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July 16, 2001


The opinion of the court was delivered by: Garaufis, U.S. District Judge


Now before this court are Defendants' motions to dismiss the complaints in the above-captioned cases, and to deconsolidate those cases; and a motion by the European Community to amend its complaint. For the reasons set forth below, Defendants' motion to de-consolidate the cases is granted; Defendants' motion to dismiss the complaint filed by the European Community is granted; Japan Tobacco, Inc.'s motion to dismiss is denied as moot; and the European Community's motion to amend its complaint is denied. The Defendants' motion to dismiss the complaint filed by the Departments of the Republic of Colombia will be decided in a separate memorandum and order, to be issued at a later date.

I. Introduction

The above-captioned cases, which are distinct and have been consolidated for administrative purposes including the resolution of the motions now before this court, have been brought by the European Community*fn1 (the "EC Case") and by numerous political subdivisions of the Republic of Colombia*fn2 (the "Amazonas Case") against major tobacco product manufacturers. The Defendants in the EC Case include Philip Morris Companies, Inc. and several of its affiliates*fn3 (collectively "Philip Morris"), RJR Nabisco, Inc.,*fn4 several companies related to R.J. Reynolds Tobacco Company,*fn5 and Japan Tobacco, Inc. (collectively "RJR").*fn6 The Defendants in the Amazonas case include Philip Morris Companies, Inc. and several of its affiliates*fn7 (collectively "Philip Morris"), BAT Industries P.L.C. and several of its affiliates,*fn8 and Brown & Williamson Tobacco Corporation*fn9 (collectively "BAT").

Plaintiffs in these cases seek recovery against major tobacco product manufacturers and related entities for damages sustained as a result of three separate conspiracies, all related to the smuggling of contraband cigarettes into the EC and Colombia, as follows:

1. a conspiracy involving, in the EC Case, RJR and various co-conspirators, including RJR's distributors, shippers, currency dealers, smugglers, lobbyists, customers, agents, consultants and others to smuggle RJR's tobacco products into the EC and the territories of various EC Member States and to launder the proceeds of drug trafficking; BAT is alleged to head a similar conspiracy with the same objective in the Amazonas Case.
2. a conspiracy involving, in the EC Case, Philip Morris and various co-conspirators, including Philip Morris's distributors, shippers, currency dealers, smugglers, lobbyists, customers, agents, consultants and others, to smuggle Philip Morris's tobacco products into the EC and the territories of various EC Member States and to launder the proceeds of drug trafficking; Philip Morris is alleged to head a similar conspiracy with the same objective in the Amazonas Case.
3. a conspiracy, in the EC Case, among RJR and Philip Morris employing various means, including fixing the price of smuggled cigarettes, to implement and conceal the first two conspiracies; BAT and Philip Morris are alleged to have launched a similar conspiracy with the same objective in the Amazonas Case.

In each case, Plaintiffs' claim that they are entitled to recover under both the Federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and under various state common law causes of action, including fraud, public nuisance, unjust enrichment, negligence and negligent misrepresentation.

Plaintiffs in both cases allege that the conspiracies described above resulted in the following damages:

1. lost tax revenues derived from the sale of cigarettes that would have been paid if the smuggled cigarettes had entered Plaintiffs' territories legally,
2. money and property that Plaintiffs would have obtained with revenues derived from the lawful sale of cigarettes;
3. money spent by plaintiffs to recover funds lost as a result of Defendants' illegal activities, including money spent to combat cigarette smuggling;
4. illegal profits resulting from Defendants' illegal sale of contraband cigarettes and participation in illegal money laundering;

5. damages resulting from Defendants' creation of a public nuisance.

II. Deconsolidation

This memorandum and order dismissing the EC Complaint disposes of the EC Case only, which was consolidated with the Amazonas Case pursuant to Fed. R. Civ. P. 44(a) on November 27, 2000. (See Nov. 27, 2001 Tr. at 39.) On that date, I explained that the purpose of consolidation was to simplify this complex litigation to the fullest extent practicable; I further emphasized that my decision to consolidate the Amazonas and EC Cases was not final, and that I would revisit the issue as appropriate. (Id.) "[T]he decision to consolidate is discretionary with the court and turns essentially on balancing the time that might be saved against the possible delay or prejudice involved in consolidation." Transeastern Shipping Corp. v. India Supply Mission 53 F.R.D. 204, 206 (S.D.N Y 1971); see also Kelly v. Kelly, 911 F. Supp. 66, 69 (N.D.N.Y. 1996). Consolidation promoted the fair and efficient resolution of various motions and housekeeping issues that have come up concerning these cases; including the motions to dismiss now before this court. Continued consolidation, however, will delay the resolution of these cases unnecessarily, and the cost of such delay is not outweighed by the fact that the EC and Amazonas Cases to some extent share common legal and factual issues. Defendants' motion for deconsolidation is therefore granted. The Amazonas Case shall re-acquire its original docket number, 00-CV-02881; the EC Case shall retain docket number 00-CV-06617.

III. Standard of Review

In reviewing a motion brought pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences from those allegations in the light most favorable to the plaintiff.*fn10 See Allbright v. Oliver, 510 U.S. 266, 268 (1994); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). The complaint may be dismissed only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Hoover v. Ronwin, 466 U.S. 558, 587 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding such a motion, the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotation marks and citations omitted).

IV. The EC Complaint

A. RJR's Involvement in Smuggling

Plaintiff alleges, in general terms, that RJR has been actively involved in smuggling contraband cigarettes into the EC and numerous countries outside of the EC for many years; that RJR's smuggling activity spans the globe, and includes conduct and effects in the Eastern District of New York and throughout New York State; that RJR entered into an agreement with its distributors, customers, agents, consultants and other co-conspirators to participate in a common scheme to smuggle contraband cigarettes into the EC; that RJR conspired with Philip Morris to promote and conceal its and Philip Morris's smuggling activities by means including, inter alia, fixing the price of contraband cigarettes; and that RJR agreed with its co-conspirators to commit tortious acts in order to conduct its smuggling scheme. Plaintiff further alleges that it has suffered economic harm, in the forms described supra as a result of Defendants' participation in cigarette smuggling.

Plaintiff alleges that each of the named RJR Defendants participated in the conception and execution of RJR's conspiracy to smuggle cigarettes into the EC. At all relevant times, RJR and its co-conspirators communicated using both interstate and international wires and mail, on many occasions, in order to carry out nearly every aspect of the alleged scheme. The mail and wires were used in connection with, inter alia, the following conspiratorial activities: arranging for the sale, shipment, billing, payment and accounting of contraband cigarettes; arranging for the return of smuggling proceeds to the United States; preparing and transmitting documents intentionally misstating to authorities of the United States, the EC and the Member States the ultimate destination of cigarettes.

The following is a summary of the Plaintiff's specific factual allegations concerning RJR and Philip Morris's conduct of the conspiracies described above.

1. RJR's Participation In Smuggling Cigarettes into Spain

Plaintiff alleges that RJR established the routes and mechanisms by which its cigarettes were (and in some instances continue to be) smuggled into Europe. RYR employees, motivated to some extent by the promise of large bonuses, helped to establish this network. The efforts of one such employee, named Richard Larocca,*fn11 are described in some detail.

Larocca was involved principally with the smuggling of RJR cigarettes into Spain. RJR recruited Larocca on the basis of his knowledge of the Spanish cigarette market. RJR directed him to increase market share by any means, including smuggling. Larocca provided RJR with information concerning the marketing potential for Winston cigarettes in Spain. He also provided marketing and other information to cigarette smugglers in order to ensure the efficiency of their operations.

Through employees such as Larocca, RJR maintained control over smuggling by, for example, requiring smugglers to keep logs indicating the amount, destination, and price ultimately paid for illegal cigarette shipments. RJR indicated that if any smuggler did not keep adequate records of shipments, RJR would discontinue its relation ship with that smuggler. According to an RJR policy, implemented in the mid- to late 1990s, RJR would refuse to deal with any distributor who failed to verify to RJR the identity of the final customer. By means of these practices, RJR should have been able to ascertain whether or not its cigarettes had reached their intended destination, and by extension, whether or not its cigarettes had ultimately been sold legally.

RJR went to considerable lengths to ensure control over cigarette smuggling. When, for example, RJR detected that large volumes of unauthorized cigarettes had been smuggled into Spain, without RJR's "authorization," RJR purchased such cigarettes and subsequently required the distributor of these cigarettes to repurchase them from RJR. The rogue distributor, thus disciplined, then sold the cigarettes to another purchaser for resale into an "authorized" market.

RJR had a separate method for addressing situations in which "unauthorized" smuggled cigarettes were seized by Spanish authorities. In such instances, RJR purchased the seized cigarettes at auction, and then required the smugglers to reimburse RJR for one-half of the price paid at auction. RJR then sold these cigarettes in Spain through legitimate vendors. If the "unauthorized" smuggler refused to reimburse RJR, RJR cut off the smuggler's supply of cigarettes.

As part of its effort to maintain control over smugglers by protecting "authorized" smugglers against their "unauthorized" counterparts, RJR developed a special marketing presentation for Winston cigarettes. Cigarettes marketed with this presentation became known to Spanish consumers as "patanegra." RJR used the patanegra marketing presentation to ensure that "approved" smugglers could maintain their competitive edge over "unauthorized" smugglers who did not have access to, and thus could not sell, patanegra Winstons.

Throughout the 1990s until at least 1999, patanegra Winstons were smuggled into Spain in an elaborate shipping scheme. First, RJR sold them in large quantities in Miami, Florida. Next, they were shipped from RJR's North Carolina production facility to customers located in Panama. These cigarettes were then re-shipped from Panama to Rotterdam, Holland. From Rotterdam, the cigarettes were delivered by truck to Barcelona, Spain.

Because cigarettes cannot be shipped legally from Rotterdam to locations within the EC, smugglers were required to obtain fraudulent transit documents indicating an ultimate destination outside of the EC. Typically, these fraudulent documents indicated the Canary Islands as the cigarettes' ultimate destination. In time, as additional requirements, such as the posting of large bonds, were imposed upon shippers of cigarettes to guard against smuggling, forged shipping documents indicated Eastern European destinations rather than the Canary Islands as the ultimate destination.

Cigarettes shipped by truck from Rotterdam were then unloaded in Barcelona and sold illegally; other goods, accompanied by the fraudulent transit documents, were then shipped in place of the cigarettes to destinations in Eastern Europe. Upon arrival, smugglers processed the transit documents as if the shipments had contained the cigarettes originally sent from North Carolina via Rotterdam.

Plaintiff claims that RJR executives charged a kickback of five to fifteen dollars per case of cigarettes in exchange for selling patanegra Winston cigarettes into the smuggling network. These executives further encouraged smugglers and their associates to buy more cigarettes by offering "discounts" on the kickbacks in exchange for purchasing larger quantities of cigarettes. In addition, Plaintiff alleges that certain smugglers paid RJR executives to protect their territories from infringement by other smugglers.

Plaintiff claims that the smuggling of patanegra Winstons could not have occurred except with RJR's complicity. The creation of the patanegra presentation for Winston cigarettes sold in Spain is alleged to be a "but-for" cause of smuggling RJR cigarettes into the EC, as is RJR's providing large quantities of cigarettes for sale through its Miami, Florida office.

RJR allegedly also participated in smuggling cigarettes into Spain from the United Kingdom. Through intermediary distributors located in Panama and elsewhere, RJR supplied large volumes of cigarettes manufactured in the United States to a group of six related companies in the United Kingdom (the "UK Group"), including a business known as Entire Warehousing, that smuggled RJR cigarettes into Spain. RJR's involvement with the UK Group extended from at least October, 1995 through April, 1997. Plaintiff alleges that RJR supplied cigarettes to these companies through distributors in Panama in order to evade detection.

The UK Group falsified European customs documents to indicate that cigarette shipments were destined for locations outside of the EC. RJR was aware that large volumes of cigarettes sold to the distributors in connection with this scheme did not reach the markets for which the cigarettes were purportedly destined, but rather ended up sold on the black market in Spain. RJR nevertheless continued to supply these distributors with large numbers of cigarettes.

RJR employed additional smuggling channels originating in Charleston, South Carolina and Savannah, Georgia. In or about November, 1997 RJR prepared a shipment of eighty million of its cigarettes from Charleston and Savannah to Europe. RJR prepared shipping documents falsely indicating that the cigarettes were destined for a particular company in Greece. Plaintiff alleges that RJR either knew or should have known that this company had neither the capability nor the intention to receive such a large shipment. RJR prepared bills of lading in connection with the shipment instructing that no reference be made to, inter alia, the number of the cigarettes contained in the shipment or the brand name of the cigarettes shipped. RJR or its agents filed documents with the U.S. Bureau of Alcohol, Tobacco and Firearms (the "ATF") that intentionally misstated the intended destination of the shipment in order to mislead the ATF.

2. RJR's Awareness of Cigarette Smuggling

Plaintiff imputes awareness of the smuggling to RJR by virtue of RJR's refusal to discontinue selling to individuals known to participate in cigarette smuggling. For example, RJR continues to supply cigarettes to Michael Haenggi, even though Haenggi has stated that he frequently supplied Winston cigarettes to smugglers, who then illegally introduced those cigarettes into the Spanish market. Haenggi has also stated that in one instance he sold 160 million cigarettes, mostly manufactured by RJR, to a company in Panama, which in turn smuggled those cigarettes into Spain. Haenggi has also stated that on a separate occasion he sold 220 million cigarettes, again mostly manufactured by RJR, to a Caribbean company, which in turn smuggled those cigarettes into Spain.

In another such example, Spanish customs authorities in April, 1997 seized a shipment of twenty-two million cigarettes, purportedly destined for locations outside of the EC. When EC officials requested information from RJR, RJR refused to comply with the request, arguing that such disclosures would violate Swiss secrecy laws.

Reports of the activities of an unnamed major customer of RJR (responsible for smuggling large quantities of cigarettes into Spain), further indicates RJR's knowledge of, and tacit support for, its customers' cigarette smuggling. During all or part of the time that this customer was engaged in smuggling, he was also suspected by Spanish authorities of narcotics trafficking. In October, 1999 he eluded Spanish authorities just as they were planning to arrest him on charges of hashish smuggling. Because several of his encounters with Spanish authorities drew publicity, RJR knew or should have known of this customer's alleged involvement in narcotics trafficking.

Finally, RJR's own shareholders, in 1998 and 1999, allegedly proposed resolutions at the RJR annual meeting that put the RJR board of directors on actual notice that RJR was doing business with notorious cigarette smugglers. Plaintiff alleges that through these and other events RJR is on notice that its cigarette customers are involved in illegal smuggling.

3. Steps Taken By RJR to Facilitate Cigarette Smuggling

Moreover, Plaintiff alleges RJR took affirmative steps to facilitate cigarette smuggling. For example, RJR regularly packaged cigarettes specifically to meet the needs of smugglers. RJR also routinely attached tax stamps or counterfeit tax stamps to cigarette shipments at the factory. Without these stamps, the cigarettes could not be shipped to certain destinations. RJR also affixed certain labels and health warnings to ensure the value of the cigarettes at their ultimate destination and designed special cigarette packaging to prevent customs officials from identifying smuggled cigarettes.

Plaintiff further alleges, in addition to the means just described, that RJR provided smugglers with direct assistance in the form of marketing information, including pricing information, specifications concerning which products were in demand, and the volume of cigarettes needed to meet clients' requirements.

According to Plaintiff, RJR also routinely invokes Swiss secrecy laws to thwart detection of its participation in cigarette smuggling. Plaintiff alleges that RJR executives have arranged for payment to smugglers from accounts located in Switzerland. Plaintiff further alleges that RJR relocated records concerning nearly all of its illegal activities worldwide to Geneva, Switzerland in order to evade the efforts of law enforcement to detect cigarette smuggling.

4. RJR Conspired With Other Tobacco Producers to Obstruct EC Efforts to Combat Cigarette Smuggling

The EECTF was formed by Philip Morris and other tobacco companies on January 19 and 20, 1978. The objective of the EECTF is to thwart EC efforts to regulate tobacco advertising and distribution, and to address the health effects of smoking. Likewise, RJR has utilized the CECCM to conceal the true causes of cigarette smuggling. The CECCM asserted in a 1995 publication that high cigarette taxes had created an enormous black market for cigarettes. The CECCM publication did not, however, disclose RJR's or any other tobacco producer's involvement in this black market.

Plaintiff alleges that RJR's use of tobacco industry groups and their false representations obstructed government oversight and misled the public into believing that high taxes cause the black market for contraband cigarettes, when in fact RJR, Philip Morris and other tobacco producers had conspired to generate and maintain cigarette smuggling operations. The EC reasonably relied on the tobacco industry groups' misrepresentations in accounting for the cigarettes in question and assessing customs duties on cigarettes entering the EC.

5. RJR's Involvement In Money Laundering

Plaintiff alleges that RJR. executives and employees, and in particular Richard Larocca, traveled to locations in the Caribbean and Central America for the purpose of meeting and negotiating business agreements with companies and individuals that RJR knew or should have known were money launderers. RJR's employees and agents also developed business relationships with individuals in Colombia that RJR knew or should have known were directly involved in narcotics trafficking.

In or about the early 1990s, U.S. authorities froze bank accounts in Miami, Florida owned by various distributors of RJR cigarettes because funds credited to those accounts represented laundered drug money. RJR was thus on notice that its distributors had been involved in laundering narcotics proceeds.

Plaintiff alleges that RJR overlooked its distributors' ties to money launderers and actively developed such relationships in order to continue selling large volumes of cigarettes to money launderers. Plaintiff further alleges that cigarettes sold to money launderers were ultimately smuggled into the European Union.

RJR's awareness of the link between its distributors and money launderers and drug traffickers was furthered by the August 15, 1994 report of the Coalition Against Crime and Tobacco Contraband, a group funded in part by RJR. The report concluded that drug traffickers purchased cigarettes for sale in Colombia as a means of laundering their illegal profits.

B. Philip Morris's Involvement In Smuggling

Plaintiff alleges that each of the named RJR Defendants participated in the conception and execution of RJR's conspiracy to smuggle cigarettes into the EC. At all relevant times, Philip Morris and its co-conspirators communicated using both interstate and international wires and mail, on many occasions, in order to carry out nearly every aspect of the alleged scheme. The mail and wires were used in connection with; inter alia, the same conspiratorial activities as those listed above in connection with the RJR use of the mail and wires.

The following is a summary of the Plaintiff's specific factual allegations concerning Philip Morris's participation in cigarette smuggling.

1. Philip Morris's Participation in Smuggling Cigarettes Into the EC

Plaintiff describes Philip Morris's creation of a circuitous distribution chain through which it conducts the majority of its sales in Europe and South America. The ultimate purpose of these convoluted arrangements is to conceal the sale of cigarettes to distributors known to be associated with cigarette smugglers in the EC. These evasive distribution methods also serve to increase market penetration and market share by introducing billions of contraband Philip Morris cigarettes into the EC at prices substantially below those paid for legitimate imports.

Philip Morris has long maintained relationships with various agents and distributors in Central America and the Caribbean who have been investigated, and in some cases indicted, by U.S. authorities for money laundering. Rather than sever these relationships, Philip Morris established a covert arrangement for selling cigarettes to such entities. According to Philip Morris policy, certain customers are required to purchase cigarettes through offices in remote locations, such as Paraguay. Philip Morris prohibits written purchase orders at these offices, presumably to avoid leaving a paper trail. The offices then forward the orders to Maraval, a company based in Basel, Switzerland. A second Basel company, Weitnauer Services, Ltd. ("Weitnauer"), then arranges for delivery of the cigarettes. Plaintiff alleges that the sole purpose of this complex procedure for ordering, payment and delivery of cigarettes was to conceal from authorities Philip Morris's involvement in the sale of cigarettes into smuggling channels reaching, among other places, the EC. Plaintiff further alleges that Philip Morris controlled the sale of all cigarettes sold by the various agents and distributors involved in this chain.

Like RJR, from at least October, 1995 through April, 1997, Philip Morris supplied large volumes of cigarettes to a U.K. smuggling group that included Entire Warehousing. This smuggling group created false documents so as to defraud customs officials and create the appearance that Philip Morris cigarettes would be exported to destinations outside of the EC, such as Morocco, Mozambique and Angola, when in fact the cigarettes were smuggled to EC countries, such as Portugal. Philip Morris sold its cigarettes to intermediary distributors knowing that they would be purchased by this smuggling group and also that they would not reach the markets for which the distributors had indicated to Philip Morris they were intended. The cigarettes smuggled by this group were manufactured in the United States, and orders for these cigarettes were placed with Philip Morris in the United States.

Throughout the 1990s, Philip Morris shipped large volumes of cigarettes to smugglers located in certain free trade zones, such as the Colon Free Trade Zone (the "CFTZ") in Panama. A substantial percentage of the cigarettes shipped to such destinations was ultimately smuggled into the EC. Philip Morris' purpose in shipping cigarettes through free trade zones such as the CFTZ was, as in the case of the distribution route described supra, to take advantage of secrecy laws (such as those of Panama) and thus to prevent scrutiny of cigarette shipments by law-enforcement.

On several occasions in 1999 and 2000, Philip Morris notified prosecutors and customs officials within the government of Panama that it had no authorized dealer in the CFTZ. Philip Morris nevertheless continued the clandestine sale of its products to smugglers in the CFTZ.

For example, Philip Morris World Trade S.A. sold 440 cases of its cigarettes to Weitnauer on January 17, 2000. Philip Morris claims to have no knowledge of the ultimate destination of these cigarettes. The delivery note, however, reflecting the delivery of the cigarettes sold to Weitnauer, was faxed to Marco Shrem, in the CFTZ. Shrem owns Marksman Latin America S.A. ("Marksman"), a company in the CFTZ. In spite of the fact that confirmation of the sale was sent to Shrem, Weitnauer apparently did not sell the cigarettes to Shrem or to any company of which Shrem is an officer. Rather, Weitnauer purportedly sold the cigarettes to a company called Interduty Free Tulcan ("Tulcan") for delivery to a warehouse in Antwerp, Belgium. Tulcan ostensibly shipped the cigarettes to Interduty Free Panama Inc. ("IFP"), located in Panama. Notice of that shipment included notification to a company known as J.F. Hillebrand, U.S.A., Inc., located in Hollywood, Florida. The bills of lading and other pertinent documents relative to this shipment were delivered to Hillebrand on or about February 17, 2000.

These cigarettes were purportedly destined for Ecuador, and the declarations of commercial movement indicated that the cigarettes should have been shipped through the Panama Canal and delivered directly to Ecuador, without being offloaded. When the cigarettes arrived in Panama, however, they were offloaded and placed in a warehouse. Panamanian customs authorities seized the cigarettes because they lacked proper documentation. At the time of seizure, Panamanian authorities discovered Shrem's employees removing the numbers and markings from the cases of Marlboro cigarettes. Even though all documents indicate that the cigarettes are the property of IFP, Shrem has appeared before the Panamanian customs authorities with documentary proof from Philip Morris that the cigarettes belong to him and to his company, Marksman. The cigarettes were released to Marksman, and sold to individuals who allegedly took them to Colombia. Plaintiff alleges that because Philip Morris sent the pertinent delivery documents to Shrem, Philip Morris knows the identity of the true ultimate purchaser of these cigarettes. Plaintiff further alleges that Marksman's shipping records show that Marksman's buyers smuggle the bulk of the cigarettes into the EC.

2. Philip Morris's Awareness of Cigarette Smuggling

Plaintiff alleges that Philip Morris has sold, and continues to sell, Marlboro brand cigarettes to known smugglers. For example, Philip Morris has sold, and continues to sell, cigarettes to a purchaser named Corado Baianchi, despite Baianchi's public statements that he has acted as a conduit between Philip Morris and smugglers for the distribution and sale of contraband cigarettes into Western Europe, and that he sold Philip Morris cigarettes to smugglers so that those cigarettes could be sold illegally in Italy. Andrew ...

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