Full opinion text
MEMORANDUM & ORDER WEINSTEIN, Senior District Judge. TABLE OF CONTENTS I INTRODUCTION. 352 TT FACTS. . . 254 A. Blues .. B. Tobacco 1. Health Effects. 2. Industry Conspiracy. a. Formation and Execution b. Knowledge. c. Coverup. d. Other Deceptive Conduct III SUMMARY JUDGMENT STANDARD CO CO TV RTCO CO i Racketeering. CO <! 1. Scheme Components. CO 2. Application to B.A.T. CO Section 1962(c). CO w 1. Direct Claims . CO a. Causation-In-Fact: Reliance. CO b. Proximate Causation. CO 2. Subrogated Claims. CO a. Constitutional Challenges. CO i. Due Process. CO ii. Jury Right.•. CO b. State Law Challenges. CO i. Federal Common Law v. New York Law CO ii. Treble Recovery. CO iii. Aggregate Adjudication. CO iv. N.Y. CPLR 4545(c). CO 3. Statute of Limitations. CO 4. Future Damages. CO Section 1962(a). CO O Section 1962(d). CO P V STATE FRAUD-BASED ACTIONS. 385 VI PREEMPTION. 386 VII CONCLUSION 388 The defendants have moved for summary judgment on various grounds. See Fed.R.Civ.P. 56. For the reasons indicated below, summary judgment is granted as to some causes of action and denied as to others. The action is ordered to proceed to trial. I INTRODUCTION Plaintiffs, various Blue Cross and Blue Shield Plans (“Blues”) from around the Nation, seek recovery against the major tobacco product manufacturers and related entities (“Tobacco”) for alleged misrepresentations and omissions of material facts and for similar deceptive conduct regarding the deleterious effects of tobacco use on their clients’ (“Plan members”) health that has resulted in increased costs for the Blues. Three of the Blues’ theories of recovery are based on alleged racketeering activity pursuant to the Federal Racketeer Influenced Corrupt Organization Act (“RICO”). See 18 U.S.C. §§ 1962, 1964. Summarily stated, these theories are: 1) Tobacco engaged in a fraudulent scheme of misinformation directed at Plan members (and the population at large) to encourage them to smoke (and not to cease smoking) and to use smokeless tobacco products, thus causing them to suffer tobacco-related injuries and illnesses that they otherwise would not have suffered, and in turn forcing the Blues- to pay substantially higher amounts for treatment of these maladies than otherwise would have been required, see id. § 1962(c) (“RICO Payment Action”) (This action is also pled in the alternative based upon equitable sub-rogation (“Subrogated RICO Payment Action”)); 2) Tobacco engaged in a fraudulent scheme of misinformation directed at the Blues to cover-up, minimize, and create the appearance of an “open controversy” as to the deleterious health effects of tobacco resulting in the Blues detrimentally relying on this information in failing to institute smoking cessation programs, to adopt differential health-insurance premiums for smokers and non-smokers, and to discourage tobacco use among Plan members, see id. § 1962(c) (“RICO Smoking Reduction Action”); 3)Tobacco reinvested racketeering income and proceeds from a RICO enterprise directed at the population generally and Plan members and the Blues particularly, see id. § 1962(a) (“RICO Investment Action”). The RICO enterprise sought to control and influence the information distributed to the public concerning the health effects of smoking, to suppress and conceal scientific and medical information regarding the adverse health effects of smoking and the alternatives of safer or less-addictive cigarettes, to manipulate nicotine to create and sustain user addiction, and to avoid and shift tobacco-related health care costs to others including the Blues. See Plfs’ Fourth Amended Compl. ¶ 295 (hereinafter “Compl.”). The funds generated were reinvested into the RICO enterprise to perpetuate the fraudulent and deceptive conduct. See Compl. ¶ 296. A fourth theory is based on fraud under state common law. Plaintiffs contend Tobacco engaged in a fraudulent scheme with the specific intent to mislead the Blues into “not taking actions to discourage and reduce tobacco use by the [Blues] Plan[ ] members,” see Compl. ¶¶ 332, 334; see also id. ¶ 353, resulting in an increased incidence of tobacco-related illnesses among Plan members and, in turn, substantially higher health care expenditures by the Blues (“Direct Fraud Action”). A fifth theory is based on combined principles of equitable subrogation and common-law fraud (“Subrogated Fraud Action”). See Compl. ¶¶ 335, 347; see also id. ¶ 354. Plaintiffs contend Tobacco engaged in a fraudulent scheme with the specific intent of misleading the general public, including Plan members, thereby inducing continued purchasing, use and addiction to tobacco products, “to the detriment of the [Blues] which paid for the health care and treatment of the [resulting] tobacco-related illnesses[.]” Compl. ¶¶ 335, 347. A sixth theory is based on claims under the New York Consumer Protection Act. See N.Y.Gen.Bus.Law §§ 349 (deceptive acts and practices), 350 (false advertising). This action is advanced both as a direct action and as a subrogated action to recover tobacco-related health care outlays made by the Blues on behalf of Plan members. Finally, plaintiffs have pled a multitude of state law claims specific to the various state Blues. Plaintiffs’ state law claims were earlier stayed. See Blue Cross & Blue Shield of N.J. v. Philip Morris, 36 F.Supp.2d 560, 588 (E.D.N.Y.1999). As noted by this court in addressing summary judgment motions in a related tobacco case, “[t]he unique character of the massive, nationwide, longstanding, and ongoing fraudulent schemes alleged, and the enormous damages claimed to have resulted, require flexibility in approaching the novel factual and legal issues presented by this extraordinary case.” Falise v. American Tobacco, 91 F.Supp.2d 525, 527 (E.D.N.Y.2000) (preliminary summary judgment order). Though the court remains skeptical of plaintiffs’ ability to fully support their allegations, a sufficient showing has been made — -subject to a Daubert hearing on the validity of the proposed statistical models relied upon by plaintiffs — to warrant a jury trial. The parties have engaged in extensive discovery, supplied the court with volumes of documentation and argued opposing contentions at length. Based on these proceedings (and upon all other proceedings in the related tobacco cases pending in this court), and in shaping the case for jury trial and in resolving defendants’ various summary judgment motions, it is ordered: I Claims of plaintiff Empire Blue Cross & Blue Shield of New York (“Empire”) shall be tried together prior to trial of the remaining Blues plaintiffs. The summary judgment motions relating to the other Blues plaintiffs are denied with leave to renew at the completion of trial of Empire’s claims. II Summary judgment is denied with respect to Empire’s RICO Payment Action. See supra ¶ 1. With respect to the limitations period, Empire may seek recovery of payments for tobacco-related health claims filed with it on or after April 29, 1994 (four years before the filing of the original complaint) to the date of trial. The filing of a claim with Empire is to be deemed the date on which that particular injury to it accrued for purposes of the statue of limitations. Empire may not seek damages for projected claims to be filed in the future in the present action. III Summary judgment is denied with respect to Empire’s Subrogated RICO Payment Action. See supra ¶1. IV Summary judgment is granted with respect to Empire’s RICO Smoking Reduction Action. See supra ¶2. V Summary judgment is granted with respect to Empire’s RICO Investment Action. See supra ¶3. VI Defendants’ motion for partial summary judgment arguing that certain alleged wire fraud and mail fraud RICO predicate violations are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., is denied, VII Defendant B.A.T.’s motion for summary judgment as to claims against it is denied. VIII The stay of Empire’s state law claims is lifted with respect to the Subrogated Fraud Action and the New York Consumer Protection Act claims. These claims, all of which sound in fraud, involve substantially the same factual allegations as the RICO actions, thus requiring minimal additional discovery. Resolution of these claims with Empire’s RICO Payment Action would not prove unduly confusing or burdensome for the parties, court, or the jury, nor would it delay the commencement of trial. The parties should endeavor to make any substantive motions with respect to the Sub-rogated Fraud Action and the New York Consumer Protection Act claims in an expeditious manner. The earlier stay shall remain in effect as to the other causes of action. VIII Summary judgment is granted with respect to the Direct Fraud Action. The explanation for these orders is provided below. See Parts IV, V, & VI, infra. II FACTS A. Blues The plaintiffs (“Blues”) are twenty-one medical provider-insurer Blue Cross and Blue Shield plans from across the United States. They and their predecessors have been providing health care insurance coverage and related services to their members since the beginning of the Twentieth Century. See id. ¶ 12. Tens of millions of Americans have depended upon them for a broad range' of health care benefits and related services as the largest non-governmental provider of health insurance coverage and related services in the country. See Fourth Amended Compl. ¶¶ 1, 12 (hereinafter “Compl.”). Presently almost seventy million people look to them for medical protection. Originally established as “insurers of last resort” in their respective states, the Blues have historically provided health care protection to any individual regardless of that person’s medical condition. See id. ¶ 14. Even today, most of the Blues continue to act as insurer of last resort, covering sicker and lower income Americans. See Mem. of Law in Opp. to Summ. Judg. for Lack of Direct Injury and Failure to Offer Individ. Proof as to Subrog. Claims, at 13-15 (hereinafter “Opp. Mem. on Direct Injury”). The Blues are independent licensees of the Blue Cross and Blue Shield Association, through which the various Blue Cross and Blue Shield plans license the right to use the Blue Cross® and Blue Shield® names and symbols. They operate within defined geographic regions, in most cases based on state lines. See id. ¶ 13. On the demand side of the health insurance equation, the Blues contract with individuals, governments (at the federal, state and local level), employee and labor groups, businesses, associations and other institutions to provide health plan benefits and related services. Regardless of the costs of care, the Blues are responsible for payment. See id. ¶ 18. On the supply side, the Blues directly contract with thousands of medical care providers, including doctors, clinics, hospitals, and others for services to be rendered to Plan members. See id. ¶ 17; see also Opp. Mem. on Direct Injury, at 11; see generally George J. Annas, Sylvia A. Law, Rand E. Rosenblatt, & Kenneth R. Wing, American Health Law ch. 2, at 121-64 (1990). As plaintiffs, the Blues seek recovery of their expenditures for Plan members in treating tobacco-related diseases and nicotine addiction. See id. at 19. The Blues contend that a substantial portion of these costs are due to a massive and sustained fraudulent conspiracy designed and carried out by Tobacco to mislead the American public about the dangers of tobacco use and nicotine addiction, to prevent the introduction of less harmful or addictive tobacco products, and to shift the health care costs of treating tobacco-related illness onto the Blues and others. See Compl. ¶¶ 76, 77, 99,102. B. Tobacco 1. Health Effects The toll from smoking-related diseases is enormous. Other mass health disasters such as those attributable to asbestos are relatively insignificant compared to the calamity brought about by tobacco use. Cf. In re Joint Eastern and Southern District Asbestos Litig., 129 B.R. 710, 736 (E.D.N.Y.1991). Smoking-related illnesses account for one of every five deaths each year in the United States, making cigarette smoking the leading cause of premature death in the United States. See Compl. ¶ 62. Based on statistics from the Federal Centers for Disease Control and Prevention, annually smoking-related illnesses kill more than 400,000 Americans, exceeding the combined deaths caused by automobile accidents, AIDS, alcohol use, illegal drug use, homicide, suicide and fires. See id. ¶ 62. Tobacco use is responsible for: • cancers of the lung, mouth, larynx, esophagus, stomach, pancreas, uterus, cervix, kidney and colon (see id.); • pulmonary diseases such as emphysema and bronchitis (see id.); • cardiovascular diseases such as strokes, heart attacks, peripheral vascular disease, and aortic aneurysms (see id.); and • reproduction problems such as reduced fertility, increased rates of miscarriages and stillbirths, retarded uterine fetal growth and lowered infant birth weight (see id. ¶ 64). All told, the 43 carcinogenic chemicals inhaled by persons smoking defendants’ products have been linked to 85% of all lung cancer, 30% of all deaths from other cancers, and 80% of deaths from pulmonary diseases. See id. ¶ 63. In addition to disease and illness, smoking cigarettes can lead to nicotine addiction. Nicotine is the chemical substance in cigarettes that creates the “smoking high” smokers experience. Once in the blood stream, nicotine is carried almost immediately to the brain where it sets off a series of chemical reactions that alter mood and produce feelings of both sedation and stimulation. It also activates the transmission of a natural chemical, dopamine, that generates pleasurable body sensations, which ultimately causes a craving for nicotine delivered by cigarette smoking. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 1319-20, 146 L.Ed.2d 121 (2000) (Breyer, J., dissenting) (describing physiological reactions resulting from nicotine use). So powerful is the addictive force of nicotine that, in “the absence of nicotine, the addicted smoker suffers symptoms of physical withdrawal, including headaches, constipation, insomnia, depression, inability to concentrate and anxiety.” Compl. ¶ 66. According to the Surgeon General of the United States, nicotine addicts in much the same way as heroin and cocaine. See id. ¶ 67. Many smokers are unable to quit until they suffer a heart attack or contract lung cancer, and even then, of those who survive the ordeal approximately one-half will return to smoking. See id. The deleterious health effects of smokeless tobacco products, such as snuff and chewing tobacco, are nearly as staggering as those caused by smoking cigarettes. See id. ¶ 69-71. Smokeless tobacco contains potent carcinogens that can increase the risk of cheek and gum cancers nearly fifty fold. See id. ¶ 69. Use of smokeless tobacco can also lead to oral leukoplakia, cancer of the gum, mouth, pharynx and larynx, the development of precancerous lesions of the soft tissue around the mouth, and an increased risk of cancer of the esophagus. See id. ¶ 70-71. The use of snuff in particular can cause gum recession, the discoloration of teeth and fillings, dental cavities and abrasions of the teeth. 2. Industry Conspiracy a. Formation and Execution Plaintiffs allege that, beginning with a clandestine meeting in December 1953 at the Plaza Hotel in New York City among the presidents of Philip Morris, R. J. Reynolds, American Tobacco, Brown & Williamson, Lorillard and U.S. Tobacco, Tobacco embarked on a systematic, half-century long scheme to: “(a) stop competing with each other in making or developing less harmful cigarettes; (b) continue knowingly and willfully to engage in misrepresentations and deceptive acts by, among other things, denying knowledge that cigarettes caused disease and death and agreeing not to disseminate harmful information showing the destructive effects of nicotine and tobacco consumption; (c) shut down research efforts and suppress medical information that appeared to be adverse to the Tobacco Companies’ position that tobacco was not harmful; (d) not compete with respect to making any claims relating to the relative health-superiority of specific tobacco products; and (e) to confuse the public about, and otherwise distort, whatever accurate information about the harmful effects of their products became known despite their [efforts to conceal such information.]” Compl. ¶ 104; see also Falise v. American Tobacco Co., 94 F.Supp.2d 316, 329-33 (E.D.N.Y.2000). This meeting was a response to a series of epidemiological and toxicological reports linking tobacco consumption with lung cancer. See Compl. ¶¶ 99-101; see also Kenneth R. Foster, David E. Bernstein, & Peter W. Huber, Phantom Risk: Scientific Inference and the Law 4 (1994) (“Epidemiological studies by Doll and Hill (1952) conducted in the early 1950s strongly indicated that a pack-a-day smoker has a tenfold higher chance of developing lung cancer than a nonuser.”); see generally David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, 2 Modem Scientific Evidence: The Law and Science of Expert Testimony §§ 27-1.0 to 28-2.4 (1997) (epidemiological studies and toxicological studies); Linda A. Bailey, Leon Gordis and Michael Green, Reference Guide on Epidemiology, in Federal Judicial Ctr., Reference Manual on Scientific Evidence 121 (1994) (hereinafter Reference Manual); Bernard D. Goldstein and Mary Sue Henifin, Reference Guide on Toxicology, in Reference Manual, supra, at 181. These studies threatened dramatic reduction in tobacco product sales and industry stock prices. See Compl. ¶ 101. To carry out the conspiracy, Philip Morris, R.J. Reynolds, Brown & Williamson, American Tobacco, Lorillard and U.S. Tobacco — with the ■ assistance of the New York-based public relations firm of Hill and Knowlton — formed the Tobacco Industry Research Committee (“TIRC”) in January 1954. See id. ¶ 109. Renamed the Council for Tobacco Research (“CTR”) in 1964 when Liggett became a member, it was to create the false appearance that Tobacco was carrying out “objective, independent, and unbiased” research into the health effects of tobacco consumption, all the while actually “conducting] a campaign of deceit, misrepresentation and misinformation ... about the [real] health risks of smoking.” See id. ¶ 147. To support their claims that the TIRC, and later the CTR, were integral to Tobacco’s alleged conspiracy to deceive the public, plaintiffs rely heavily on the “Frank Statement to Cigarette Smokers,” a joint statement by five of the tobacco manufacturers. It was published “in newspapers in virtually every city with a population of 50,000 or more, reaching more than 43 million Americans out of a population at the time of approximately 150 million.” Id. at ¶ 110. It explicitly announced that: • “[T]here is no proof that cigarette smoking is one of the causes of lung cancer.” (Id. ¶ 110(c)); • “[Tobacco] always h[as] and always will cooperate closely with those whose task it is to safeguard the public health.” (Id. ¶ 110(f)); • “[Tobacco is] pledging aid and assistance to the research effort into all phases of tobacco [product] use and health.” (Id. ¶ 110(g)); • “For this purpose [Tobacco is] establishing a joint industry group .... This group -will be known as TOBACCO INDUSTRY RESEARCH COMMITTEE.” (Id. ¶ 110(g) (capital letters in original)); and • “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.” (Id. ¶ 110(i)). It is plaintiffs’ contention that Tobacco intended the public as well as health care payers, including the Blues, to rely upon the reports, research, and communications of the TIRC — and the companies generally — in assessing the dangers of tobacco use. See id. ¶ 111. As support for their allegation that the TIRC was never intended as the objective research council advertised, plaintiffs rely on disclosures in internal Tobacco documents such as the following: • “[TIRC] was set up as an industry shield in 1954. That was the year statistical accusations relating smoking to diseases were leveled at the Industry; litigation began; and the Wyn-der/Graham reports were issued. [TIRC] has helped out legal counsel by giving advice and technical information, which was needed at trials .... [T]he public relations value of [TIRC] must be considered and continued.... It is very important the industry continue to spend their [sic] dollars on research to show that we don’t agree that the case against smoking is closed.” (ComplJ 154(a)); • “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.... In general, these programs have provided some buffer to public and political attack of the industry, as well as background for litigious [sic] strategy.” (Id. ¶ 154(c)); • “To date, the TIRC program has carried its fair share of the public relations load in providing materials to stamp out brush fires as they arose. While effective in the past, this whole approach requires both revision and expansion. The public relations program ... was like the early symptoms of diabetes — certain dietary controls kept public opinion reasonably healthy. When some new symptom appeared, a shot of insulin in the way of a news release ... kept the patient going.” (Id. ¶ 154(e)); and • “For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts— litigation, politics, and public opinion. While the strategy was brilliantly conceived and executed over the years helping us win important battles, it is only fair to say that it is not — nor was it intended to be — a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of creating doubt about the health charge without actually denying it.” (Id. ¶ 154(g)). To complement the fraudulent efforts of the TIRC and CTR, Tobacco in 1958 formed The Tobacco Institute (“TI”) — a New York non-profit corporation that operated in Washington, D.C. — as a lobbying arm for the industry. See id. ¶ 57. In 1969, U.S. Tobacco, the largest manufacturer of smokeless tobacco products in the United States, formed a third organization, The Smokeless Tobacco Council, Inc. (“STC”), as a propaganda and lobbying agent. See id. ¶ 59. Though ostensibly focused on protecting the interests of smokeless tobacco manufacturers, plaintiffs allege that STC operated in conjunction with the industry generally, receiving financial support from Brown & Williamson, Lorillard and R.J. Reynolds. See id. b. Knowledge Although the TIRC, CTR, and TI continued to release public statements and reports indicating smoking neither caused adverse health effects nor was addictive— as well as to finance research to support these claims — the Blues contend that all the while Tobacco in fact knew the contrary to be true: that smoking is both lethal and addictive. See Compl. ¶¶ 122-146 Internal documents from defendants indicate that through independent company research and the sharing of this research through the TIRC and CTR, each of the major tobacco product manufacturers was aware early on that Tobacco contributed to lung cancer. For example, a 1956 confidential memorandum from a Philip Morris Vice President of Research and Development to top executives at the company regarding the advantages of “ventilated cigarettes” stated: “Decreased carbon monoxide and nicotine are related to decreased harm to the circulatory system as a result of smoking .... [.D ]ecreased irritation is desirable ... as a partial elimination of a potential cancer hazard.” Id. ¶ 130 (emphasis added). Similarly, a BAT-CO document produced in 1958 following a series of meetings between BATCO representatives and twenty American scientists and researchers — including at least nine representatives of the tobacco companies and the Scientific Advisory Board of TIRC — states that all of the tobacco company researchers with whom they met (and all but one of the outside people) “believed that smoking causes lung cancer” and notes that there was “general acceptance [among the group] that the most likely means of causation is that tobacco smoke contains carcinogenic substances present in sufficient quantity to promote lung cancer when acting for a long time in a sensitive individual.” Id. ¶¶ 123-124. That same year, a Philip Morris Vice President of Research, who later joined its Board of Directors, stated in a confidential internal memorandum that “the evidence ... is building up that heavy cigarette smoking contributes to lung cancer either alone or in association with physical and physiological factors.” Id. ¶ 132. A 1963 confidential internal memorandum from Liggett’s research consulting firm admitted: “Basically we accept the inference of a causal relationship between the chemical properties of ingested tobacco smoke and the development of carcinoma .... ” Id. ¶ 135. In addition to knowing early on that smoking is linked to lung cancer, the Blues allege that Tobacco was aware of other major deleterious health effects caused by smoking, including bronchitis, emphysema, and cardiovascular disease. To support this contention, plaintiffs identify the following excerpts from internal company documents: • A 1963 confidential memorandum to Philip Morris’s President and CEO describes components of cigarette smoke as “known carcinogens” and states: “Irritation problems are now receiving greater attention because of the general medical belief that irritation leads to chronic bronchitis and emphysema. Emphysema is often fatal either directly or through other respiratory complications. A number of experts have predicted that the cigarette industry ultimately may be in greater trouble in this area than in the lung cancer field.” (Id. ¶ 137); and • An internal memo produced for a B.A.T. Group Conference (e.g., BAT-Co, Brown & Williamson, and other subsidiaries of B.A.T. Industries) in November 1970 that states “nicotine may be implicated in the aetiology of cardiovascular disease.” (Id. ¶ 138). The Blues also allege that Tobacco has understood at least for the past four decades that smokers continue to smoke not by choice, but because of nicotine addiction. See id. ¶ 125. As support, the Blues' identify confidential BATCo documents related to BATCo’s “Project Hippo” that indicate that at least as early as 1961 Tobacco was aware of the physiological and pharmacological effects of nicotine. Copies of Project Hippo reports were circulated to TIRC, BATCo, Brown & Williamson, and R.J. Reynolds. A 1963 memorandum written by Addison Yeaman, General Counsel at Brown & Williamson, concludes: Tobacco is “in the business of selling nicotine, an addictive drug.” Id. ¶ 126. Similarly a 1978 internal Brown & Williamson memorandum acknowledges that “very few consumers are aware of the effects of nicotine, i.e., its addictive nature and that nicotine is a poison.” Id. ¶ 145 (emphases added). Overwhelming evidence that Tobacco was aware of nicotine’s addictive properties is a 1972 report by Philip Morris presented at a CTR conference; it states: • “[Njicotine is the active constituent of cigarette smoke”; . • “Without nicotine ... there would be no smoking.”; • “Why then is there not a market for nicotine per se, to be eaten, sucked, drunk, injected, inserted or inhaled as a pure aerosol? The answer, and I feel quite strongly about this, is that the cigarette is in fact among the most awe-inspiring examples of the ingenuity of man.”; • “The cigarette should be conceived not as a product but as a package. The product is nicotine ....”; • “Think of the cigarette pack as a storage container for a day’s supply of nicotine ....”; and • “Think of the cigarette as a dispenser for a dose unit of nicotine.” (Id. ¶¶ 128-29). c. Coverup The Blues contend that despite knowing that tobacco use is injurious and addictive, Tobacco — in part through the efforts of the TIRC, CTR, TI and STI — intentionally engaged in “a campaign of deceit, misrepresentation and misinformation directed at misleading the public about the health risks” and addictiveness of smoking. Id. ¶ 147. Efforts allegedly undertaken by Tobacco to hide this information include the termination and destruction of Philip Morris research regarding nicotine’s addictive properties. For example, in the early 1980s researchers working at a Philip Morris laboratory in Richmond confirmed that nicotine demonstrated addictive qualities and that the laboratory research animals .self-administered the substance by pressing levers to obtain nicotine. Less than a year after a briefing to top Philip Morris executives on these findings by the director of the research, Dr. Victor J. De-Noble, Philip Morris representatives instructed the researchers to stop work, to kill all the laboratory animals, to turn in their security badges, and to withdraw a paper on the addictive qualities of nicotine that had been accepted for publication by a scientific journal. Philip Morris then closed the laboratory, fired the researchers, forced them to agree to remain quiet about their work, and threatened them with legal action if they published their findings. See id. ¶ 161. Plaintiffs also point to confidential research conducted by Brown & Williamson’s British affiliate on behalf of Brown & Williamson. In the course of this research, Brown & Williamson allegedly suppressed confidential findings of a “causal relation” between “ZEPHYR [Brown & Williamson’s code name for cancer] and tobacco smoking.” Id. ¶ 156. As evidence of the central role the TIRC and CTR in Tobacco’s alleged deceptive coverup, the Blues point to TIRC’s establishment of a “Special Projects” division where research revealing the dangers and addictiveness of smoking “was secreted from the public and concealed from discovery in litigationf.]” Id. ¶ 163. Plaintiffs also identify a 1970 advertisement placed in newspapers around the nation by the TIRC at the direction of Tobacco claiming that there was no known link between cigarettes and disease despite, according to the advertisement, decades of “totally independent research.” Id. ¶ 116. They also point to a public statement in 1982 by Edward A. Horrigan, Jr., then Chairman of the Executive Committee of the TI, claiming: After three decades of investigation and millions of dollars invested by the government, the Tobacco Industry and private organizations, the smoking and health controversy remains unresolved. The net result of all of this effort has been that no causal link between smoking and disease has been established. That is not merely the opinion of Tobacco Industry executives. That is scientific fact readily available to anyone willing to make an objective, unemotional study of the existing evidence. Id. ¶ 118. d. Other Deceptive Conduct In addition to covering up the health risks and addictiveness of smoking, Tobacco is alleged to have intentionally enhanced nicotine concentration in cigarettes to increase smoker-addiction, misled the public to believe smoke from “lighter” cigarettes contained reduced levels of tar and nicotine relative to that released by conventional cigarettes, suppressed research into less harmful cigarettes, and specifically sought to shift liability for smoking-related illnesses from Tobacco to the health insurance industry, including the Blues. Supporting the contention that Tobacco manipulated nicotine levels, the Blues identify various patents filed by defendants that provide the technological capability to manipulate nicotine levels in cigarettes “to an exacting degree.” Id. ¶ 222. Examples include the following: • A Philip Morris patent application for an invention that “permits the release ... in controlled amounts and when desired, of nicotine in tobacco smoke.” (Id. ¶ 222(a)); • Another Philip Morris patent application explaining that the proposed invention is “particularly useful for the maintenance of the proper amount of nicotine in tobacco smoke” and noting that “previous efforts have been made to add nicotine to Tobacco Products when the nicotine level in the tobacco was undesirably low.” (Id. ¶ 222(b)); and • A 1991 R.J. Reynolds patent application stating that “processed tobaccos can be manufactured under conditions suitable to provide products having various nicotine levels.” (Id. ¶ 222(c)). To demonstrate that Tobacco manipulated nicotine levels to maximize smoker addiction rates, the Blues identify the use of ammonia in the manufacturing of cigarettes, which releases a more potent form of “free nicotine” replacing the slower acting salt-based nicotine naturally occurring in tobacco. Id. ¶ 221. The use of ammonia has the effect of almost doubling the “nicotine transfer efficiency of cigarettes.” Id. ¶ 220. As John Kreisher, a former associate scientific director of CTR, put it: “ammonia helped the industry lower the tar and allowed smokers to get more bang with less nicotine.” Id. ¶ 177. The defendants were aware of ammonia’s effect on nicotine levels in cigarette smoke. A1991 Brown & Williamson confidential tobacco blending manual states: Ammonia, when added to a tobacco blend, reacts with the indigenous nicotine salts and liberates free nicotine .... As the result, of such change in the ratio of extractable nicotine to bound nicotine ... the smoke may be altered in favor of extractable nicotine. As we know, extractable nicotine contributes to impact in cigarette smoke and this is how ammonia can act as an impact booster. ■ IcL ¶ 221. While defendants have allegedly been manipulating nicotine levels and potency in cigarettes, they have, according to the Blues, “continue[d] to deny to the public ... that they manipulate and control nicotine levels.” Id. ¶ 224. Examples include: • An April 1994 advertisement that Philip Morris ran in newspapers across the country affirmatively representing that Philip Morris does not “manipulate” nicotine levels in its cigarettes and that in any event “Philip Morris does not believe that cigarettes smoking is addictive.” (Id. ¶ 227); and • A similar R.J. Reynolds advertisement in newspapers across the United States in 1994 stating that “we do not increase the level of nicotine in any of our products in order to ‘addict’ smokers. Instead of increasing the nicotine levels in our products, we have in fact worked hard to decrease ... ‘nicotine.’ ” (Id. ¶ 228). Plaintiffs also allege that Tobacco “fraudulently promoted filtered and low-tar cigarettes as safer or healthier” cigarettes than conventional ones. Id. ¶ 166. According to plaintiffs, these “light” cigarettes, as they are commonly called, are not only lacking in “significant health benefits” over conventional cigarettes, but in “most instances ... increase the risk of emphysema, heart disease, and other diseases caused by smoking[.]” Id. ¶¶ 172. “This is because smokers of these [light] cigarettes tend to smoke more, inhale more deeply,-and hold the smoke in their lungs longer, in order to maximize their intake of nicotine.” Id. The Blues allege that Tobacco knowingly “designed the[ ] so-called ‘light’ products so that advertised tar and nicotine levels understate the amounts of tar and nicotine actually ingested by human smokers.” Id. ¶ 174. According to plaintiffs: Such design features include a technique called filter ventilation in which nearly invisible holes are drilled in the filter paper, or the filter paper is made more porous. Predictably, many smokers of advertised low-tar and nicotine cigarettes block the tiny, laser generated perforations in ventilated filters with their fingers or lips, thereby resulting in greater tar and nicotine yields to those smokers than those measured by the FTC smoking machine. Id. It is claimed by the Blues that Tobacco “knew that the ability to block ventilation holes allows smokers to ‘compensate’ for nicotine losses that would otherwise be caused by tar-reducing modifications.” Id. ¶ 175. Tobacco allegedly studied smoker behavior in order to design cigarettes that allow smokers to compensate for lower nicotine yields while appearing to deliver less nicotine in FTC tests. See id. ¶¶ 175-176. To support this contention, the Blues identify a research study presented at a 1974 BATCO conference which concluded that “ ‘whatever the characteristics of cigarettes as determined by smoking machines, the smoker adjusts his pattern [of smoke inhalation] to deliver his own nicotine requirements (about 0.8 mg. per cigarette).’ ” Id. ¶ 176. Rather than actually develop -a less-harmful cigarette, as light cigarettes were advertised to be, Tobacco allegedly conspired by. way of a “gentlemen’s agreement” to suppress independent research, development and marketing of such a cigarette. See id. ¶ 184. According.to plaintiffs: [Tobacco] recognized a difference between ‘health-oriented’ cigarettes, which were never marketed on a wide basis, and ‘health-image’ cigarettes, such as low-tar/low-nicotine products. The latter were only a marketing tool to give the illusion of a safer product. Id. ¶ 200. As the Blues describe it, the situation among the six major tobacco manufacturers represented a dilemma: no company wanted a “safer” cigarette, but any company, by being the first to produce such a cigarette, stood to gain substantial market share. See id. ¶ 185. Lorillard’s Director of Research and Development wrote to the Lorillard’s president in 1966 regarding the development of a safer cigarette: “if we fail to pursue this research and/or a competitor marketed a cigarette whose smoke condensate gives little tumorigenic response, ... a significant sales loss could result.” Id. ¶ 191. Production of such a “safer” cigarette by even one manufacturer would have represented an indictment of the whole industry, potentially unleashing litigation for earlier injuries and illnesses due to conventional cigarettes. As Jeffrey Wigand, a former Vice President for Research and Development for Brown & Williamson has testified, “ ‘[a]ny research on a safer cigarette would clearly expose every other product as being unsafe and, therefore, present a liability issue in terms of any type of litigation.’ ” Id. ¶ 207. Allegedly faced with the choice between abandoning the conspiracy and developing a less harmful cigarette on the one hand, or maintaining the conspiracy and avoiding potential liability for injuries resulting from conventional cigarettes on the other, the major tobacco manufacturers opted to maintain the scheme, aided in part by the highly concentrated industry market structure. See id. ¶¶ 72-73, 201-210; see also id. ¶ 72 (“In 1994, American Tobacco was acquired by B.A.T. and merged into Brown & Williamson [which itself was a B.A.T. subsidiary], Philip Morris and R.J. Reynolds are the industry leaders with national market shares of approximately 48% and 25%, respectively, as of March 31, 1998. The approximate market shares of the other cigarette manufacturers are: Brown & Williamson, 17%; Lorillard, 8%, and Lig-gett, 2%.”). As proof of Tobacco’s conscious decision to trade-off decreased public injury from smoking for maintenance of its corporate profits, the Blues advance an excerpt from a confidential internal Philip Morris memorandum regarding Philip Morris’s decision not to market a less harmful cigarette: “[A]fter much discussion we decided not to tell the physiological story [regarding the health effects and addictiveness of conventional cigarettes] which might have appealed to a health conscious segment of the market. The product as test marketed ... was unacceptable to the public ignorant of its physiological superiority.” Id. ¶ 202. Plaintiffs identify two additional areas of deceptive conduct that, they allege, were central to Tobacco’s conspiracy: the target marketing of cigarettes and other tobacco products to children; and the intentional deflecting of tobacco-related healthcare costs to health plan providers such as the Blues. Plaintiffs contend that Tobacco— with the use of sophisticated marketing tools such as Joe Camel — “systematically targeted” youth to encourage them to purchase cigarettes in violation of various state laws, including New York’s, in order “to replace dying adult[] [smokers].” Id. ¶ 234. As support for this contention, plaintiffs identify excerpts from a 1974 R.J. Reynolds marketing plan that highlighted as an “opportunity area” a plan to “increase our young adult franchise,” with “young adults” described as including those children 14 to 17 years of age. Id. ¶ 235. As a final part of the conspiracy, Tobacco allegedly targeted “healthcare payors and other related entities ... with misleading statements, political and economic pressure and other coercive, deceptive and fraudulent actions to prevent such entities from taking actions which might result in a decrease in tobacco use among their covered persons.” Id. ¶ 262; see id. ¶ 182 (“A primary purpose and effect of these decades-old denials and the suppression of scientific testing have been that ... [the Blues did not] ... act earlier and more aggressively to reduce cigarette smoking”). It is alleged that Tobacco intentionally sought to induce in the Blues “the false impression that there was an open question whether tobacco use was harmful to health when they knew and believed the contrary.” Id. ¶ 274. The underlying purpose was to forestall the introduction of differential health care insurance premiums for smokers and non-smokers, and to prevent the implementation of smoking cessation programs. See id. ¶¶ 269, 270, 274. Supporting the Blues’ contention that they were intentionally targeted with misinformation by Tobacco, the Blues identify an undated R.J. Reynolds memorandum entitled, “Discouraging Health Insurance Industry Discrimination Against Smokers,” which expressly identified the “Blue Cross Blue Shield Association” as its targeted audience for a Tobacco campaign “to discourage unfair health insurance practices against smokers.” Id. ¶ 268. Plaintiffs also identify a Tobacco Institute document entitled “Preliminary Draft Communications Plan” which states: The following is a program designed to respond to anti-smoking campaigns that are damaging to the tobacco industry Tactics .... Execute a special program targeted at medical personnel and health facility administrators .... This program would be intended to present evidence demonstrating that ... public smoking is not a health issue. Id. ¶ 225. The Blues contend that during all relevant times Tobacco knew the information it was targeting to third-party healthcare payors such as themselves was false. See, e.g., id. ¶ 272. They also allege that- they detrimentally relied on this misinformation in not instituting differential health-insurance-premium pricing between smokers and nonsmokers, and in not implementing smoking cessation campaigns. Either of these programs if implemented, the Blues contend, would have markedly reduced the incidence of smoking-related illnesses and thus the medical expenditures ultimately paid by the Blues. See id. ¶ 84. Ill SUMMARY JUDGMENT STANDARD Rule 56 Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Mitchell v. Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir.1999). “In considering the motion, the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986). The burden rests initially with the moving party to demonstrate the absence of a genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party appears to meet this burden, the opposing party must produce evidence that raises a material question of fact to defeat the motion. See Fed.R.Civ.P. 56(e). This evidence may not consist of “mere conelusory allegations, speculation or eon-jecture[.]” Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996); see also Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (“Conelusory allegations will not suffice to create a genuine issue.”). In deciding the motion, all inferences and ambiguities are to be resolved in favor of the party opposing summary judgment. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994) (citations omitted). Only when reasonable minds could not differ as to the import of the proffered evidence is summary judgment proper. See Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). IV RICO Discussion of similar civil RICO claims in Falise v. American Tobacco Co., 94 F.Supp.2d 316, 333-53 (E.D.N.Y.2000), is relied upon and incorporated into this memorandum. A. Racketeering 1. Scheme Components To make out a valid civil-RICO claim, a plaintiff must demonstrate that the defendants constituted an enterprise conducting its affairs through a “pattern of racketeering activity” resulting in injury to the plaintiffs business or property. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (“A violation of section 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity .... In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.”). Racketeering activity “consists of no more and no less than the commission of a predicate act.” Id. at 495, 105 S.Ct. 3275; see 18 U.S.C. § 1961(1). Section 1961(1) of RICO sets out an exhaustive list of predicate acts, including among others mail fraud and wire fraud. To establish the requisite “pattern of racketeering,” a plaintiff must identify “at least two acts of racketeering activity, ... the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5); see also Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 154, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (“[T]he heart of any RICO complaint is the allegation of a pattern of racketeering.”). As the Supreme Court has instructed, “while two acts are necessary, they may not be sufficient” to establish an actionable pattern of racketeering activity. Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275 (“two isolated acts of racketeering activity do not constitute a pattern”). Rather, the predicate acts alleged must be sufficiently related and continuous to establish a true pattern. Id. at 496 n. 14, 105 S.Ct. 3275 (“continuity plus relationship ” (emphasis in original)). To satisfy the relatedness requirement, the acts must “have the same or similar purposes, results, participants, victims, methods of commission, or [be] otherwise ... interrelated by distinguishing characteristics and ... not isolated events.” Id.; see H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 237-238, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (section 1961(5) “does not so much define a pattern of racketeering activity as state a minimum necessary condition for the existence of such a pattern”; “[i]t is not the number of predicates, but the relationship that they bear to each other or to some external organizing principle that renders them ‘ordered’ or ‘arranged’ ” to constitute a pattern of racketeering activity); U.S. v. Polanco, 145 F.3d 536, 541 (2d Cir.1998) (“Predicate acts must be related to each other (‘horizontal’ relatedness), and they must be related to the enterprise (‘vertical’ relatedness). A predicate act is ‘related’ to an enterprise if it is related to the activities of that enterprise. A predicate act is related to a different predicate act if each predicate act is related to the enterprise.” (internal citations and quotation marks omitted)). Continuity requires a temporal examination of the duration of the predicate acts. See, e.g., H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893 (continuity is “centrally a temporal factor”). Generally, the longer the time period during which predicate acts took place, the more likely continuity exists, establishing the racketeering pattern. See, e.g., id. (“Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy th[e continuity] requirement: Congress was concerned in RICO with long-term criminal activity.”); Hindes v. Castle, 937 F.2d 868, 873 (3d Cir.1991) (“While it is not in itself sufficient to establish a pattern, ... no pattern can be shown without the required duration.”); see also Eastern Publishing & Advertising Inc. v. Chesapeake Publishing & Advertising, Inc., 895 F.2d 971, 973 (4th Cir.1990) (a “scheme to defraud ... [may] demonstrate the requisite continuity ... either by its intrinsic nature or sheer duration”). If the predicate acts form part of a legal entity’s regular course of doing business, continuity is established. See, e.g., Tabas v. Tabas, 47 F.3d 1280, 1296 (3d Cir.1995) (“as a regular way of doing business, defendants were fraudulently misrepresenting expenditures to benefit themselves and to deprive the [Estate] and its beneficiaries of their legitimate share of the profits.... [T]hese practices, defendants’ regular way of doing business, continued even after plaintiffs’ complaint was filed. As a consequence, plaintiffs have established a threat of continuing fraudulent conduct as required under an ‘open ended’ continuity analysis.”); Fleet Credit Corp. v. Sion, 893 F.2d 441, 447 (1st Cir.1990) (continuity is established if predicate acts are “a regular way of conducting the ongoing businesses” (citation and internal quotation marks omitted)). A RICO “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. §, 1961(4); see also United States v. Masters, 924 F.2d 1362, 1366 (7th Cir.1991) (“The statute says ‘enterprise includes’— not ‘enterprise means.’ The point of the definition is to make it clear that it need not be a formal enterprise.”). United States v. Huber, 603 F.2d 387, 394 (2d Cir.1979) (“The definition of ‘enterprise’ is a list beginning with the word ‘includes.’ This indicates that the list is not exhaustive but merely illustrative.”). The Supreme Court has identified three characteristics that must be established to prove a RICO enterprise: (1) it must be “an ongoing organization, formal or informal”; (2) it must function as a continuing unit; and (3) it must be more than the “ ‘pattern of racketeering activity’ ” — that is, it must be “an entity separate and apart from the pattern of activity in which it engages.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Multiple corporations or other legal entities can, when working in concert either overtly dr covertly, form an association-in-fact RICO enterprise. See, e.g., United States v. London, 66 F.3d 1227, 1243 (1st Cir.1995) (“two or more legal entities can form or be part of an association-in-fact RICO enterprise”); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir.1993) (“a group or union consisting solely of corporations or other legal entities can constitute an ‘associated in fact’ enterprise” (emphasis in original)); Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir.1989) (“nothing precludes an association of [two or more] corporations for illicit purposes from constituting an enterprise”); Dana Corp. v. Blue Cross & Blue Shield Mutual of Northwest Ohio, 900 F.2d 882, 887 (6th Cir.1990) (citing with approval Huber, 603 F.2d at 393-94, for the proposition that “in view of the broad construction of RICO, a group of corporations can form an enterprise”); United States v. Navarro-Ordas, 770 F.2d 959, 969 (11th Cir.1985) (“a group of corporations can be a ‘group of individuals associated in fact’ within the meaning of the ‘enterprise’ definition of 18 U.S.C. § 1961(4)”); Huber, 603 F.2d at 393-94 (same). Once a pattern of racketeering orchestrated through a RICO enterprise has been established, an actionable claim under civil RICO against a particular defendant still requires proof (1) that the particular defendant was distinct from the alleged RICO enterprise, (2) that the defendant was “employed by or associated with [the] enterprise” and (3) that the defendant “conducted] or participated], directly or indirectly, in the conduct of such enterprises affairs through [the] pattern of racketeering activity[.]” 18 U.S.C. § 1962(c). With respect to the first requirement, “a single entity [such as a corporation] ... [may] be both the RICO [defendant] and one of a number of members of the RICO ‘enterprise.’ ” Cullen v. Margiotta, 811 F.2d 698, 729-30 (2d Cir.1987). Subsidiaries and other affiliates of a parent corporation — alone or together with the parent corporation — do not constitute a RICO enterprise distinct from the parent corporation. See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1063-64 (2d Cir.1996), vacated on antitrust grounds, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998) (distinctiveness requirement not satisfied where the three corporate defendants constituted the alleged enterprise; though three separate legal entities, the three affiliates “operated within a unified corporate structure” and were “guided by a single corporate consciousness”); see also Katzman v. Victoria’s Secret Catalogue, 167 F.R.D. 649, 658 (S.D.N.Y.1996) (association-in-fact enterprise consisting of parent company, subsidiaries, and their employees “ignores the required distinction between the culpable ‘person’ and the RICO ‘enterprise’ ”); Nebraska Security Bank v. Dain Bosworth Inc., 838 F.Supp. 1362, 1368 (D.Neb.1993) (“a parent corporation and its wholly owned subsidiary ... cannot together or alone form a RICO enterprise for § 1962(c) purposes when one or both are also the defendant ‘person’ ”). As to the second requirement— that the defendant be “associated with” the RICO enterprise — mere alliance with a legitimate entity, not involving any of the alleged wrongdoing or participation in any predicate acts, is insufficient. See, e.g., Gussin v. Shockey, 725 F.Supp. 271, 277 (D.Md.1989) (“The mere fact [that a defendant] could be described as an agent for the ... [enterprise] does not give rise to that relationship with an enterprise which is encompassed by RICO .... [The defendant] must associate with an enterprise to carry on a pattern of racketeering activity. That association must include an aspect of purpose to violate the act.” (emphasis added)). A defendant is considered to have “associated with” a RICO enterprise if he engages in the predicate act violations with other members of the enterprise, even if he is not an actual “insider” of the enterprise. See, e.g., Shulton, Inc. v. Optel Corp., Civ. No. 85-2925, 1986 WL 15617, at * 10 (D.N.J. Sept.29,1986). The third requirement, that the defendant has “conducted] or participated]” in the affairs of the enterprise, contemplates that the defendant be involved in the operation, direction or management of the enterprise. As the Supreme Court stated in Reves v. Ernst & Young, 507 U.S. 170, 183, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993): In order to “participate, directly or indirectly, in the conduct of such enterprises’s affairs,” one must have some part in directing those affairs. Of course, the word “participate” makes clear that RICO liability is not limited to those with primary responsibility for the enterprise’s affairs, just as the phrase “directly or indirectly” makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprise’s affairs is required. Id. (footnote omitted); see also Schmidt v. Fleet Bank, 16 F.Supp.2d 340, 347 (S.D.N.Y.1998) (“There is a ‘substantial difference’ between actual control over an enterprise and association with an enterprise in ways that do not involve control; only the former is sufficient under Reves because ‘the test is not involvement but control’ ”). A showing of active participation in at least partial orchestration or direction of the racketeering activities of the enterprise is generally sufficient to satisfy the “conduct or participate” requirement of section 1962(c). 2. Application to B.A.T. Defendant B.A.T. Industries — a British holding company created in 1976 as corporate parent of United States defendant Brown & Williamson Tobacco Corporation — seeks summary judgment for the RICO claims against it. It contends that Empire has failed to proffer evidence that B.A.T. was involved in a pattern of racketeering activity and that it conducted the affairs of a RICO enterprise. B.A.T.’s arguments lack merit. B.A.T.’s assertion that it is entitled to summary judgment because it was not involved in a pattern of racketeering activity is based on a misinterpretation of the law. It argues that “[t]o survive a summary judgment motion, ... the requisite ‘pattern’ must be specifically demonstrated as to each defendant; i.e., each defendant must have committed at least two predicate acts within 10 years of each other.” B.A.T. Indus. Mem. for Summ. Judg., at 8 (emphasis added); id. at 11 (“None of the enumerated uses of the wires or mails alleged ... entails use of those media by B.A.T. Industries. Plaintiffs do not point to any specific acts by B.A.T. Industries which establish a pattern of racketeering activity under the RICO statute” (emphasis in original)); see B.A.T. Indus. Resp. for Summ. Judg., at 6 (no “evidence that B.A.T. Industries committed two predicate acts within 10 years of each other” and no evidence “that B.A.T. Industries committed two predicate acts at any time, regardless of the time period”). RICO Liability for any particular defendant is not, contrary to B.A.T.’s assertion, premised on establishing that each defendant actually committed two predicate acts, but only that each defendant was “involved” in the commission of two predicate acts that are sufficiently related and continuous to establish a pattern. Wasserman v. Maimonides Med. Center, 970 F.Supp. 183, 189 (E.D.N.Y.1997); see also, e.g., Banks v. Wolk, 918 F.2d 418, 421 (3d Cir.1990) (“[N]o defendant can be liable under- RICO unless he -participated in two or more predicate offenses sufficient to constitute a pattern. This participation need not be direct.” (emphasis added)). Put more directly, RICO liability extends not only to the defendant who pulled the trigger, but also to the defendants who ordered and directed it. Empire’s proffered evidence raises material questions regarding B.A.T.’s active direction of Brown & Williamson Tobacco’s efforts in the Tobacco Conspiracy, particularly Brown and Williamson’s execution of various predicate mail' and wire fraud acts. See, e.g., Simon v. Philip Morris, Inc., 86 F.Supp.2d 95, 99-119 (E.D.N.Y.2000) (cat-aloguing B.A.T.’s participation in furthering the Tobacco Conspiracy). Documents and conference transcripts indicate that B.A.T. — in cooperation with the other major tobacco companies — ordered its subsidiaries (including Brown and Williamson) to adopt a fraudulent smoking and health position, see id. at 107-09, prohibited its subsidiarie