LOON

“When your heart’s on fire, smoke gets in your eyes…”

A fascinating development in the sordid history of anti-smoking litigation being played out as we live and (hack) breathe in the law courts in Montreal.

Home-town legal beagle, Simon V. Potter, currently of the mega-law emporium that is McCarthy Tetreault, late of the equally high rolling corporate-commercial firm of Ogilvy Renault, a former national President of the Canadian Bar Association, firebrand litigator on behalf of the Charter rights of his homicidal industry, and sometime serial-Letter-to-the-Editor author, is back in the headlines.

Not that he was ever as much of a media-friendly mouthpiece as many of his big business lawyer pals who readers may be more familiar with. But unlike Earl Cherniak, a Law Society medalist and hired legal assassin for the likes of, inter alia, Conrad Black, or Harvey T. Strosberg, the gritty class-action kingpin from Windsor, Ontario, our demure S.V.P. has been wont to stay in the shadows for much of his private litigation career, at least, the part that involved him acting as a point-man for the global cigarette cartel that is known aptly as “Big Tobacco”.

Especially as concerns his decades-long professional consort with Imperial Tobacco. Potter’s career, while notable for stints in international trade and even as an unlikely proponent of “civil liberties” for the corporate class, has been served most assiduously on behalf of the hang-together-lest-we-hang separately fraternity that is Big Tobacco.

This tenacious, highly secretive business consortium has been compared unfavourably by respected international legal minds as similar, if not identical in structure and strategy to traditional organized crime entities such as the Mafia. Indeed, Big Tobacco’s survival of a half-century or more of concerted, front-line political, economic and legislative onslaughts by public health-conscious (or fearing) governments on every continent would make the real-life Sopranos crowd envious.

Simon Potter, like so many other otherwise respected members of his stalwart profession, succumbed to the allure of Big Tobacco lucre to dedicate his unique corner of litigation labour to one objective above all others–making sure that everyone and his three-year-old grandchild could be freely exposed to the moral carcinogen that is cigarette advertising in one or other of its sinister forms.

Back in the late 1980s and early 1990s, Potter was plying his clients’ “cigarettes don’t kill smokers, smokers kill themselves” message in the Quebec courts as legal proxy for his Imperial Tobacco overseers along with Earl Cherniak and a slew of other blue-chip litigators who have since gone on to garner prestige and reverential honours within the profession.

U.S.A. v. Philip Morris

But like so many other aspects of Canadian law’s “branch-plant” mentality, those early battles did not attract much media attention until parallel developments in the American side of the tobacco regulation war brought them to the fore. In 1999, a District Court judge in Washington, D.C. named Gladys Kessler, ruled in favour of the plaintiffs in a civil class-action against the U.S. tobacco behemoth, Philip Morris.

The ruling by this Clinton-appointed jurist sent shock waves around the nicotine-stained quarters of every Big Tobacco law firm in the world, including Simon Potter’s comparatively modest digs at Ogilvy Renault in Montreal. Justice Kessler found as a fact that:

In the summer of 1992, Simon Potter, an attorney with the law firm Ogilvy Renault in Montreal, which represented BAT’s Canadian affiliate, Imperial Tobacco Limited, sent a letter to Stuart Chalfen, Solicitor of [British American Tobacco]…David Schechter, General Counsel of [British American Tobacco U.S.]…and John Meltzer, a lawyer at BAT’s outside counsel Lovell, White, Durrant….[indicating]…that unless he received instructions to the contrary, Imperial Tobacco Limited planned to destroy sixty documents, including scientific studies. The letter includes a list of documents to be destroyed, including one document with the notation “not destroyed because never received by Imperial.”….In an August 7, 1992 letter to Chalfen, Schechter, and Meltzer, Simon Potter confirmed that “the documents mentioned in my letter of July 30 have indeed been destroyed.”

Justice Kessler’s finding of facts went on to draw several conclusions that were, to put it mildly (sorry, unintended use of tobacco marketing jargon), critical of the underhanded attempts by Big Tobacco to spike the guns of prospective litigants:

It is patently clear …that…the 1985 Document Retention Policy which… protected all BAT Group affiliates, subsidiaries, sister and parent corporations, was a contrivance designed to eliminate potentially damaging documents while claiming an innocent “housekeeping” intent. . . . The whole purpose was to keep evidence out of the courts…. Moreover, it is also patently clear that the Foyle Memorandum, which purported to re-examine the effectiveness of that 1985 Policy, was intentionally drafted to further its purposes and to ensure that it was adapted to the demands of an ever-more threatening litigation environment….Finally, members of the BAT Group, in furtherance of the Policy’s purposes, destroyed documents, routed them from one country or BAT facility to another, erased a useful litigation database as well as the fact that the documents it contained had ever existed as soon as the pre-existing judicial hold was lifted, and constantly exhorted their many employees to avoid putting anything in writing. All these activities were taken for one overriding purpose — to prevent disclosure of evidence in litigation.

Trying to Remember to Forget

And so it was that Simon Potter, was thrust into the heat of the latest and perhaps most critical battle in the historic class-action suit being brought against his procurers in Big Tobacco.

What led to the revival of Potter’s dormant notoriety was the reluctant return of one Roger Ackman, formerly the Vice-President and General Counsel for Imperial Tobacco in Montreal, and himself, another veteran of the Big Tobacco legal brigades who probably thought he had retired into relative obscurity and opulence when he took his buy-out a few years back and left the cudgels of cancer-stick championing to the likes of the slightly younger Potter and his ilk.

Ackman, now 73, had fought like the bejeezus to avoid this date with destiny–having to testify about his decades-long involvement in the campaign to persuade right-thinking governments and their public health commissars to tread lightly on the Big Tobacco file and to think once, twice, ad infinitum, before fettering the liberties–freedom of exhalation–of cigarette manufacturers to ply the public with pro-smoking ads, not to mention, bogus “research” supporting BT’s claims that the scientific jury is somehow still “hung” on the connection between smoking and lung cancer and related fatal illness.

So last week, into the Quebec superior courtroom in Montreal marched Mr. Ackman, looking none the worse for wear, ready to prevaricate and evade as many pointed questions about his involvement in the anti-Anti-smoking efforts of his BT employers.

To noone’s surprise, the questions centred on Ackman’s knowledge of the industry’s wilful and deliberate destruction of research and related documents which, according to the plaintiffs, were by and large supportive of the destructive and lethal effects of the industry’s cigarette products on the health of human beings in Quebec and around the globe. Something that was a matter of record as far back as 1999 when Justice Kessler ruled on the Philip Morris case.

Ackman’s answers were vague, and more than once he resorted to the time-worn technique of less than forthright witnesses–sometimes termed “testi-lying”–in which he was confronted with wall-screen sized projections of letters he had sent to various BT confederates–including, notably, Simon V. Potter, then senior litigation counsel at Ogilvy Renault‘s Montreal cabinet.

In a performance that the media charitably attributed to a “failed memory”– Ackman was asked about his involvement in an agreement existed between Imperial Tobacco and its major shareholder, British American Tobacco, “to destroy documents on condition we were given access to the documents.”

Why were lawyers involved in the destruction of research documents?

Questioned under oath by the plaintiffs’ counsel, Gordon Kugler, as to how he still knew about the existence of other undestroyed copies of the research, Ackman played it like Tony Hayward did in front of the U.S. congress in May 2010 when grilled about BP’s negligence in the Deepwater Horizon disaster:

“I don’t know, it was a long time ago,” came the underwhelming answer.

Pressed by Kugler as to why “lawyers were involved in the destruction of research documents,” the former general counsel, Ackman appeared at times as if he wished he were in Washington or New York so he could “take the Fifth.¨

But the former law-talking guy for Imperial Tobacco–who was privy to most of the significant pieces of legal correspondence to be circulated in the 1980s and up to his retirement in 1999–seemed stymied as if, in a twisted variation of the old Elvis tune, he was trying not to forget to remember to forget.

Incredibly, though, despite his Waldheim-like selective lapses in memory of his participation in document destruction, Ackman told Justice Brian Riordan that he had actually never read any of the research docs he organized for annihilation, which consisted of research studies and materials that the industry was obsessed with concealing from the public, in general, and prospective plaintiffs.

In truth, Ackman was caught out in his industry’s own carefully laid out and executed pattern of deception. And the proof of that complicity lay in the host of documents that survived Big Tobacco’s redaction–for no reason other than that copies were kept, just in case. Those documents were resurrected following the Philip Morris ruling and along with others now live on in virtually eternity in the numerous tobacco-settlement websites that dot the Information Highway.

Inaccurately, though, much of the mainstream news media’s coverage of the early innings of the trial last week was unduly deferential or circumspect in referring to Simon Potter as “outside counsel” to Imperial Tobacco. Given the degree and extent of his connection to the legal campaign by Big Tobacco as a consortium to rationalize and legitimize cigarette advertising, Simon Potter can scarcely be referred to as someone who was “called in” by Ackman on a one-off basis to destroy research.

Relentless Litigation Campaign Aimed at Legitimizing Cigarette Consumption

In that regard, readers should avail themselves of any one of the numerous free websites (which Big Tobacco was ordered to set up after losing the landmark U.S. District Court judgment in 1999) and do a word search on Mr. Potter to see how truly engrossed in this unseemly business Mr. Potter really was.

Whether attending international conferences and seminars to provide battle dispatches from the Big Tobacco litigation front or writing friendly letters to various tobacco regulatory bureaucrats around the globe, Mr. Potter was a pivotal force in Big Tobacco’s relentless campaign to sanitize the role played by cigarettes in millions and millions of human deaths.