.S. 22042); 804121992199 (U.S. 21059); 87598541-8541 (U.S. 56250). Reynolds: 507731453-1453 (U.S. 29876); 503655278-5278 (U.S. 21683); 507731762-1762 (U.S. 20785); 507731377-1377 (U.S. 29865); 507731370-1370 (U.S. 29863); 508371649-1649 (U.S. 86295); 03751438-1439) (U.S. 29332); 507731343-1343 (U.S. 29861); 503645683-5683 (U.S. 29698); 507737625-7625 (U.S. 29912A); 507731653-1653 (U.S. 22769); 507731427-1427 (U.S. 29871); 50731762-1762 (U.S. 20785); 507731504-1504 (U.S. 51245); 507877123-7123 (U.S. 29923); 507731975-1975 (U.S. 29900); 507731649-1649 (U.S. 29889); 507731757-1757 (U.S. 29895); 507732210-2210 (U.S. 29901); 507731486- *98 1486 (U.S. 29882); 507731727-1727 (U.S. 29893); 507731568-1568 (U.S. 29885); 507731646-1646 (U.S. 29887); 507731972-1972 (U.S. 29899); 507731572-1572 (U.S. 29886). Liggett: 2015031514-1514 (U.S. 20316); LG2002533-2533 (U.S. 21198). Philip Morris: 1005053953-3953 (U.S. 20198); 1005053931-3931 (U.S. 86298). Philip Morris Companies: 2015047160-7160 (U.S. 20326); 2015006925-6925 (U.S. 20310); 2015006923-6923 (U.S. 23047).

267. Once the General Counsels had approved a CTR Special Project, attorneys from Jacob, Medinger & Finnegan or Shook, Hardy & Bacon would advise CTR that the CTR Special Project had been approved. CTR would then assign each CTR Special Project a number and the CTR staff would administer and distribute the funds for that CTR Special Project to the recipient or his or her affiliated research institution from a separate bank account maintained by CTR for only the funding of CTR Special Projects. For example, on June 27, 1968, Ed Jacob of Jacob, Medinger & Finnegan sent a letter to W.T. Hoyt, Executive Director of CTR, with respect to approval of CTR Special Project funding for A. Clifford Barger, and requested: “[Wjould you please assign a CTR SP Number to the project and let me know what that number is.” , McAllister PD, United States v. Philip Morris, 5/24/02, 92:19-95:3, 136:2-136:7; Hoel PD, United States v. Philip Morris, 6/27/02, 56:9-20, 57:13-18; 515772203-2211 (U.S. 87024); see also McAllister WD, 162:4-18.

268. CTR Special Projects were not part of CTR’s general fund budget; CTR’s members provided the funding for CTR Special Projects in separate transactions. Each company — Philip Morris, Reynolds, Lorillard, Liggett, B & W, and American — could decide whether or not to contribute to a particular project. The division of costs, however, was usually based upon the companies’ respective market shares and the companies sent their share of a project’s cost directly to CTR and its separate account for Special Projects. CTR personnel often sent letters to the General Counsels of the six companies requesting payments for the CTR “Special Projects Fund.” Hoel PD, United States v. Philip Morris, 6/27/02, 66:10-67:10; McAllister WD, 161:14-16; 680305856-5858 (U.S. 30887); CTRSP-FILES026615-6615 (86302); 81616878-6882 (31968).

269. Letters advising of the funding of a CTR Special Project were sent directly from CTR to the CTR Special Project recipient. CTRSP-FILES010602-0603 (U.S. 32710); CTRSPFILES011331-1331 (U.S. 32718); CTRSP-FILES011338-1338 (U.S. 32720); CTRSP-FILES0077907790 (U.S. 32683); McAllister WD, 162:14-15.

270. CTR Special Project recipients were instructed to use an acknowledgment line in publications resulting from CTR Special Project funding which was different from the acknowledgment line recipients of CTR regular grants were instructed to use in their publications. The acknowledgment line, used by CTR Special Project recipients did not disclose that their research program was undertaken at the specific request of Defendants for predominantly litigation purposes and was not screened and approved by the CTR SAB. McAllister PD, United States v. Philip Morris, 5/24/02, 145:23-149:18.

271.CTR did not include information about CTR Special Project research in its Annual Reports, which were widely distributed to medical editors at newspapers, medical editors for television programs, deans of colleges and universities in the United States, libraries at colleges and universities, college and university grant offices, the CTR board of directors, members of the CTR Scientific Advisory Board, CTR grantees, CTR Class A and B mem *99 bers, and the Tobacco Institute, and contained information about current and terminated grants-in-aid, grantees, and their institutions. CTR also did not include information about CTR Special Projects in press releases. McAllister WD, 164:17-24; McAllister TT, 3/21/05, 16167:18-16168:12, 16182:3-11; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 55:1-9, 177:14-17.

272. CTR Special Project funding ended sometime around 1990. USX6390001-0400 at 0017 (U.S. 89555). Thereafter, Philip Morris, Reynolds, Lorillard, Lig-gett, B & W, and American continued to jointly fund research projects on behalf of the Enterprise through Lawyers Special Accounts, discussed further below. For example, on March 2, 1990, Stevens sent a letter to Patrick Sirridge of Shook, Hardy & Bacon, enclosing a check for $46,461, which represented Lorillard’s share of joint funding for Theodor Sterling, a longtime CTR Special Projects grantee. Stevens noted “that this is no longer a CTR project, but is now being funded directly by the Companies and administered as a Special Research Project through your firm.” 87598486-8486 (U.S. 21096).

273. On March 7, 1990, Wayne Juchatz of Reynolds sent a letter to Sirridge enclosing Reynolds’ portion for the continued funding of Sterling. On March 19, 1990, Paul Randour of American also sent a letter to Sirridge indicating approval of the joint funding of Sterling. On July 23, 1990, Ernest Pepples of B & W sent a letter to Sirridge enclosing a check for $65,579, which represented B & W’s share of funding for Sterling. Pepples sent another contribution for Sterling’s work in 1991. 87598486-8486 (U.S. 21096); 507731678-1678 (U.S. 29892); ATX300004011-4011 (U.S. 21131); 521100040-0040 (U.S. 20893); 91765001-5001 (U.S. 32125).

274. On September 26, 1990, Patrick Sirridge of Shook, Hardy & Bacon sent a letter to Wayne Juchatz of Reynolds, Josiah Murray of Liggett, Ernest Pepples of B & W, Paul Randour of American, Arthur Stevens of Lorillard, and Charles Wall of Philip Morris concerning funding for Rodger Bick, a practicing oncologist-hematologist who had been collecting data on lung cancer incidence in Kern County, California. Sirridge noted that

[f]or over 10 years, Dr. Rodger Bick’s research on lung cancer has been supported under a CTR Special Project. Dr. Bick has requested that his support be renewed so that he can continue the work. We recommend that this project be approved in the amount of $40,404.32 and be funded directly by the companies.

Philip Morris, Reynolds, B & W, Lorillard, and American all agreed to jointly fund the continued research. 86002659-2661 (U.S. 32046); 507731850-1851 (U.S. 86308); 680712948-2948 (U.S. 30912); 512678317-8317 (U.S. 30044); 2015002794-2794 (U.S. 20307); 507731849-1849 (U.S. 76279); 86002653-2653 (U.S. 32045); 87688005-8005 (U.S. 32060); 91768262-8262 (U.S. 32126).

275. In 1990, the companies continued to jointly fund the work of Alvan Feinstein that had previously been funded as a CTR Special Project on behalf of the Enterprise. ATX300004098-4098 (U.S. 58613); 507731403-1403 (U.S. 29870).

276. By letter dated February 26,1991, Sirridge requested continued funding from Randour of American and Juchatz of Reynolds for Carl Seltzer, a long-time CTR Special Project recipient. Sirridge advised that B & W, Lorillard, and Philip Morris had already agreed to the continued funding. BWX0003847-3848 (U.S. 36212).

*100 277. In March 1992, Bernard O’Neill of Shook, Hardy & Bacon sent a letter to Wayne Juchatz of Reynolds, Ernest Pep-ples of B & W, Paul Randour of American, Arthur Stevens of Lorillard, and Charles Wall of Philip Morris, and copied Steven Parrish of Philip Morris, recommending another extension of joint industry funding of Theodor Sterling. 2015002947-2955 at 2947-2948 (U.S. 20308).

278. On May 18, 1992, Charles Wall, Vice President and Associate General Counsel of Philip Morris Companies, sent a letter to O’Neill of Shook, Hardy & Bacon enclosing a check representing Philip Morris Companies’ contribution to Sterling’s research efforts. 2023230770-0770 (U.S. 20384).

c. Scientists Funded Through CTR Special Projects

279. Documents reflect that the following scientists were funded through the CTR Special Project program: William H. Alban; Austin; Domingo M. Aviado; Roberto Bachi; Claus B. Bahnson; William J. Bair; Clifford A. Barger; Bevilacqua; Cesare Biancifiori; Rodger L. Bick; Herman V. Boenig; Brian Bozelka; Lyman A. Brewer, III; Geoffrey L. Brinkman; Barbara B. Brown; Brunner; Victor B. Buh-ler; John Robert Carter; Jeffrey N. Clark; Richard C. Clelland; Irven De-Vore; Salvatore R. DiNardi; William L. Dunn (Philip Morris); Kurt Enslein; Hans J. Eysenck; Alvan R. Feinstein; T.N. Finley; G.H. Friedell; H. Hugh Fudenberg; Arthur Furst (CTR); Arvin S. Glicksman; Victor Gould; John G. Gruhn; Michael R. Guerin; William H. Gutstein; Frederick Hecht; Norman W. Heimstra; Doris L. Herman; Katherine M. Herrold; Richard J. Hickey; Robert C. Hockett (CTR); Ebbe Curtis Hoff; Freddy Homburger; E. Lee Husting; Duncan Hutcheon; Joseph M. Janis; Alfred Bennett Jenson; William V. Judy; Marvin A. Kastenbaum (Tobacco Institute); Leo Katz; David M. Kissen; Jerome Kleinerman; Suzanne Knoebel; Lawrence L. Kuper; Hiram T. Langston; Mariano LaVia; Leonard A. Lee; Samuel B. Lehrer; Eleanor J. MacDonald; Thomas F. Mancuso; J.H. Man-hold; Marcus M. Mason; Neal L. McNi-ven; Aldo Misc.ari; Kenneth M. Moser; Harry Ness; S. O’Shea; Joseph M. Ogura; Ingram Olkin; Oser; Harold Perry; Charles D. Puglia; L.G.S. Rao; Herbert L. Ratcliffe; Vernon Riley; J.B. Roberts; Jay Roberts; Gray Robertson; Lisa Ro-senblatt; Henry Rothschild; Linda Rus-sek; Henry I. Russek; John Salvaggio; G.N. Schrauzer; Segi; Carl C. Seltzer; Hans Selye; Lucio Severi; James F. Smith; Louis A. Soloff; Darrel H. Spack-man; Douglas H. Sprunt; R. Stankus; Frederick J. Stare; Russell Stedman; Theodor D. Sterling; David A. Sterling; Harold L. Stewart; Guiseppe Teti; Thomas; J.R. Trinidad; James A. Wakefield; John S. Waugh; John Vivian Wells; Carolyn KWells; Travis Winsor; George Wolf; and J. Yerushalmy. 92613920-4198 (U.S. 32132); 2048925665-5704 (U.S. 38726); 503654113-4113 (86310); 503654114-4153 (86311).

3. Lawyers’ Special Accounts

280. In addition to CTR Special Projects, Philip Morris, Reynolds, Lorillard, Liggett, B & W, and American funded still another category of special research projects on behalf of the Enterprise, often referred to as Lawyers’ Special Accounts. These accounts were directed by industry lawyers, including the Ad Hoc Committee. Stevens WD, 16:17-17:19, 18:19-19:4; 2045752106-2110 at 2107 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902).

281. Defendants would often fund the same scientist through both CTR Special Projects and Lawyers’ Special Accounts. *101 For example, on September 26, 1977, Edwin Jacob sent a letter to Shinn, which enclosed a proposal from L.G.S. Rao. Jacob noted that

it now appears that this research is not appropriate for consideration as a CTR Special Project. Nevertheless, the work is of obvious value.... Dr. Rao should be a most effective proponent of some of his views and, under appropriate circumstances, might well be able to provide useful information to a Congressional Committee or other body inquiring into certain aspects of smoking and health.... For these, reasons, I would recommend that we fund Dr. Rao as a special project through Special Account No. 4.

503673274-3275 (U.S. 29716).

282. On September 4, 1986, Patrick Sirridge of Shook, Hardy & Bacon sent a letter to General Counsel Alexander Holtz-man of Philip Morris, Wayne Juchatz of Reynolds, Josiah Murray of Liggett, Ernest Pepples of B & W, Paul Randour of Reynolds, and Arthur Stevens of Lorillard, recommending that Richard Hickey receive continued funding:

Because Dr. Hickey no longer has an official university position, we believe it is an appropriate time for his CTR Special Project support to end. However ... Dr. Hickey [should be paid] for one year, $12,000. The consultancy would be paid from Shook Hardy & Bacon Special Account.

507875961-5962 at 5961 (U.S. 20796).

283. Another example is the multiple source funding for Dr. Hans Eysenck’s work on the relationship between lung cancer and the patient’s “emotional makeup.” Eysenck received CTR Special Project funding after initially applying — and being turned down' — for a CTR SAB grant in 1969. Eysenck continued to receive CTR Special Project funding for a number of projects through 1986. Eysenck also received CTR SAB grant funding from 1973 through 1976. And Jacob also recommended to Thomas Ahrensfeld of Philip Morris, Max Crohn of Reynolds, Joseph Greer of Liggett, Arnold Henson of American, Ernest Pepples of B & W, and Arthur Stevens of Lorillard that Eysenck receive funding through Special Account No. 4 in 1978 and 1979. CTRSP-FILES0088068806 (U.S. 21168); CTRSP-FILES008804-8804 (U.S. 21167); CTRSP-FILES 08799-8799 (U.S. 21165); HK1698002-8002 (U.S. 21473); 507731385-1385 (U.S. 20784); 03747024-7205 (U.S. 21538); 507731387-1388 (U.S. 29868).

284.Lawyers’ Special Accounts were primarily handled through Special Account No. 3, Special Account No. 4, Special Account No. 5, and separate institutional grants, discussed below.

a. Special Account No. 3

285. Special Account No. 3 was not used to fund research, but to coordinate smoking and health databases for use by the members of the Enterprise, especially litigating counsel. Contributors to Special Account No. 3 included: American, B & W, Liggett, Lorillard, Philip Morris, and Reynolds. 682150942-0942 (U.S. 86491); Stevens WD, 20:3-7.

b. Special Account No. 4

286. From 1969 through at least 1989, American, Philip Morris, Reynolds, B & W, Liggett, and Lorillard contributed to Special Account No. 4, which was used on behalf of the Enterprise for lawyers’ special project funding, consultancy fees, and witness expenses. Stevens WD, 16:17-17:19, 18:9-19:4; 80680301-0303 (U.S. 21066); 80680283-0285 (U.S. 21065); 2015028333-8336 (U.S. 20314); 1005122219-2222 (U.S. 20214); 1005122237-2240 (U.S. 20215); *102 1005122246-2249 (U.S. 20216); 1005122257-2260 (U.S. 20217); 1005122262-2265 (U.S. 20218); 1005122267-2271 (U.S. 20219); 03638929-8931 (U.S. 20059); 2015042056-2059 (U.S. 21862); 2015042069-2072 (U.S. 22949); 507875857-5859 (U.S. 20795); 507876993-6994 (U.S. 20799); 507875832-5834 (U.S. 20794); 507876986-6987 (U.S. 20798); 507875698-5700 (U.S. 22953); ATX140000938-0939 (U.S. 21122).

287. A May 18, 1971 document prepared by Arthur Stevens of Lorillard noted the nature of “Special Account No. 4, which is used for Congressional and regulatory matters.” 806802290229 (U.S. 31967).

288. A September 19, 1973 document prepared by DeBaun Bryant of B & W stated that Special Account No. 4

is used to maintain expenses incurred for certain research work such as that done by Arthur D. Little on multivariate analysis; work performed by witnesses in preparation for Congressional or federal agencies hearings. The following companies contribute equal amounts to this account: American Brands, B & W, Liggett & Myers, P. Lorillard, Philip Morris, Reynolds.

682150942-0942 (U.S. 86491).

289. A December 9, 1977 document prepared by Max Crohn, Assistant General Counsel for Reynolds, further described Special Account No. 4: “Special Account No. 4 has been used to pay expenses and fees connected with expert consultancies and statement preparation.” 03638986-8987 (U.S. 86815).

290. A document titled “Special Account No. 4 — funding of Crohn Subcommittee Expenses and General Review” indicated that during a “General Counsel meeting” on January 4, 1978, it was agreed that “Special Account No. 4 could be used for paying fees and expenses of expert witnesses willing to prepare statements or consult.” 03658901-8901 (U.S. 20061).

291. A January 27, 1978 memorandum to the file prepared by Arthur Stevens of Lorillard noted that:

At a Committee of Counsel meeting on January 4, 1978 the future handling of Special Account No. 4 was discussed. Each project to be funded out of Special Account No. 4 will be the subject of specific prior approval by the Committee of Counsel. However, blanket approval was given by the Committee of Counsel for expenditures out of the account not to exceed $10,000 per year, without the need for prior approval. L & M noted that it will participate in the funding of Special Account No. 4 during 1978 only to the extent that it did in 1977 (approximately $40-$45,000?).

85675219-5219 (U.S. 32009).

292. A February 9, 1978 memorandum from William Shinn of Shook, Hardy & Bacon to Thomas Ahrensfeld, General Counsel for Philip Morris; Max Crohn, Assistant General Counsel for Reynolds; Joseph Greer, Vice President and General Counsel for Liggett; Arnold Henson, General Counsel for American; Ernest Pep-ples, Vice President and General Counsel for B & W; and Arthur Stevens, General Counsel for Lorillard, stated in part:

Some of you have asked for additional information concerning funding through Special Account No. 4. This account is administered by Jacob & Medinger and Ed Jacob and I have reviewed the enclosed report. I also enclose a memorandum with regard to funding of projects and would appreciate your advice if you find this to be incorrect in any way. There is probably no need for you to retain those notes once you have satisfied yourself of the current situation.

*103 503655086-5088 at 5086 (U.S. 20720); 503655086-5088 (U.S. 75190).

293. Another 1978 document described the present and future commitments of Special Account No. 4 funds and the procedure for the approval of emergency matters. The list of industry witnesses included: Aviado, Brown, Eysenck, Spiel-berger, Hiñe, Ridgon, Seltzer, Rao, Booker, E. Fisher, Valentin, Heimstra, Dunlap, Farris, F. Fisher, Hickey, Moser, Okun, Sterling, Weil, Jones, Bick, Soloff, Kuper, Harvard Medical School (Huber), Stanford Research Institute, Franklin Institute, and the Industry Research Liaison Committee. LG2024193-4196 at 4195 (U.S. 21212); 89694310-4312 (U.S. 32089); 89694319-4325 (U.S. 32091); 89694313-4318 (U.S. 32090).

294. In the 1980s, Defendants Philip Morris, Reynolds, B & W, American, Lor-illard, and Liggett, through the law firm of Shook, Hardy & Bacon, contracted with Battelle Laboratories of Columbus, Ohio to conduct studies on tobacco smoke and nicotine in the environment. Special Account No. 4 was used to fund the project. 01348599-8599 (U.S. 87689); 01348503-8503 (U.S. 86316); 01348490-8490 (U.S. 86317); 01348473-8473 (U.S. 86318); 01348483-8488 (U.S. 86319); 01348489-8489 (U.S. 86320); 01348465-8465 (U.S. 86321); 01348315-8315 (U.S. 26580); 5026677897790 (U.S. 29584); 503673514-3515 (U.S. 29720); 521028996-8997 (U.S. 30443); 01348441-8441 (U.S. 34535); 01348727-8727 (U.S. 86322); 521028981-8982 (U.S. 30442); 503673416-3417 (U.S. 29719); 2010045875-5876 (U.S. 36519); 01346204-6205 (U.S. 34532); 01346206-6208 (U.S. 34533).

295. A February 22, 1980 letter from Arthur Stevens, Senior Vice President-General Counsel of Lorillard, to Timothy Finnegan of Jacob & Medinger and copied to Thomas F. Ahrensfeld, Alexander Holtzman, Max H. Crohn, Joseph H. Greer, Arnold Henson, Ernest Pepples, William W. Shinn, Ed Jacob, and Janet C. Brown acknowledged exactly why Special Account No. 4 was used to fund scientists. Stevens stated:

I am mindful of the continuing mandate with which your office, Shook, Hardy and others have been charged by your respective clients on behalf of the Industry: that is, to find witnesses and researchers -and, if necessary in order to determine the feasibility of developing a relationship with them, engage them as consultants, or as researchers on initially modest projects.... [T]his [is an] important aspect of the Industry’s work, that is, to attempt to posture ourselves to defend product liability litigation and related attacks on our products.

BWX0004097-4099 (U.S. 36218); 85676690-6692 (U.S. 32012); 1005146510-6512 (U.S. 36118); 01110668-0670 (U.S. 87679); 01335053-5055 (U.S. 26480); 85676690-6692 (U.S. 32012).

296. As with CTR Special Projects, progress and status reports of Lawyers’ Special Accounts projects were sent to Committee of Counsel members. For example, on March 27, 1980, Edwin Jacob sent a letter to Thomas Ahrensfeld, Max Crohn, Joseph Greer, Arnold Henson, Ernest Pepples, and Art Stevens, enclosing research papers “in part supported by the consultation research funds you have provided to Professor Eysenck through Special Account #4.” 521029758-9788 (U.S. 30452).

297. On March 28, 1980, Jacob sent a letter to Thomas Ahrensfeld, Max Crohn, Joseph Greer, Arnold Henson, Ernest Pepples, and Art Stevens enclosing a progress report from Professor Spielberger, a recipient of Special Account No. 4 funding. 521032463-2496 (U.S. 30476); 500515939-5939 (U.S. 29465); 502822004-2004 (U.S. *104 29586); 01355540-5540 (U.S. 26583); BWX0002848-2848 (U.S. 36175).

298. On September 10, 1981, a report was prepared on “Meeting of Company Counsel and Ad Hoc Committee Members” which discussed special projects and the Literature Retrieval Division. In it, the following comments were attributed to Edwin Jacob: “These ‘special projects’ are litigation and hearing oriented,” and:

Difference between C.T.R. and Special Four (lawyers’ projects). Director of C.T.R. reviews special projects — if project was problem for C.T.R., use Special Four. Also, if there are work product claims, need the lawyers’ protection ... done through Special Four because of possibility that C.T.R. would be subpoenaed.

The comment, “Concerned that science has become diluted and secondary to lawyers’ advocacy interests,” was attributed to Stevens of Lorillard. Thomas Bezanson of Chadbourne & Parke also prepared a memorandum regarding the September 10, 1981 meeting. 2023918181-8185 at 8181CU.S. 20397); 2045752086-2093 (U.S. 20466); ATX9275490271-0280 (U.S. 36231).

299. A January 10, 1983 chart demonstrates that Defendants jointly funded through Special Account No. 4 both consultancies (listed were Domingo Aviado, Theodore Blau, Walter Booker, Marc Mi-cossi, Ragner Rylander, Carl Seltzer, and Murray Senkus of Reynolds) and research projects (listed were Battelle Columbus Laboratories, Melvin First, Arthur Furst, Nancy Mello and Jack Mendelson, L.G.S. Rao, and Charles Spielberger). This chart was sent on January 11, 1983, by Patrick Sirridge of Shook, Hardy & Bacon to Joseph Greer, General Counsel for Liggett; Arnold Henson, General Counsel for American; Alexander Holtzman, General Counsel for Philip Morris; Ernest Pep-ples, General Counsel for B & W; Arthur Stevens, General Counsel for Lorillard; and Samuel Witt, General Counsel for Reynolds. LG2002618-2626 (U.S. 21200); LG2002617-2617 (U.S. 21199); 1005061636-1636 (U.S. 35962); 1005061637-1645 (U.S. 35963).

300.Special Account No. 4 was first administered by Jacob & Medinger and then by Shook, Hardy & Bacon starting in 1986. Attorneys from both firms would periodically request contributions from Philip Morris, Reynolds, American, B & W, Lor-illard, and Liggett. The companies were also sent accountant’s reports regarding the activity in the account. 5078771737174 (U.S. 20800); 507877176-7176 (U.S. 29925); 680302487-2487 (U.S. 30885); 86002376-2377 (U.S. 32044).

301. In 1986, Shook, Hardy & Bacon reminded Committee of Counsel members that “[y]ou will recall that Special Fund 4 also is used to cover certain witness development expenses incurred by national litigation counsel.” 507877173-7174 at 7173 (U.S. 20800).

302. General Counsel from Philip Morris, Reynolds, Lorillard, Liggett, B & W, and American and lawyers from Jacob, Medinger & Finnegan and Shook, Hardy & Bacon made recommendations with respect to the funding of Special Account No. 4 projects. For example, on February 9, 1978, William Shinn of Shook, Hardy & Bacon sent a letter to Thomas Ahrensfeld, General Counsel of Philip Morris; Max Crohn, General Counsel of Reynolds; Joseph Greer, General Counsel of Liggett; Arnold Henson, General Counsel of American; Ernest Pepples, General Counsel of B & W; and Arthur Stevens, General Counsel of Lorillard, recommending the approval of funding for Hans Eysenck through Special Account No. 4. 03638976-8979 (U.S. 46483).

*105 303. On February 12, 1982, Pepples sent a letter to Patrick Sirridge of Shook, Hardy & Bacon, recommending the renewal of an annual grant to Arthur Furst be paid from Special Account No. 4. 521029995-0008 (U.S. 20887).

304. Such industry attorney recommendations lasted from at least the 1980s through the early 1990s. 01335056-5057 (U.S. 26481); 01347171-7172 (U.S. 26579); 01346134-6135 (U.S. 26577); 1005125796-5796 (U.S. 36096); 1005125153-5154 (U.S. 36085); 1005047922-7923 (U.S. 35938); 1005064674^674 (U.S. ^ 35974); 1005064613^613 (U.S. 35970); "03751441-1442 (U.S. 29333); 80411597-1598 (U.S. 31961); 86002656-2656 (U.S. 56082); 86002593-2594 (U.S. 56081).

305. Documents reflect that, at a minimum, the following individuals and organizations received funding through Special Account No. 4 beginning in the 1960s and ending in the 1990s: Able-Lands, Inc.; Lauren Ackerman; ACVA Atlantic Inc.; George Albee; Aleph Foundation; Arthur D. Little, Inc.; Aspen Conference; Atmospheric Health Sciences; Domingo Aviado; James Ballenger; Alvan L. Bar-ach; Walter Barker; Broda O. Barnes; Battelle Columbus Laboratories; Battelle Memorial Institute; Walter Becker; Peter Berger; Rodger L. Bick; Billings & Gussman, Inc.; Richard Bing; BioRe-search Laboratories; Theodore Blau; Irvin Blose; Walter Booker; Evelyn J. Bowers; Thomas H. Brem; Lyman A. Brewer, III; Brigham Young University; Oliver Brooke; Richard Brotman; Barbara B. Brown; K. Alexander Brownlee; Katherine Bryant; Victor B. Buhler; Thomas Burford; J. Harold Burn; Marie Burnett; Maurice Campbell; Carney Enterprises, Inc.; Duane Carr; Rune Ced-erlof; Domenic V. Cicchetti; Martin Cline; Code Consultants Inc.; Cohen, Co-leghety Foundation, Inc.; Colucci, & Associates, Inc.; Computerland; W. Clark Cooper; A. Cosentino; Daniel Cox; Gertrude Cox; CTR; Geza De Takato; Bertram D. Dimmens; Charles Dunlap; Henry W. Elliott; Engineered Energy Mgt. Inc.; Environmental Policy Institute; J. Earle Estes; Frederick J. Evans; William Evans; Expenses related to Congressional Hearings in Washington D.C.; Hans J. Eysenck; Eysenck Institute of Psychiatry; Jack M. Farris; Sher-win J. Feinhandler; Alvan R. Feinstein; Herman Feldman; Edward Fickes; T. Finley; Melvin First; Edwin Fisher; R. Fisher; Merritt W. Foster; Richard Freedman; Herbert Freudenberger; Fu-denberg; Arthur Furst; Nicholas Gerber; Menard M. Gertler; Jean Gibbons; Carl Glasser; Donald Goodwin; B. Greenberg; Alan Griffen; F. Gyntelberg; Harvard Medical School; Hearings-Kennedy-Hart Bill; William Heavlin; Norman Heimstra; Joseph Herkson; Richard J. Hickey; Carlos Hilado; Charles H. Hiñe; Hine, Inc.; Harold C. Hodge; Gary Huber; Wilhelm C. Hueper; Darrell Huff; Duncan Hutcheon; Industry Research Liaison Committee; Information Intersciences, Inc.; International Consultancy; International Technology Corporation; International Information Institute, Inc.; J.B. Spalding Statistical Service; J.F. Smith Research Account; Jacob, Medinger & Finnegan; Joseph Janis; Roger Jenkins; Marvin Kastenbaum; Leo Katz; Marti Kirschbaum; Kravetz Levine & Spotnitz; Lawrence L. Kuper; Mariano La Via; H. Langston; William G. Leaman; Michael Lebowitz; Samuel B. Lehrer; William Lerner; Edward Raynar Levine; G.J. Lieberman; S.C. Littlechild; Eleanor Macdonald; Thomas Mancuso; Nathan Mantel; R. McFarland; Meckler Engineering Group; Milton Meckler; Nancy Mello; Jack Mendelson; Michigan State University; Marc Micozzi; Irvin Miller; K. Moser; Albert Niden; Judith O’Fal- *106 Ion; John O’Lane; William Ober; J.H. Ogura; Ronald Okun; Ingram Olkin; Thomas Osdene (Philip Morris); Peat, Marwick Main & Co.; Thomas L. Petty; Pitney, Hardin & Kipp; Leslie Preger; Walter J. Priest; R. Proctor; Terrence P. Pshler; Public Smoking Research Group; R.W. Andersohn & Assoc.; L.G.S. Rao; Herbert L. Ratcliffe; Attilio Renzetti; Response Analysis Project; Response Analysis Consultation; R.H. Rigdon; Jay Roberts; Milton B. Rosenblatt; John Ro-sencrans; Walter Rosenkrantz; Ray H. Rosenman; Linda Russek; Henry Rus-sek; Ragnar Rylander; George L. Saiger; D.E. Sailagyi; I. Richard Savage; Richard S. Schilling; Schirmer Engineering Corp.; S. Sehor; G.N. Schrauzer; Charles Schultz; John Schwab; Carl L. Seltzer; Murray Senkus (Reynolds); Paul Shalmy; R. Shilling; Shook, Hardy & Bacon; Henry Shotwell; Allen Silber-berg; N. Skolnik; JF Smith; Louis A. Soloff; Sheldon C. Sommers (CTR); JB Spalding; Charles Spielberg; Charles Spielberger; Lawrence Spielvogel; St. George Hospital & Medical School; Stanford Research Institution Project; Russell Stedman; Arthur Stein; Elia Sterling; Theodor Sterling; Thomas Szasz; The Foundation for Research in Bronchial Asthma and Related Diseases; The Futures Group; Paul Toannidis; Trenton, New Jersey Hearings; Chris P. Tsokos; University of South Florida; Helmut Valentin; Richard Wagner; Norman Wall; Wayne State University; Weinberg Consulting Group; Roger Wilson; Wisconsin Alumni Research Foundation; Jack Wise-man; George Wright; John P. Wyatt; J. Yerushalmy; and Irving Zeidman. 01347232-7243 (U.S. 75293); 03638929-8931 (U.S. 20059); 03746309-6316 at 6313 (U.S. 85355); 03746320-6331 at 6327 (U.S. 75305); 86002410-2413 (U.S. 85716); ATX140000938-0939 (U.S. 21122); 507875698-5700 (U.S. 22953); 507875832-5834 (U.S. 20794); 507875857-5859 (U.S. 20795); 507876993 1005122219-2222 1005122237-2240 1005122262-2265 1005122267-2271 2015028333-8336 1005122246-2249 1005122257-2260 2010047954-7955 2015041994-1997 2015042056-2059 2015042069-2072 ■6994 (U.S. 20799); (U.S. 20214); (U.S. 20215); (U.S. 20218); (U.S. 20219); (U.S. 20314); (U.S. 20216); (U.S. 20217); (U.S. 86358); (U.S. 36654); (U.S. 21862); (U.S. 22949); 507876986-6987 (U.S. 20798); 80680283-0285 (U.S. 21065); 80680301-0303 (U.S. 21066); 86002393-2396 (U.S. 86359).

c. Special Account No. 5

306. Another avenue used by Defendants for joint funding of scientists was the research supported through Lawyers’ Special Account No. 5. In a memorandum dated November 8, 1978 to Thomas Ah-rensfeld of Philip Morris; Joseph Greer, Liggett; Arnold Henson, American; Ernest Pepples, B & W; Henry Roemer, Reynolds; and Arthur Stevens, Lorillard, and copied to Janet Brown of Chadbourne & Parke; DeBaun Bryant, B & W; Max Crohn, Reynolds; Alexander Holtzman, Philip Morris; Lester Pollack, Lorillard; and William Shinn of Shook, Hardy & Bacon, Edwin Jacob of Jacob & Medinger enclosed a two-year, $400,000 research proposal from Alfred M. Freedman and Richard Brotman. Jacob advised: “Janet Brown, Bill Shinn and I have discussed this proposal with [Brotman and Freedman]. We recommend its approval.” The Brotman/Freedman research, related to defining risks and “unhealthy” behavior, was designated by counsel to be a Special Account No. 5 project. 10 521029470-9485 *107 (U.S. 30450); 03639217-9217 (U.S. 29290); 682070027-0027 (U.S. 36145); 03746884-6884 (U.S. 29324).

307. In July 1982, Arthur Stevens of Lorillard sent an updated Brot-man/Freedman proposal to Lorillard scientist Alexander W. Spears for review. In his assessment, Spears concluded that the Brotman/Freedman proposals were of “little potential value to this Industry,” but acknowledged “the area of Brotman’s and Freedman’s value as witnesses in legislative proceedings.” Lorillard participated in the joint funding of the first phase of the project, but did not participate in the second phase. Stevens WD, 16:17-17:3; 01335523-5523 (U.S. 26496); 01335522-5522 (U.S. 26495); 521029470-9485 (U.S. 30450); 01335521-5521 (U.S. 26494).

308. The Brotman/Freedman project was approved in 1982 by four of the Defendants: American, Reynolds, Philip Morris and B & W and ran through the mid-1980s. 521029470-9485 (U.S. 30450); 86002376-2377 (U.S. 32044).

d. Institutional Grants

309. Lawyers’ Special Accounts were also used to pay for the institutional grants funded by Philip Morris, Reynolds, Lorillard, Liggett, B & W, and American. Defendants funded projects at Harvard University, University of California Los Angeles (“UCLA”), and Washington University. Stevens WD, 19:7-15.

310. In a November 17,1978 memorandum, Robert Seligman, Vice President of R & D of Philip Morris, described how Defendants used institutional grants to refurbish their scientific image. Seligman reported that at the meeting Shook, Hardy & Bacon attorney William Shinn had stated:

CTR began to lose their luster in the mid-60’s and the tobacco industry looked around for more beneficial ways to spend their research dollars on smoking and health. It was at this time that special projects were instituted at Washington University, Harvard University, and UCLA.... [T]he industry received a major public relation ‘plus’ when monies were given to Harvard Medical School.

2045752106-2110 at 2107 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902).

311. Defendants’ institutional grant to Washington University in St. Louis was to research the immunologic aspects of cancer. 2045752106-2110 at 2107 (U.S. 20467); 1003718428-8432 at 8429 (U.S. 35902); 01338888-8888 (U.S. 26572); 521033382-3383 (U.S. 30478); 521033485-3486 (U.S. 30479).

312. Defendants’ institutional grant to Harvard University was under the direction of Dr. Gary Huber, who was conducting in vivo and in vitro animal studies on the biologic responses to tobacco smoke. Funding began in 1972, and the participating companies were Defendants American, B & W, Liggett, Lorillard, Philip Morris, Reynolds, along with Larus & Brother, Tobacco Associates, and United States Tobacco. The project was to be funded for a total of $2,792,750 over a five-year period. Arnold Henson of American acknowledged that one of the main reasons for the Harvard project was “the PR value of the Harvard name.” ZN25950-5956 (U.S. 64794); 9550307350737 (U.S. 86365); BWX0004364-4375 (U.S. 36228); 968003136-3137 (U.S. 25857); 961016507-6508 (U.S. 25854); 1000207774-7775 (U.S. 26078); 2015057132-7132 (U.S. 86366); 980076941-6942 (U.S. 86367); BWX0004364-4375 (U.S. 36228); *108 1005053856-3856 (U.S. 20197); 86001059-1071 (U.S. 86369); 968003658-3666 (U.S. 25860); 961017594-7594 (U.S. 86370); 968003658-3666 at 3665 (U.S. 25860); 502026481-6487 (U.S. 29549); 2010048605-8606 (U.S. 36525); 100371866-8669 (U.S. 35905); 2010048831-8834 (U.S. 36526); 961017379-7379 (U.S. 86371); 680260639-0642 (U.S. 30860); 961000834-0834 (U.S. 32366) (Confidential); 01335777-5778 (U.S. 26508); 01335779-5779 (U.S. 26509); 01335794-5794 (U.S. 86374); 01335789-5789 (U.S. 26510); 01347161-7161 (U.S. 86375); 503646200-6200 (U.S. 29701); 01335767-5772 (U.S. 26506); 01335774-5774 (U.S. 26507); 013357615764 (U.S. 26505); 980078407-8411 (U.S. 25865).See Section 111(E)(3)(d), infra, for discussion of the Harvard/Huber research.

313. Joint funding at UCLA began in 1974, and the participating companies were Defendants Philip Morris, Reynolds, and B & W, along with United States Tobacco and Tobacco Associates. ZN25950-5956 (U.S. 64794); TIMN217740-7743 (U.S. 62720); TIMN217738-7739 (US 62719).

F. Committees

1. Research Review Committee, Research Liaison Committee, and Industry Research Committee

314. In February 1974, a consensus had developed among Defendants that an industry committee should be established to review their support of medical research and to make recommendations as to the future course Defendants’ support should take. At a CTR meeting, Lorillard, through its President Curtis Judge, agreed to participate in an increased budget for CTR only on condition that such a review of industry research be undertaken. BWX0007549-7588 (U.S. 86832); ARU1130828-0904 (U.S. 86773).

315.One set of suggested guidelines from the mid-1970s for an Industry Committee for the Review of Industry’s Overall Independent Scientific Research Effort was: (1) to reconsider the CTR research program, both SAB grants and Special Projects; (2) to reconsider non-CTR research projects undertaken by one or more individual tobacco companies; and (3) to consider the establishment of a means of coordinating the research undertaken in (1) and (2). 2015040937-0938 (U.S. 20322); 2015040955-0955 (U.S. 20323); TIOK0032723-2724 (U.S. 63004); 2015057143-7144 (U.S. 87693); 03659038-9039 (U.S. 29304); 2015057135-7136 (U.S. 86379); 2015057134-7134 (U.S. 86380); 2010070308-0308 (U.S. 86381); 2015040955-0955 (U.S. 20323); 2015057145-7150 (U.S. 86384); CTRMM015322-5327 (U.S. 79854).

316.William Smith, Chairman of the Tobacco Institute’s Executive Committee, wrote in April 1974, that agreement had been reached with each of the major manufacturers as to their representative on the “committee to study the research programs funded by our industry, both through CTR and independent projects.” Smith reported that David Hardy of Shook, Hardy & Bacon would chair the committee; Horace Kornegay and William Kloepfer would represent the Tobacco Institute; and William Gardner and Leonard Zahn would represent CTR. Smith stated that the members of the committee were charged with the responsibility for studying industry research programs and research projects funded outside of CTR, such as those at Harvard, Washington University, and UCLA, and reporting their recommendations to the chief executives of the six major cigarette companies — American, B & W, Liggett, Lorillard, Philip Morris, and Reynolds. Meetings of the Industry Research Committee began on May 7, 1974. After meeting several times in 1974, the committee recommended that a Re *109 search Liaison Committee be appointed to serve indefinitely to achieve “a coordinated and informed overview of all industry research.” CTRMN015328-5329 (U.S. 21600); ZN22613-2614 (U.S. 64796); 03659035-9036 (U.S. 29303); LWODJ9055585-5585 (U.S. 26006) (Confidential); LWODJ9055586-5587 (U.S. 26007) (Confidential); LWODJ9055585-5585 (U.S. 26006) (Confidential); LWODJ9055586-5587 (U.S. 26007) (Confidential); BWX0007549-7588 (U.S. 86832); 03659013-9016 (U.S. 29300); LWODJ9055779-5781 (U.S. 26008) (Confidential); LWODJ9055531-5532 (U.S. 26009) (Confidential); 2015040862-0863 (U.S. 36652); ZN22408-2408 (U.S. 86391); CTR98CONG01187-1189 (U.S. 21137); 03540217-0225 (U.S. 22294); LWODJ90555015505 (U.S. 25957) (Confidential); 03659013-9016 (U.S. 29300).

317.Creation of the Research Liaison Committee was approved at a meeting of the Tobacco Institute on October 3, 1974, as a successor to the Research Review Committee which had been established in April 1974. The newly formed Research Liaison Committee existed through early 1978. The aims and functions of the Research Liaison Committee were to devise and implement fiscal and peer review for institutional grants, and to consider and make recommendations with respect to proposals for institutional and other research projects in light of all research efforts in and outside of the industry. Members of the Research Liaison Committee were encouraged to attend meetings with CTR in order to keep informed about its plans and projects. Stevens WD, 29:819; Zahn PD, Cipollone v. Liggett, 12/16/86, 138:2-139:24, 148:12-16; Zahn PD, Cipollone v. Liggett, 12/17/86, 208:20-209:1; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 106:11-22, 114:14-115:4; Zahn PD, Richardson v. Philip Morris, 12/16/98, 375:3-10; Kornegay PD, Cipol-lone v. Liggett, 8/17/94, 196:25-201:2, 208:10-212:18, 213:8-217:8; LWODJ9055332-5332 (U.S. 25953) (Confidential); BWX0007549-7588 (U.S. 86832); BWX0002609-2611 (U.S. 36165); ARU113 08280904 (U.S. 86773); 2015057125-7125 (U.S. 86400); 955002251-2251 (U.S. 32354); 01404441-4441 (U.S. 86401); 70124410-4414 (U.S. 31512); 1003719192-9192 (U.S. 35906); 503673145-3146 (U.S. 86405); 1003719175-9179 (U.S. 86406); PM010430-0437 (U.S. 86408); 1003712682-2688 (U.S. 86409); 1000255997-6001 (U.S. 20086).

318. At its January 1975 meeting, the Research Liaison Committee decided that the expenses of considering the feasibility of research projects and proposals would be funded through the CTR Special Projects fund and funded by those companies agreeing to the research study. The Committee also decided that participating companies would pay for the auditing expenses for the institutional projects at Harvard, UCLA, and Washington University, and discussed problems regarding funding of the Harvard/Huber research project at Harvard Medical School. BWX00026132614 (U.S. 36166); BWX0007549-7588 (U.S. 86832).

319. A report dated November 19, 1977, written by Janet Brown, attorney for American from Chadbourne & Parke, summarized the activity of the Research Liaison Committee from its inception as the Research Review Committee in April 1974 through 1977. Brown advised that American might wish to maintain a representative on the Research Liaison Committee after the departure of its representative, Cyril Hetsko. BWX0007549-7588 (U.S. 20286).

320. In 1978, the budget and direction of the CTR was again an area of concern for Defendants. Accordingly, Defendants proposed that yet another committee be *110 convened again “to take up the general question of what kind of research the industry should be into through CTR or elsewhere.” A Lorillard document dated April 21,1978, also articulated the need for a new committee:

We have again “abdicated” the scientific research directional management of the Industry to the “Lawyers” with virtually no involvement on the part of scientific or business management side of the business.

Industry representatives held meetings and reported to the companies’ General Counsels. The name of this new committee was the Industry Research Committee, which essentially performed the same functions as the prior Research Liaison Committee. 01346204-6205 (U.S. 34532) (emphasis in original); Stevens WD, 29:20-38:15; 95539849-9850 (U.S. 56829); TIOK0032721-2722 (U.S. 63003); 03537201-7201 (U.S. 86411); 680252124-2125 (U.S. 30859); 03638976-8979 (U.S. 20060); BWX0007531-7548 (U.S. 36238).

321. An internal letter from Ernest Pepples, B & W Vice President and General Counsel, to Joseph E. Edens, Charles I. McCarty, I.W. Hughes and DeBaun Bryant dated April 4, 1978, discussed the new committee. Pepples reported:

That Committee, as you know, has a number of disciplines and attitudes represented including research and development, public relations, legal and one CEO (Curt Judge). It is the proper place to take up the general question of what kind of research the industry should be into through CTR or elsewhere. It can also deal with the issue of contract research versus grant research.

680212421-2423 (U.S. 54024); 682338651-8653 (U.S. 22899).

322. The new Industry Research Committee met on November 6, 1978. In attendance were: Ernest Pepples, B & W; Charles Tucker, Reynolds; Arnold Henson, American; Janet Brown, attorney with Chadbourne & Park; James Bowling, Philip Morris; Edwin Jacob, attorney for CTR; and Donald Hoel, attorney with Shook, Hardy & Bacon. An even larger meeting was held on December 13, 1978, and meetings continued throughout 1979, 1980 and 1981 which were attended by Defendants’ representatives and industry attorneys. With respect to the direction and role of CTR, “[i]t was agreed that the CTR role would be one of basic research into the disease areas that have been statistically associated with smoking. CTR would not, however, engage in research designed to test the effects of tobacco smoke or tobacco products in animal or human systems,” contrary to the promises made in the original Frank Statement. Stevens WD, 29:20-36:9; 2075318262-8268 (U.S. 43667); 1000041870-1876 (U.S. 35102); 03677101-7103 (U.S. 29313); 03754196-4198 (U.S. 29342); 521032356-2357 (U.S. 31474); 01346193-6196 (U.S. 20046); 01346186-6186 (U.S. 26578); 01346656-6656 (U.S. 86416); 80419203-9203 (U.S. 21062).

2. Industry Technical Committee

323. TIRC designated the research directors of its tobacco company members as the Industry Technical Committee (“ITC”) in January 1954. The research directors on the first ITC included representatives from American, B & W, Lorillard, Philip Morris, and Reynolds. JH0003950400 (U.S. 21178); TLT0901400-1410 (U.S. 88187); see also USX6390001-0400 at 0011 (U.S. 89555).

324. The ITC provided technical information to the TIRC SAB concerning tobacco, its constituents, and other matters. The chairman of the ITC was invited to sit in on all SAB meetings in order to ensure coordination between the SAB and ITC. *111 Members of the ITC attended SAB meetings and answered questions from the SAB. Zahn PD, Cipollone v. Liggett, 12/16/86, 107:2-11, 107:20-108:23, 113:6-8, 114:6-9; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 77:4-18; CTRMIN-SAB000001-1061 at 0002 (U.S. 21146); CTRMIN-SAB000001-1061, 70011735-1757 (JD 090960); CTRMIN-ITC000009-0011 (JD 95519); ATX300000015-0017 (U.S. 21129); CTRMN039046-9106 (JD 092825); 500500320-0323 (U.S. 20633); 955036231-6240 (U.S. 32364); 950148087-8088 (U.S. 32347); 507079688-9689 (U.S. 29831).

325. At a 1967 ITC meeting held at CTR, with representatives present from CTR, Chadbourne & Parke, Liggett, American, B & W, Reynolds, Lorillard and Philip Morris, Osdene of Philip Morris reported that

Dr. Hockett stated that CTR is moving into an era of active collaboration with the industry and they wish to make the technical committee more effective by including biologists.... Programs will be developed in which Hockett wishes to use the industry technical committee people to give advice which will go into the development of plans for submission to the SAB. C.C. Little would like to meet with this committee either before or after the SAB meeting. He feels that this would be an opportunity to build a creative future and that CTR would move with more speed.

682011463-1466 (U.S. 86418); 1001609316-9320 (U.S. 86419).

326. A subsequent 1967 meeting was called to “organize the Industry Technical Committee.” Present again at the meeting were representatives from CTR, American, B & W, Reynolds, Lorillard, Philip Morris, and Chadbourne & Parke.

It was stated that the Scientific Advisory Board and the C.T.R. staff [were] desirous of obtaining the regular and organized assistance of the industry technical group. Functions of the ITC [were]: 1. To bring its technical know-how to bear on problems in which it is desired. 2. To assist the staff. 3. Make suggestions.... While the makeup of the I.T.C. has usually consisted of the Research Directors of the various participating companies, it was recognized that any company could designate whomever it wished as I.T.C. member.

ATX300008549-8551 (U.S. 58614).

327. A meeting of the ITC was held on April 26, 1968, at the CTR office in New York and was called specifically by W.T. Hoyt of CTR on behalf of the CTR staff. Representatives from CTR, B & W, Loril-lard, Philip Morris, Reynolds, and American attended the meeting. The meeting was called “to hear presentations by the CTR-staff of the contract research program being proposed by Mason Research Institute,” which was to involve large-scale, long-term mouse inhalation experiments. 955033996-4012 (U.S. 32363). It was noted that:

a) the contract status as proposed represents a significant change of “tact” [sic], b) the proposed program represents very considerable increase in costs and outlay, c) and therefore, this entire program may represent a significant “departure from CTR plans and policy.”

955033996-4012 (U.S. 32363).

328. In describing the background for the Mason contract, Arthur W. Burke of American reported that the CTR staff had taken an interest in inhalation toxicology ten years prior:

About this time the CTR-staff began to visit the various grantees to learn what was forthcoming from their studies, and on a visit to the Leuchtenbergers’ laboratory learned that evidence was accu *112 mulating that adenocarcinomas of mouse lung were occurring with smoke inhalations .... “Since foes of Industry might snatch-up such preliminary findings and misuse the information, the CTR staff entertained a limited project at Mason Research Institute, the purpose of which would be to set-up and compare the operation of several animal exposure-smoking machines in one place and at one time, using the same mouse strain, etc. — in short to study the smoking machines per se. This work was initiated at Mason about one year ago.” In the course of these machine evaluations, Mason noted some deficiencies in some of these machines, and the “CTR recognized that they were piddling in some dangerous areas.”

955033996-4012 (U.S. 32363) (emphasis in original).

329. At an October 25, 1968 ITC meeting, there was also a discussion of the relationship between the ITC and the CTR Scientific Advisory Board. Hoyt voiced the opinion that the SAB is considering “more targeted research with closer CTR staff monitoring which would be in a) academia by grants, and b) other places by contract — where necessary.” 955036231-6240 (U.S. 32364).

330. In a 1970 report, the Defendants’ research directors — Helmut Wakeham of Philip Morris; Preston Leake of American; Alexander Spears of Lorillard; Murray Senkus of Reynolds; William W. Bates of Liggett; and I.W. Hughes of B & W— expressed their displeasure with CTR’s research program, its focus on studies of diseases that were associated with smoking, its defensive posture, and its lack of guidance for future strategy of the tobacco industry in the area of smoking and health. The report offered opinions as to how CTR might become more effective as an instrument for the good of the tobacco industry. 1002636362-6365 (U.S. 22998).

331. In the 1960s, the ITC assisted the Tobacco Institute, and ITC members were encouraged to attend meetings at the Tobacco Institute. An ITC meeting at the Tobacco Institute was called “to discuss the possible implications of a $50,000 grant from National Institutes of Health to the F.T.C. laboratory to develop a smoking machine capable of carbon monoxide analysis.” Present at the meeting were representatives of Liggett, American, Reynolds, Lorillard, Philip Morris, B & W, Covington & Burling, and the Tobacco Institute. There was much concern over the possibility that the FTC intended to publish brand carbon monoxide levels. The attendees suggested that Defendants be ready to demand public hearings on methodology and be prepared to “counteract the increasingly irrational public image being drawn by anti-smoking forces” on carbon monoxide hazard. TIMN0134876^877 (U.S. 65574); 950148089-8091 (U.S. 32348).

3. Tobacco Working Group

332. In March 1968, the National Cancer Institute created the Tobacco Working Group (“TWG”) to serve as an advisory group to its Smoking and Health Program which was directed by Dr. Gio B. Gori. 87754028-4373 (U.S. 22259). The Group was composed of a broad cross-section of scientists, researchers, and treating physicians specializing in smoking and health. Four of its members were from the tobacco industry: Murray Senkus, Director of Research for RJR; Alexander Spears, Director of Research and Development for Lorillard; Helmut Wakeham, Vice President of Corporate Research and Development for Philip Morris; and Charles Ken-sler of Arthur D. Little, Inc. By 1969, William Bates, Director of Research at Liggett, was attending TWG meetings, and *113 by 1971,1.W. Hughes of Brown & Williamson had accepted membership. The TWG existed in various forms from 1968 through 1977, when it was dissolved as a cost cutting measure. HHA60600330036 (U.S. 86422); 501555964-5966 (U.S. 22284); LDOJ3002797-2803 (U.S. 86423); LG02674057405 (U.S. 59094*); 680231778-1778 (U.S. 86424); Stevens WD, 43:23-46:9; 680142974-2974 (U.S. 22254); 680142966-2966 (U.S. 30817); 680142967-2967 (U.S. 54018); TLT1022905-2912 (U.S. 86842); TIMN0102540-2560 (U.S. 86843).

333. Industry representatives repeatedly informed the TWG that they were participating in their individual capacities, and not as representatives of their individual tobacco company employers. Moreover, they emphasized that their participation did not represent acceptance of the view that cigarettes were hazardous to health or caused lung cancer. U.S. 88, 489. In his 1968 letter accepting membership in the TWG, Murray Senkus stated “I am in no manner accepting the view (1) that present cigarettes are hazardous or (2) that the smoke of such cigarettes causes or contributes to the development of human lung cancer.” See also U.S. 22263; US 69276; US 22269; US 26069.

334. Participation by industry representatives proved valuable by allowing Defendants to keep abreast of what the United States Government was doing with respect to smoking and health issues. Their participation also provided a mechanism by which Defendants could try to influence the United States Government’s activities in the smoking and health arena. An undated B & W document, discussing United States Department of Health, Education and Welfare activity in the 1960s, clearly articulated the reasons for Defendants’ participation on the TWG:

Of these four actions [taken by the United States Department of Health, Education and Welfare with respect to smoking and health issues], the first three [developing epidemiological evidence linking smoking and certain diseases; launching a program to alert the public about the dangers of smoking; and pushing for legislation which would reduce cigarette consumption] have been of such immediate concern that they have received most of the attention of the tobacco industry. However, the later [initiating a research program designed to produce a “less hazardous cigarette”] is probably as important, or perhaps more important for the long-term future of the industry. Although work in this area is in its initial stages, the direction of this work seems clearly indicated and should be evaluated.

* * *

One can logically expect that any reluctance on the part of industry to voluntarily produce commercial cigarettes on the basis of positive results from this program would result in legislation to force adoption. In all probability, little attention is likely to be given to the commercial acceptability of the [unreadable] from this program.

Since industry has representatives on this committee, it should be possible to remain completely aware of all actions taken and to have at least some influence on these actions. If one assumes complete and frank interchange of information arising from within this committee among all companies, the companies should then operate from a common base.

HHS1330992-0998 (U.S. 76082).

335.Similarly, a March 9, 1972 document drafted by Alexander W. Spears of Lorillard recognized:

*114 If I were to withdraw [from the TWG], Lorillard would lose considerable insight into the workings of the National Cancer Institute program with respect to cigarettes. There is a very real possibility that this program is going to have a profound effect on the cigarette industry, and I believe that we should be aware of these effects as soon as they become clear. We also have some significant influence on the course of the detailed activities and, therefore, some effect on ultimate results.

01240178-0178 (U.S. 22282).

336. Defendants’ approach to the TWG and all Defendants’ related activities were jointly formulated and closely monitored by committees of industry lawyers and executives to ensure that such “participation” in the TWG did not threaten — and indeed served — Defendants’ common purposes. Defendants’ representatives to the TWG regularly reported to their counsel, who kept company executives, CTR, the Tobacco Institute, and one another abreast of TWG activities. 501556259-6263 (U.S. 22283); 501555964-5966 (U.S. 22284); 500502060-2063 (U.S. 22286); 501990370-0374 (U.S. 22287); 1005070117-0121 (U.S. 22288); 1005070122-0122 (U.S. 22903); 680142648-2648 (U.S. 22374); 2015040862-0863 (U.S. 36652); 680143084-3084 (U.S. 22293); 03540217-0225 (U.S. 22294); BWX0003934-3938 (U.S. 86425); 03753993-3994 (U.S. 22295); 03646227-6228 (U.S. 22296); LG0208389-8389 (U.S. 59040).

337. The Enterprise engaged in a concerted effort to prevent, curtail, and ultimately to neutralize the TWG’s efforts to evaluate cigarettes’ effects using an animal inhalation bioassay developed by researcher Oscar Auerbach. 1000298389-8392 (U.S. 26082); 1005086254-6254 (U.S. 86426); 1002906624-6625 (U.S. 86427); 1000298389-8392 (U.S. 26082); 1005086254-6254 (U.S. 86426); 1002906624-6625 (U.S. 86427); 500006051-6051 (U.S. 86428); CTRMN015382-5383 (U.S. 79878). See also Kornegay PD, Cipollone v. Liggett, 12/6/94, 588:11-589:4, 590:2-8, 592:23-594:6, 598:20-604:7.

338. In Auerbach’s study, beagle dogs smoked cigarettes for up to 2.3 years through a throat opening in their windpipes. Two of the eighty-six dogs which started the test developed early squamous cell bronchial carcinoma, the most common lung cancer occurring in humans. An April 3, 1970 report from a United Kingdom tobacco manufacturer, Gallahers, circulated among Defendants, concluded that “we believe the Auerbach work proves beyond a reasonable doubt that fresh whole cigarette smoke is carcinogenic to dog lungs and therefore it is highly likely that it is carcinogenic to human lungs.” US 21688. Dr. Auerbach and his co-researcher E. Cuyler Hammond applied to NCI to conduct follow-up studies on the effects of nicotine on cardiovascular disease in dogs, and made a presentation to the TWG at a meeting in November of 1970. US 29546, 22298.

339. The Tobacco Institute carefully researched Auerbach and his past research projects and shared information with its member companies on behalf of the Enterprise. 2015047506-7506 (U.S. 86431); 508775596-5596 (U.S. 86432); 500006028-6028 (U.S. 86433); 1005086194-6194 (U.S. 86434); 1005086196-6196 (U.S. 86435); 1005086198-6198 (U.S. 86436); 03758481-8482 (U.S. 86437); 1005086201-6201 (U.S. 86438); 2024991017-1017 (U.S. 86439); TIMN221636-1636 (U.S. 86440). Helmut Wakeman indicated in a December 22, 1971 letter to other industry TWG members that “[t]he very great probability that this proposal will be accepted and funded by the N.C.I. is a matter of considerable *115 concern to the tobacco industry.” U.S. 22261.

340. Despite the findings of Defendants’ scientists, which affirmed the significance of the Auerbach study, the Tobacco Institute publically questioned the results. A 1970 Tobacco Institute press release stated, “We have good reason to question whether lung cancer experts in this review group were able to confirm any finding of lung eancer[.]” TIMN0109556-9560 (U.S. 87698); see also CTRMN015379-5379 (U.S. 79876).

341. Representatives of the Defendants also decided to try to block the TWG from replicating Auerbach’s research. Edwin Jacob, counsel to CTR and Reynolds, instructed Reynolds’s scientists Murray Sen-kus and Alan Rodgman, as well as other Defendants’ scientists, to prevent the TWG from performing dog inhalation studies such as those deemed necessary to develop new products. Jacob argued against such studies on the grounds that they would be an admission by Defendants that existing cigarette products were harmful. Moreover, Jacob — an attorney, not a scientist— feared that these experiments might show proof of nicotine habituation. 515872408-2456 at 2424-2429 (U.S. 22261).

342. In his report to the Tobacco Institute Annual Meeting on January 28, 1971, William Kloepfer boasted that

[o]ur constant pressure on Hammond’s and Auerbach’s shaggy — or shabby— dog story has put that work as reported so far into a permanent file marked controversy — especially among scientists. It did more than that. It demonstrated our counterattack capability as a team. During the rest of the year we missed no event worth talking about in which our comment wasn’t issued — and printed and broadcast — the same day.

TIMN0081403-1405 (U.S. 77050).

343. In addition to trying to shape the path of research undertaken by the TWG, Defendants’ lawyers and executives determined that their scientist representatives on the TWG would offer no suggestions about experiments to conduct or projects to pursue in the search for a less hazardous cigarette. 1005056343-6343 at 6343 (U.S. 22272*).

344. Defendants also utilized the relationships they developed with certain government scientists through the TWG. After the TWG was disbanded, they retained two of its members, Dr. Gio Gori, former Chairman of the TWG from NCI and Dr. T.C. Tso from USDA, as consultants. Gori has been a spokesperson and consultant for the industry since leaving the NCI in the 1980s and Philip Morris secured the services of Tso upon his retirement from USDA in 1983. Bloch PD, United States v. Philip Morris, 2/14/02, 1815:20-1819:20; Tso PD, United States v. Philip Morris, 6/5/02, 178:1-181:12, 182:19-183:2, 183:16-184:23; HHS1091046-1048 (U.S. 88738); 6809000350045 (U.S. 21013); 1005082903-2903 (U.S. 21529); TIMN435245-5245 (U.S. 22487); 2050986280-6281 (U.S. 27064); 2023799642-9642 (U.S. 87701); 2000511301-1302 (U.S. 87703); 2000596045-6045 (U.S. 87704); 2001202319-2319 (U.S. 87705).

G. Coordinated Smoking and Health Literature Collection and Retrieval

345. One of Defendants’ paramount objectives has consistently been to avoid the issuance of any liability findings that could result in large damage awards as well as increased public recognition of the harmful effects of smoking. In pursuit of that objective, Defendants collectively gathered, organized, stored, and eventually automated medical and scientific literature related to smoking and health research.

*116 346. According to a February 1969 Lorillard memorandum, Defendants’ “Central File” was started in the late 1950s, was supported financially by all members of the industry, and was supervised by the Ad Hoc Committee. It was eventually consolidated and put under the direct supervision of Defendants’ attorney Edwin Jacob. The “Central File” was a collection of every document which could be found relating to the smoking and health controversy. Beginning in or about 1967, the major tobacco companies, with the exception of Lorillard, also joined together and established an “Information Center” for the collection, summarization, and computerization of all information and documents concerning smoking and health. The purpose of the Information Center was to have information readily available to the industry for litigation and congressional hearings. 044227839-7844 (U.S. 20066); 044227839-7844 (U.S. 20066); 500289915-9918 (U.S. 29454); 01422304-2304 (U.S. 20288); 85649920-9920 (U.S. 21080); 80680229-0229 (U.S. 31967).

347. By 1964, indices of scientific literature were also being compiled separately by the individual Defendants and their agents for litigation purposes. Edwin Jacob, attorney for CTR, Reynolds, and B & W, employed a supervisor and three other employees to abstract and catalogue current medical and scientific literature by subject and author for litigation purposes. Henry Ramm, attorney for Reynolds, kept a similar but larger index, containing over 20,000 documents in eight volumes. In addition, Kenneth Austin and three other CTR staff members compiled indices of scientific literature for litigation purposes. Litigation indices were also kept by Janet Brown, attorney for American, and Alexander Holtzman, attorney for Philip Morris. Liggett hired a person to gather literature and advocated using space at an outside law firm of one of the companies to do the task, so that future literature could be collected “under the wing” of counsel. 1003119099-9135 (U.S. 20152); LG2017032-7034 (U.S. 34100).

348. In a mid-1960s report, Lorillard stated

Because of the continued attacks on the industry ... it is in the best interests of Lorillard to join forces with all other members of the industry concerning the health controversy.

Although each cigarette company handled its own litigation through various trial attorneys,

there is a high degree of cooperation between the companies through ... the “Ad Hoc Committee” which finds medical witnesses and prepares testimony. Lorillard’s representative on this Committee is Mr. David Hardy. The Committee supervises the Central File which is a collection of every document which can be found relating to the smoking and health controversy. This cooperation must be continued. An adverse decision against any member of the industry would be disastrous to all.

80684691-4695 (U.S. 21067).

349. Defendants shared the expense of bibliographic services and analysis performed for the Central File. 85649920-9920 (U.S. 21080); 80680229-0229 (U.S. 31967).

350. In 1971, the services supported under the Central File and the services performed by the Information Center were transferred to CTR. At the first meeting of CTR’s Board of Directors after its incorporation in 1971, the Board gave approval to CTR to take over and operate, as a CTR Special Project, an information and retrieval system and to computerize medical literature, 'articles, and other published documents relating to tobacco and health, with the expenses to be borne by the *117 participating companies. At the first annual meeting of CTR members after incorporation, the members approved the name Information Systems for this special project. Information Systems became a division of CTR which analyzed, summarized, indexed, and retrieved scientific and medical literature at the direction of Defendants’ attorneys. Defendants relied on this division of CTR to review the medical literature relating to smoking and health even though they continued to monitor literature in-house. CTRMIN-BD000001-0303 at 0007-0008 (JD 093208); CTRMIN-MOM000001-0015 (U.S. 21145); Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 143:8-23; Lisanti PD, Arch v. American Tobacco, 6/10/97, 101: 10-102:15.

351. The Report of the Chairman to the second annual meeting of CTR members held on January 28, 1972, revealed that Information Systems had been changed to Information Retrieval Division. The Division was staffed by a group of twenty-six people and financed separately from the general budget; its name was eventually changed to the Literature Retrieval Division. CTRMIN-MOM000016-0034 (U.S. 21170); McAllister TT, 3/21/05, 16161:16-16162:6; Duffin PD, ' Munn, 1/7/87, 161:17-25, 164:23-167:10, 171:7-15; DXA0630917-1033 at 0964-0965 (U.S. 75927); WAX001 0698-0786 at 0771-0772 (U.S. 75555); USX6400001-0527 at 0347-0350 (U.S. 89561); USX6400001-0527 at 0225-0227 (U.S. 89561); USX6400001-0527 at 0136-0138 (U.S. 89561).

352. CTR maintained a separate checking account called CTR Special Account No. 1 for the Literature Retrieval Division. CTR requested, received, and deposited monies from its sponsor companies for the Literature Retrieval Division. Pollice WD, 3:3-5:l.

353. In addition to the CTR Literature Retrieval Division, Defendants American, B & W, Liggett, Lorillard, Philip Morris, and Reynolds also continued to fund Special Account No. 3 through Edwin Jacob’s firm. The account was designated as a “File for Litigation” and was “used to maintain an office where several doctors work on an analysis of medical literature.” 6821509420942 (U.S. 86491).

354. Yearly expenditures for the Literature Retrieval Division continued to be shared by Defendants from 1970 until the Literature Retrieval Division ceased to exist in 1983. 701245474547, CTRLRD004193-4193 (U.S. 31557); 70124546-4546, CTRLRD004192-4192 (U.S. 31556); 70124548-4548, CTRLRD004233-4233 (U.S. 31558); 70124544-4544, ' CTRLRD004190-4190 (U.S. 31554); 70124545-4545, CTRLRD004191-4191 (U.S. 31555); 11275453-5453, CTRLRD0042324232 (U.S. 26402).

355. During her tenure in the Public Affairs Division of the Tobacco Institute, Anne Duffin obtained source material from the Literature Retrieval Division to assist her in writing articles, pamphlets, handouts, and other publications. Examples include “Smoking and Health 19641979, The Continuing Controversy,” “Cigarette Smoking and Cancer: A Scientific Perspective, 1982,” and “Cigarette Smoking and Heart Disease, 1983.” Duffin PD, Munn v. Philip Morris, 1/7/87, 161:17-162:3, 162:20-163:15, 164:23-168:5, 169:4-16, 171:7-15, 173:2-174:3, 174:11-19, 176:18-22; 519838352-8517 (U.S. 87707); 519838518-8621 (U.S. 87708); 519838622-8674 (U.S. 87709).

356. Alexander Spears’s informal review report described the Literature Retrieval Division operation as “nearly complete coverage of the world medical literature on tobacco and health available at each user location with essentially state of art information search and re *118 trieval capability.” Because the Literature Retrieval Division system was useful to Lorillard “in the area of tobacco and health related to litigation and governmental regulatory proceedings,” Spears supported the decision by Loril-lard to fund the Literature Retrieval Division “since it seems an integral part of defending the industry and this company in the defined area.” Lorillard funded the Literature Retrieval Division from 1980 through 1983. 01422327-2328 (U.S. 20050); Stevens WD, 42:19-43:22; DXA0630917-1033 at 1025 (U.S. 75927).

357.In September 1981, the Ad Hoc Committee, including William Shinn and Robert Northrip from Shook, Hardy & Bacon, met and discussed a proposal to sever the Literature Retrieval Division from CTR and reorganize it, along with the Central File (sometimes referred to as the Tobacco Litigation File), into a separate corporation. By providing litigation support services to counsel defending smoking and health actions, the separate corporation would be able to provide more extensive and reliable work product protection for the Literature Retrieval Division’s microfilmed, computerized database and abstracts on smoking and health information when discovery was sought in litigation. See (no bates) (U.S. 36321 at 275). The proposal, which was ultimately adopted and implemented, recommended that: (1) the Literature Retrieval Division be removed to the custody of defense counsel into a new business corporation to be formed called LS, Inc., the stock of which would be owned by the four law firms; (2) payments to LS, Inc. by the law firms would be on a per client market share basis for all functions; (3) the only users of the system would be the four law firms plus Covington & Burling, representing the Tobacco Institute; (4) the only use of the system would be for litigation, which would be defined to include administrative proceedings and legislative hearings, at which proceedings and hearings the law firms were representing their clients; and (5) Fred Giller, then-Director of CTR’s Literature Retrieval Division, would be appointed President and CEO of LS, Inc. Stevens WD, 42:19-43:22; DXA0630917-1033 at 0964-0965 (U.S. 75927); USX6400001-0527 at 0225-0227 (U.S. 89561); USX6400001-0527 at 0136-0138 (U.S. 89561); USX6400001-0527 at 0347-0350 (U.S. 89561); ATX9275490271-0280 (U.S. 36231); LG2000741-0750 (U.S. 36269); 515848825-8830 (U.S. 21583); 2015020054-0054 (U.S. 36628); 2015020046-0046 (U.S. 36627); 2015020038-0038 (U.S. 36626); 2015020032-0032 (U.S. 36625); 2015020021-0021 (U.S. 36624).

358.In March 1983, the Committee of Counsel approved the implementation and incorporation of LS, Inc. LG2000823-0832 (U.S. 21544); 2047663658-3695 (U.S. 20481); 2047663658-3695 (U.S. 20481).

H. Defendants’ Organizations Focused on ETS Issues

359.From the 1970s forward, members of the Enterprise, specifically Philip Morris, Reynolds, Lorillard, B & W, BAT-Co, and the Tobacco Institute on behalf of its member companies, pooled their resources and coordinated their activities with respect to passive smoking, or environmental tobacco smoke (“ETS”), issues through a variety of committees and organizations (discussed in detail at Section V(G)(6), infra). The aims of the many different industry ETS organizations were to coordinate an industry position on passive smoking and to fund projects that would generate data supporting the industry’s position that tobacco smoke was not a proven health risk to nonsmokers.

*119 360. The first industry committee dedicated specifically to addressing ETS concerns was formed as early as 1975. The committee, chaired by Shook, Hardy & Bacon counsel Don Hoel, met under the direction of the Research Liaison Committee to address ETS-specific projects which, at the time, were funded via Special Account 4. 1003293761-3763 (U.S. 86502); 1003293752-3753 (US 20169), (U.S. 75204); 500294698-4698 (U.S. 24145); 504126505-6507 (U.S. 24216); 03638976-8979 (U.S. 46483); 01337388-7388 (U.S. 86504). Regular members of this committee, sometimes referred to as the Public Smoking Committee or Advisory Group, included company scientists from Reynolds, Philip Morris, B & W, and Lorillard. 1000125386-5386 (U.S. 86505); 504339411-9412 (U.S. 86506).

361. Defendants reestablished this committee in 1984 under the name of the Tobacco Institute ETS Advisory Committee, or TI-ETSAG. ETSAG met almost monthly to propose, review, and manage scientific projects that the Committee of Counsel approved for funding. Regular members of ETSAG also included company scientists from Reynolds, Philip Morris, B & W, and Lorillard, in addition to Tobacco Institute representatives, Don Hoel, and Covington & Burling attorney John Rupp. 2021004058-4064 (U.S. 20339). While neither Liggett nor American directly participated in ETSAG, both participated with the funding of approved projects. Id. at 4058; see also Adams PD, United States v. Philip Morris, 6/18/02, 226:15-235:20, 236:2-237:24, 255:24-256:18, 257:8-20, 262:13-263:5, 266:7-268:18, 284:1-24, 285:5-289:6.

362. The Center for Indoor Air Research (“CIAR”) was formally established in 1988 to carry out industry-funded research related to passive smoking; the original charter members were Defendants Philip Morris, Reynolds, and Lorillard. 506300804-0814 at 0804 (U.S. 20756); 506647151-7156 at 7151 (U.S. 20761); 321141105-1144 at 1142 (U.S. 20588); TIMN0014390-4393 (U.S. 62782); 2071412978-3143 at 3082-3096 (U.S. 23061*); 506662315-2316 (U.S. 75277). See also Adams PD, United States v. Philip Morris, 6/19/02, 302:4-15, 304:5-306:11. Although CIAR had a Scientific Advisory Board to review the merit of project proposals, only the CIAR Board of Directors had authority to approve a project for funding. Moreover, a large number of industry favorable CIAR projects were approved directly by the CIAR Board of Directors without any review by its SAB. 517577761-7761 (U.S. 20867).

363. These committees and organizations furthered Defendants’ collective goals by: (1) coordinating and funding Defendants’ efforts to generate evidence to support its position that there remained an “open controversy” as to the health implications of exposure to ETS; (2) leading the attack on the Government’s efforts to act on evidence linking ETS to disease; and, (3) in the case of CIAR, appearing to be an independent research funding organization when it was really a facade for concealing industry participation in certain studies.

I. International Organizations, Committees, and Groups

1. Overview

364. There is overwhelming evidence demonstrating Defendants’ recognition that their economic interests would best be served by pursuing a united front on smoking and health issues and by a global coordination of their activities to protect and enhance their market positions in their respective countries. To further their shared objectives, the Defendants, over an extended period of time, created, eon- *120 trolled, used, or participated in an astonishing array of international entities, including, among many others (all of which will be discussed infra), the Tobacco Manufacturers’ Standing Committee (“TMSC”), which became the Tobacco Research Council (“TRC”) and then the Tobacco Advisory Council (“TAC”); the International Committee on Smoking Issues (“ICOSI”), which became the International Tobacco Information Center, Inc. (“INFO-TAB”) and then the International Tobacco Documentation Center (“TDC”); and the Center for Cooperation in Scientific Research Relative to Tobacco/Centre de Co-opération pour les Recherches Scienti-fiques Relatives au Tabac (“CORESTA”).

365.Defendants coordinated their efforts to further their economic interests through multiple meetings around the globe. These numerous meetings, held between the 1950s and at least 2000, were scheduled by correspondence and memo-randa that were sent via facsimile and by mail. 536202391-2391 (U.S. 86553); 2025495788-5788 (U.S. 22856); 2025495795-5795 (U.S. 26848); 2065260331-0331 (U.S. 86555); 2024771391-1391 (U.S. 86556); 2025477955-7955 (U.S. 26834); 700533941-3941 (U.S. 86558); 503089421-9433 (U.S. 86573); 2078348038-8038 (U.S. 86906); 700533921-3921 (U.S. 88565); 300543355-3356 (U.S. 88506). While the cited exhibits are to meetings in the 1990s, many other exhibits cited throughout these Findings pertain to meetings between the 1950s and 2000.

366.Agendas were usually transmitted in advance of the meetings and Defendants agreed, through correspondence, which of their industry representatives would and should attend. 2023244315-4315 (U.S. 86585); 2023244363-4363 (U.S. 86586); 2028454705-4705 (U.S. 22852); 2028360079-0079 (U.S. 86587); 2023897308-7308 (U.S. 37062); 2024210630-0631 (U.S. 22868); 2051810327-0327 , (U.S. 86588); 2065260325-0325 (U.S. 86589); 700533917-3917 (U.S. 86590); 2065260328-0328 (U.S. 66825); . 300543980-3980 (U.S. 87574); 300543954-3954 (U.S. 87575); 300543357-3358 (U.S. 87576); 300512229-2232 (U.S. 88507); 300543968-3968 (U.S. 67755); 300543811-3813 (U.S. 88508); 2025495656-5656 (U.S. 88509); 2078742951-2951 (U.S. 27724); 2078742952-2952 (U.S. 27725); 2078742954-2954 (U.S. 27727); 2078742955-2955 (U.S. 27728); 2502250184-0185 (U.S. 45981); 2047315966-5966 (U.S. 88512); 300543817-3817 (U.S. 88513); 2065260344-0344 (U.S. 88514); 2072424257-4257 (U.S. 88516); 2072424213-4214A (U.S. 88517); 2046546145-6145 (U.S. 88524); 2072417268-7269 (U.S. 88528); 321569333-9336 (U.S. 88536); see also Blackie WD, 101:13-104:21,127:3-140:3.

367.In many instances, meeting participants summarized the substance of the meetings, recorded the nature of the discussions, and identified the company representatives in attendance. 507973108-3109 (U.S. 86598); 536202400-2404 (U.S. 86599); 507974116^116 (U.S. 51286); 2025493306A-3307 (U.S. 86600); 2023897315-7318 (U.S. 86601); 2051809368-9369 (U.S. 86603); 2028363540-3549 at 3541 (U.S. 86604); 2028372583-2596 at 2594 (U.S. 22926); 517002090-2091 (U.S. 66527); 300512244-2245 (U.S. 67752); 300543979-3979 (U.S. 87578); 300545676-5680 (U.S. 87579); 300545701-5704 (U.S. 87581); 300543440-3454 (U.S. 87582); 300544202-4208 (U.S. 87583); 2047315978-5978 (U.S. 88636); 2078742947-2948 (U.S. 27721); 2078742962-2963 (U.S. 45192); 2078742949-2949 (U.S. 27722); 300543360-3366 (U.S. 88545); 300543940-3942 (U.S. 88546); see also Blackie WD, 104:22-113:20; 128:7-132:18.

*121 368. Defendants used international meetings to identify and coordinate the respective responsibilities of the many international organizations affiliated with the tobacco industry such as the International ETS Management Committee (“IEMC”), Confederation of European Community Cigarette Manufacturers Limited (“CECCM”), TAC, INFOTAB, and others. Scores of documents demonstrate the sophisticated planning and coordination, as well as the division of labor, between the industry’s international organizations. Blackie WD, 101:13-104:21, 104:22-113:20. To cite just one example of allocation of responsibilities, W. David Rowland of Rothman’s International summarized the “end product” of a July 25, 1995 IEMC meeting by stating: “However, it was eventually resolved: IEMC will develop the messages (globally), CECCM will deliver these messages (in Europe).” 900006204-6204 (U.S. 88482).

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