Full opinion text
AMENDED MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge. TABLE OF CONTENTS I. INTRODUCTION .98 II. STANDARD OF PROOF.98 III. FACTS.99 A BAT’s Organization.99 B. The 1976 “Scheme of Arrangement”.100 C. BAT’s New York Contacts.100 D. Tobacco Industry Conspiracy.100 E. New York as a Situs of the Tobacco Industry Conspiracy.. 106 F. BAT’s Tortious Conduct in Furtherance of the Conspiracy.107 1. Perpetuation of False Smoking and Health Scientific “Controversy”.107 2. Suppression of Safer Cigarette.113 3. Manipulation of Nicotine.114 4. Acting in Concert with B & W to Hide Information.116 G. BAT’s Extensive Participation in the Marketing and in Research and Development of Cigarettes.118 IV. NEW YORK STATUTORY BASES FOR JURISDICTION.119 A. Conspiracy Theory of Jurisdiction.119 1. Law.119 2. Application of Law to Facts.120 a. Prima Facie Showing of Conspiracy.122 b. BAT’s Relationship to the Tobacco Conspiracy and the New York Acts of its Co-Conspirators.123 B. Other Theories of Personal Jurisdiction.124 1. CPLR 302(a)(3)(h).124 2. CPLR 301.125 V. DUE PROCESS.126 A. Law.126 1. Minimum Contacts.127 a. Membership in a Conspiracy.127 b. Intentional Tortious Acts Aimed at the Forum.128 2. Reasonableness. 00 3 3. Adaptation of Due Process to Mass Tort Context 05 Sh B. Application of Law to Facts . CO to 1. Minimum Contacts. W to 2. Reasonableness. 03 co 3. Mass Torts Due Process Standard. W -a VI. Conclusion. .137 I. INTRODUCTION This case poses the question: can a foreign national holding company always shield itself against a mass tort suit in New York? In this instance it cannot. It may not hide behind narrow jurisdictional concepts created for another day when its own acts and those of its co-conspirators have allegedly caused great harm in this state. Plaintiffs sue various tobacco companies and affiliated organizations in a nationwide smoker personal injury class action. They allege that for decades the tobacco industry, in the face of what it knew was overwhelming evidence of the addictiveness of nicotine and of the adverse health consequences of smoking, has conspired to deceive the American public, including the plaintiffs. B.A.T. Industries, p.Lc. (“BAT”), the British holding company parent of United States defendant, Brown & Williamson Tobacco Corp. (“B & W”), has moved to dismiss for lack of personal jurisdiction. It claims that it is a passive stockholding parent corporation with no connection to the fraud and conspiracy alleged by the plaintiffs. BAT’s motion was denied by order dated July 19, 1999. This amended memorandum explains the basis for the denial. BAT is a quintessential example of a sophisticated holding company presiding over a multinational corporate empire whose operations span the globe. Through the promulgation of binding company-wide policies and long distance active participation in the large-scale marketing, research, and development of cigarettes, it is regnant in the cigarette industry in the United States and throughout the world. Its sway is an aspect of today’s global technological-commercial community, in which the click of a mouse may affect events unfolding thousands of miles away and concepts of sovereignty for jurisdictional purposes have eroded. BAT’s conduct has supranational effects. It must accept the price of its international ascendancy by defending suits here in the United States, where it has allegedly been responsible for massive damage. II. STANDARD OF PROOF Predicating subject matter jurisdiction on diversity of citizenship, plaintiffs’ Amended Complaint alleges causes of action sounding in negligence, strict product liability, fraudulent concealment and civil conspiracy. The instant motion challenging personal jurisdiction was filed pursuant to Rule 12(b)(2). Plaintiffs presented over five hundred exhibits from prior litigations in opposition. BAT responded with more documents. Given the voluminousness of the submissions, the motion was converted to one for summary judgment with the parties’ consent. The burden of establishing personal jurisdiction is on the plaintiffs. The extent of this obligation depends both upon whether discovery has taken place and upon the nature of the jurisdictional challenge. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). “Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith legally sufficient allegations of jurisdiction.” Id. (citation omitted). Where relevant discovery has been extensive, the plaintiffs allegations must be supported by “an averment of facts that if credited by the trier, would suffice to establish jurisdiction over the defendant.” Id. If personal jurisdiction is, as here, contested via a summary judgment motion, “the court proceeds, as with any summary judgment motion, to determine if undisputed facts exist that warrant the relief sought.” Id.; see also Fed.R.Civ.P. 56. Ultimately, the plaintiff bears the burden of establishing personal jurisdiction over the defendant by a preponderance of the evidence, either at an evidentiary hearing or at trial. See, e.g., Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir.1999); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Short of such a hearing or a trial, plaintiffs burden remains to establish a prima facie case. See Tilyou v. Carroll, No. 92 CV 0750, 1992 WL 170916, at *3 (E.D.N.Y. July 2, 1992). Since there has been neither a factual hearing nor a trial, but discovery has been substantial, plaintiffs must establish a factually supported prima facie case of jurisdiction. They have done so, as the following discussion demonstrates. III. FACTS A. BAT’s Organization BAT is a holding company based in London, England and incorporated under the laws of England and Wales. Its existence dates to 1976, when it became the controlling parent corporation of the British American Tobacco Company, Ltd. (“BAT-Co”). BAT currently has over five hundred subsidiaries in some forty countries primarily engaged in the tobacco and financial services businesses. The majority of its revenues derive from its tobacco-related activities. See, e.g., Pis.’ Ex. 165 at 14 (BAT Directors’ Report and Accounts 1995). BAT bills itself as “the world’s most international cigarette manufacturer” owning the leading cigarette brand in over thirty different markets. See, e.g., Pis.’ Ex. 167 at 2 (Facts and Figures 1996). In 1995, it sold 670 billion cigarettes, achieving a 12.4 percent share of the world market. See id. A substantial percentage of these cigarettes were purchased by United States smokers. In public filings and promotional documents, BAT sometimes refers to itself as the “BAT Group,” the “B.A.T. Industries Group,” or “the Group.” This term is used by BAT to collectively describe the entire family of its affiliated companies. BATCo is a United Kingdom-based corporation that sells tobacco products and conducts tobacco-related scientific research. From 1902 until its 1976 acquisition by BAT, it was the controlling parent company of the BAT Group, which consisted of hundreds of tobacco subsidiaries. It acquired the stock of B & W in 1927. At the time of its acquisition by BAT, BATCo produced over 300 cigarette brands worldwide and produced the leading cigarette in forty countries. See Pis.’ Ex. 25 at 15. Its most profitable area of operation was North America. Id. BATCo also “devote[d] considerable resources to research and development relating to tobacco” and “played a prominent part in research associated with problems of smoking and health.” Id. at 16. Since 1976, BATCo has continued to operate as a BAT Group tobacco company. In 1998, BATCo changed its name to British American Tobacco (Investments) Limited. BATUS, a Delaware corporation based in Louisville, Kentucky, is a wholly owned subsidiary of BAT. It holds the shares of B & W and BAT’s other United States interests. B & W is a Delaware Corporation based in Louisville Kentucky. It is the third largest cigarette company in the United States market. Its domestic brands include Kool, Carlton, Pall Mall and Viceroy. B & W exports such leading international brands as Kent, Lucky Strike, Barclay and Capri. See Pis.’ Ex. 166 at 12 (BAT Industries Facts and Figures 1995). Since 1976, B & W has been an indirect wholly-owned subsidiary of BAT. B. The 1976 “Scheme of Arrangement” On July 23, 1976, as part of what is known in the United Kingdom as a “Scheme of Arrangement,” the Tobacco Securities Trust Company (“TST”) became the sole ordinary shareholder of BATCo. TST then changed its name to B.A.T. Industries Limited, which was ultimately changed to B.A.T. Industries, p.l.c. in 1981. The Scheme of Arrangement was undertaken to “facilitate the development of the divisional organization begun by BAT in 1973.” Pis.’ Ex. 24 at 1 (Joint Statement by British American Tobacco Co., Ltd. and Tobacco Securities Trust Co., Ltd.). C. BAT’s New York Contacts BAT has no New York office, mailing address, phone listing, or bank account and pays no New York taxes. It does not directly own, use or possess any New York real estate. BAT neither manufactures nor sells cigarettes. These functions are carried out by its tobacco subsidiaries, one of which is B & W. B & W currently has a United States market share of eighteen percent. See Pis.’ Ex. 167 at 13. Since 1987 the BAT Group has earned billions in pre-tax dollar profits from its United States tobacco operations. See Plaintiffs’ Proffer of Facts at B-2. While the percentage of these profits ultimately traceable to New York is unclear, B & W’s strong market presence and the size of the New York population strongly support the inference of substantial New York cigarette sales roughly proportional to the percentage of New York residents in the total United States population — somewhere in the neighborhood of seven percent. Thus, for purposes of this jurisdiction motion, it can be inferred that BAT’s earnings in- New York through B & W in the last decade were many millions of dollars. Some of BAT’s major institutional investors have been based in New York. See, e.g., Pis.’ Ex. 207 (listing Oppenheimer Capital Management, Chancellor Capital Management and Manufacturers Hanover Trust, all New York-based, among the largest American Depositary Receipt owners of BAT). BAT Board Members and other representatives have visited New York frequently in connection with BAT’s solicitation of investors. See, e.g., Pis.’ Ex. 204 (suggested program for June 1990 visit to United States featuring group and one-on-one investor meetings in New York and a Dinner for “Friends of B.A.T.” in New York); Pis.’ Ex. 213 (report on October 1990 meetings in New York with six or seven key investors); Pis.’ Ex. 226 (itinerary for BAT Chairman’s visit to New York in August 1991); Pis.’ Ex. 241 (invitation to BAT luncheon hosted by First Boston Corp. on October 1, 1992 in New York). D.Tobacco Industry Conspiracy Plaintiffs allege that BAT participated in a conspiracy to manufacture hazardous products and deceive American consumers about the adverse health consequences of using them. The available evidence of such a conspiracy is substantial. The exhibits submitted in opposition to BAT’s motion to dismiss focus largely on the conduct of BAT itself. For purposes of this memorandum, they are supplemented by widely publicized B & W documents — now posted on the website of the University of California at San Francisco’s Library and Center for Knowledge Management — demonstrating the existence of an industry-wide conspiracy with significant links to New York. See http://www.li-brary.ucsf.edu/tobacco; see also transcript of hearing in Brown & Williamson Tobacco Corp. v. Regents of University of California, No. 96-7298 (Cal.Super.Ct. May 25, 1995) (B & W was not entitled to return of company documents or other relief in view of strong public interest in the information they contained, most of which was already in the hands of the media and known to the public); Stanton A. Glantz et al., The Cigarette Papers (1996); Lisa Bero, et al., Lawyer Control of the Tobacco Industry’s External Research Program: The Brown and Williamson Documents, 274 JAMA 241 (1995). Documents from this website are referred to by document number using the notation, “Doc. No.” Any objection to the court’s reliance on them has been waived by BAT. See transcript of hearing dated Dec. 23,1999. B & W, BAT’s United States subsidiary, objects to the use of a number of these documents as well as to some of the plaintiffs’ exhibits relied upon in the discussion which follows. B & W is, however, not a party to the instant motion. It has not waived any right or privilege in connection with the use of the documents in question, but it must postpone its objections until it can appropriately raise them on its own behalf. The modern era of smoking and health research is generally said to have begun around 1900 with observations by vital statisticians of an increased incidence of lung cancer. See Susan Wagner, Cigarette Country 68 (1971). Yet, it was not until the early to mid-1950’s, when a series of important studies linking smoking to cancer in humans and animals was published, that the health consequences of smoking became a public issue in the United States. See id. at 76-78 (citing articles). Reacting, the United States tobacco companies jointly formed the Tobacco Industry Research Committee (“TIRC”). A January 1954 newspaper advertisement published nationwide announced TIRC’s formation. Entitled “A Frank Statement to Cigarette Smokers,” the advertisement was signed by the heads of most of the major tobacco companies, including B & W. See Pis.’ Ex. 1.This original tobacco industry “position paper” playing down the connection between cigarettes and disease is worth quoting at length: Recent reports on experiments with animals have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings. Although conducted by doctors of professional standing these experiments are not regarded as conclusive in the field of cancer research. However, we do not believe that any serious medical research, even though its results are inconclusive should be disregarded or lightly dismissed. At the same time, we feel it is in the public interest to call attention to the fact that eminent doctors and research scientists have publicly questioned the claimed significance of these experiments. Distinguished authorities point out: 1. That medical research of recent years indicates many possible causes of lung cancer. 2. That there is no agreement among the authorities regarding what the cause is. 3. That there is no proof that cigarette smoking is one of the causes.- 4. That statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modem life. Indeed the validity of the statistics themselves is questioned by numerous scientists We accept an interest in people’s health as a basic responsibility paramount to every other consideration in our business. We believe the products we make are not injurious to health. We always have and always will cooperate closely with those whose task it is to safeguard the public health. For more than 300 years, tobacco has given solace; relaxation and enjoyment _At one time or another ... critics have held it responsible for practically every disease of the human body. One by one these charges have been abandoned for lack of evidence. Regardless of the record of the past, the fact that cigarette smoking today should even be suspected as a cause of serious disease is a matter of deep concern for us. Many people have asked us what we are doing to meet the public’s concern aroused by the recent reports. Here is the answer: 1. We are pledging aid and assistance to the research effort into all phases of tobacco use and health. This joint financial aid will of course be in addition to what is already being contributed by individual companies. 2. For this purpose we are establishing a joint industry group consisting initially of the undersigned. This group will be known as Tobacco Industry Research Committee. 3. In charge of the research activities of the 'Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board- of scientists disinterested in the cigarette industry. A group of distinguished men from medicine, science and education will be invited to serve on this Board. These scientists will advise the Committee on its research activities. This statement is being issued because we believe the people are entitled to know where we stand on this matter and what we intend to do about it. Pis.’ Ex. 1 (emphasis added). ■ The documents reveal that TIRC was the product of the tobacco industry’s public relations, legal and political needs rather than of any concern for public health. A 1973 memorandum by B & W’s general counsel, Ernest Pepples, describes the multiple functions of TIRC, later renamed the Council for Tobacco Research (“CTR”): Originally CTR was organized as a public relations effort. The industry told the world CTR would look at the diseases which were being associated with smoking. There was even a suggestion by our political spokesmen that if a harmful element turned up the industry would try to root it out. The research of CTR also discharged a legal responsibility. The manufacturer has a duty to know its product. The Scientific Advisory Board composed of highly reputable independent scientists constitute a place where the present state of the art is constantly being updated. Theoretically SAB is showing us the way in a highly complex field. There is another political need for research. Recently it has been suggested that CTR or industry research should enable us to give quick responses to new developments in the propaganda of the avid anti-smoking groups. For example, CTR or someone should be able to rebut the suggestion that smokers suffer from a peculiar disease, as widely alleged in the press some few months ago. Doc. No.2010,02 at 2 (emphasis added); see also Doc. No.2010.03 (memorandum by Mr. Pepples to B & W’s then Chairman and CEO discussing “two aspects of particular value in CTR: (l)the direct legal protection derived by Brown & Williamson and (2) the political and public relations advantage accruing to the industry”). In another memorandum, Mr. Pepples elaborated on the “litigation value” of CTR: [CTR] avoids the research dilemma presented to the responsible manufacturer of cigarettes, which on the one hand needs to know the state of the art and on the other hand can not afford the risk of having in-house work turn sour. The point here is the value of having CTR doing work in a nondirected and independent fashion as contrasted with work either in-house or under B & W contract which, if it goes wrong, can become the smoking pistol in a lawsuit. Id. cf. Doc. No.2029.02 (memorandum dated Mar. 11, 1982 from Mr. Pepples to B & W’s head smoking and health researcher; “I have asked that all of the recent proposals for industry funding of scientific work be directed to you for a review. As you know these projects arise out of a law concern. However, it is also most important that we voice any ‘scientific’ objection to them early on in the initiation process.” (emphasis added)). Four years after it created TIRC, the tobacco industry established the Tobacco Institute (“TI”) as its lobbying and public relations arm.' TI has served as the industry’s “focal point for criticism of research that indicates a connection between smoking and health.” Pis.’ Ex. 22 (Industry Response to Cigarette/Health Controversy). The New York public relations firm of Hill & Knowlton (“H & K”) appears to have been instrumental in the formation of TIRC and TI and to have played a dominant role in both organizations. An undated memorandum characterizes H & K as “so intimately involved in the affairs of both [TI and TIRC] that a proper separation of functions ... is virtually impossible in this brief summary.” Doc. No.1902.05 at 1, quoted in Glantz, supra, at 39-40. The memorandum also discusses staff overlap between TIRC, TI and H & K and states that an H & K employee served as both the executive director of TIRC and the executive secretary of its Scientific Advisory Board, making him “without question ... the administrative head of TIRC.” Id. During the early 1960’s, both the British Royal College of Physicians and the United States Surgeon General published reports identifying cigarette smoking as a cause of lung cancer. The British report was issued in 1962. See Glantz, supra, at 46-47. The Surgeon General’s report on smoking and health followed two years later. See Public Health Service, U.S. Department of Health, Education and Welfare, Pub. No. 1103, Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service (1964) (“Surgeon General’s Report”). It concluded that smoking is causally related to lung cancer in men; the magnitude of the effect of smoking far outweighs all other factors. The data for women, though less extensive, point in the same direction. Id. at 37. The report also named cigarette smoking as the prime, cause of chronic bronchitis in the United States. See id. at 38. Available documents- indicate that the industry, acting as a whole .and with the implicit cooperation of all its members, reacted to the rising tide of public concern resulting from the issuance of these reports by embarking on an advertising campaign designed, among other things, to discredit the evidence of a causal link between smoking and disease. In 1967, for example, TI reprinted as an advertisement an editorial that had appeared on the front page of Barron’s several weeks before. See Glantz, supra, at 176. The advertisement characterized the Surgeon General’s Report as “a seemingly well-intentioned, if disturbing, effort to brainwash the citizenry into kicking the habit” and of seeking to condemn smoking by “a kind of guilt by statistical association.” Id. at 177. It stated: “Smoking and Health” failed to prove that cigarets [sic] cause lung cancer or any other'of the many ills to which the flesh is heir. With the passage of time, its findings have grown increasingly suspect. Id. In a letter to- the public relations firm which prepared thé Barron’s advertisement, B & W’s president expressed satisfaction with the result and stated that “perhaps the most important thing about this ad was that for the first time we have gotten the industry to take a step forward together, and it was a great opportunity to get them together.” Doc. No. 2101.06 (emphasis added). Individual companies participated in the public relations effort to undermine the scientific evidence on causation. In 1969, for example, a series of advertisements was developed for B & W focusing on the lack of proof of causation and the individual's right to smoke. See Doc. No. 2110.01-05. One of these advertisements belittles the evidence of a causal link by equating it with other supposed “cancer scares”: Ten years ago, there was a cancer scare over the wax in milk cartons. And over using iodine to get a suntan. These theories were about as valid as the one that says toads cause warts. And they’re about as valid as today’s scare-tactics surrounding cigarettes. Because no one has been able to produce conclusive proof that cigarette smoking causes cancer. Scientific, biological, clinical, or any other kind. Doc. No. 2110.01. Additional B & W documents refer to “Project A” and “Project B,” two “public issue” advertising campaigns developed in 1970. See Doc. No. 1001.01 at 12 (Definition of the Brown & Williamson Subjective Coding Taxonomy). “Project A,” apparently proposed by R.J. Reynolds but ultimately rejected by the networks, consisted of three television advertisements on smoking and health which were to have been produced and supplied to the six tobacco companies through TI and substituted for the companies’ own prime time commercials. See Doc. No. 2112.04, at p. 1. “Project B” was comprised of two short advertisements seeking to undercut evidence of the health dangers of cigarettes by portraying it as overblown and exaggerated. The first, for example, declared: You’ve seen the anti-smoking commercials. Dramatic and frightening, they do not appeal to your reason, but rather to your emotions. The fact is, a clear and consistent picture does not emerge from research findings concerning smoking and health. Many statistical connections have been cited against smoking— but these figures work both ways. Some figures which are as questionable as any others, for instance, indicate that people who smoke moderately are actually healthier than non smokers. Doc. No. 2112.02 (emphasis added); see also Doc. No. 2112.05 (comments by B & W executives on Project B). In addition to research grants awarded by its Scientific Advisory Board, the CTR funded “special projects” designed largely to generate research data and witnesses for use in defending lawsuits and opposing tobacco regulation. See Doc. No.2010.02. at 2 (memorandum by Mr. Pepples to B & W’s chairman and CEO; “the industry research effort has included special projects designed to find scientists and medical doctors who might serve as industry witnesses in lawsuits or in a legislative forum”); see also, e.g., Doc. Nos.2048.13-2048.23 (Special Project Lists from 1978-80 and 1983-84). Many CTR “special projects” appear to have been intended either to refute evidence of the health consequences of smoking or to divert attention from this evidence by providing alternate explanations for tobacco-related diseases. Research conducted by “special projects” grantees included: “A Study of the Models Used in the Analysis of Certain Medical Data” (review of the appropriateness of treating biomedical data with the multivariate techniques of assumed normality),” see Doc No.2048.13 at 4, “(1) ‘Preliminary Study of Interrelationships and Causal Paths Linking Smoking, Personality, and Health Variables,’ ” and “(2) ‘Assessment of the Relationship Between Methodological Quality of Previous Smoking and Health Studies and Their Results,’ ” see Doc. No.2048.29 at 5, “The Study of Architectural, Ventilation and Lighting Factors in Relation to Office Building Illness,” see Doc. No. at 2048.23 at 4, “Genetic Aspects of Lung Cancer” see Doc. No.2048.23 at 2, “Retrospective Analysis of Environmental Contacts of Patients with Respiratory Cancer, Other Cancers, and Other Diseases,” see Doc. No.2048.14 at 6, and “Autopsy Study Designed to Examine Accuracy of Lung Cancer Diagnoses (Investigators Checking Autopsy Records of University Hospitals for Period Extending from 1948 to 1974 for Errors in Diagnoses),” see Doc. No.2048.13 at 6; The documents reveal that tobacco industry lawyers were heavily involved in the selection and funding of CTR “special projects.” Timothy Finnegan of the New York law firm of Jacob Medinger & Finnegan (“JM & F”) appears to have played a particularly prominent role. For example, in a letter dated July 2, 1985, Mr. Finnegan recommended approval of a $275,000 grant to Doctors Seltzer and van den Berg, whose prior CTR-funded work had focused on “various characteristics of children prior to their making a decision of whether or not to smoke” and was thus “directly related to the constitutional or genetic hypothesis.” Doc. No.2004.29; see also Doc. No.2031 at 3 (Dr. Carl Seltzer listed as “special project” grant recipient for “Continuation of Work on Constitutional Differences Between Smokers and Nonsmokers”); Doc. No.2034.02 at 2 (letter from Mr. Finnegan dated May 16, 1983 recommending funding Dr. Henry Rothschild’s research into possible genetic markers associated with lung cancer as a CTR special project); Doc. No.2034.01 (letter from B & W agreeing with [Mr. Finnegan’s] recommendation); Doe. No.2015.02 at 2 (letter from Mr. Finnegan dated Feb. 15, 1982 recommending awarding a CTR “special project” grant of $25,000 to Dr. Rothschild for research on genetic aspects of lung cancer); Doc. No.2034.06 (letter from B & W agreeing with Mr. Finnegan’s recommendation); Doc. No.2031.01 at 2 (Special Projects List showing $25,000 grant to Dr. Rothschild for work on “Genetic Aspects of Lung Cancer”); Doc. No.2024.02 (letter from Mr. Finnegan, dated June 29, 1981 recommending a $20,000 grant to Dr. Schrauzer for research on the concentration of selenium — a possible anti-carcinogen — in tobacco products). Mr. Finnegan’s involvement appears to have gone well beyond funding recommendations to monitoring ongoing research. See, e.g., Doc. No.2017.07 (letter dated June 16, 1981 from Dr. Blass of the Burke Rehabilitation Center reporting to Mr. Finnegan that “we now have evidence that appropriate doses of nicotine can benefit animals with experimental diseases affecting the brain”);- Doc. No.2034.18 (letter dated April 17, 1979 from Dr. Rothschild to Mr. Finnegan enclosing a draft of a paper for submission to the New England Journal of Medicine and requesting his comments prior to submission; “I would appreciate if you could let us have your comments by the 24th or 25th so that we can send it off before the end of the month.”); Doc. No.2017.06 (internal B & W memorandum to B & W’s general counsel; “At your request, Tim [Finnegan] visited Dean Sullivan. It was a cordial meeting and Tim believes he has persuaded them to take a new thrust with their research. The new thrust will have questionable value but no negative.”). The Kansas City firm of Shook, Hardy & Bacon (“SH & B”) was also active in the “special projects” area. See, e.g., Doc. No.2022.03 (letter dated April 22, 1981 from William Shinn of SH & B recommending funding of Drs. T.D. and Elia Sterling for investigation of “Office Building Syndrome,” which “could be useful with respect to the controversial issue of restriction of smoking in the workplace”); Doc. No.2Q04.01 (letter dated April 15, 1976 from Donald K. Hoel of SH & B stating firm’s view that Dr. Seltzer’s “contributions to the world literature merit continued support as a CTR Special Project.”). Such extensive lawyer involvement is in sharp contrast to the tobacco industry’s announcement at CTR’s inception that its research activities would be overseen by an advisory board of “disinterested scientists.” See Doc. No.1903.03 at 1 (“Tobacco Industry Research Committee, Organization and Policy”; “The Scientific Advisory Board has full responsibility for research policy and programming.”). Many “special projects” recipients.were also awarded funds through “Special Account 4.” See Doc. No.2042.01 (listing as “Special Account Number 4 Recipients” Drs. Rothschild, Seltzer, Sterling and Schrauzer). This account, administered by JM & F, was apparently one of two “special accounts” devoted to such matters as witness preparation and funding of research by expert witnesses. See Doc. No.2010.01 (letter dated Feb. 9, 1973 from SH & B to general counsel of tobacco companies); Doc. No. 1000.01 at 54 (Master Summary for B & W Subjective Document Review). Some of these “special projects” and “special accounts” scientists appear to have had retainer-like relationships with their tobacco industry sponsors. The tobacco companies’ investment in the work of Dr. Carl Seltzer, whose view was that a causal connection between smoking and coronary heart disease had not been established, seems to have been particularly fruitful. For example, in 1979, Dr. Seltzer traveled to Australia and New Zealand, where he related his views on smoking and heart disease to tobacco industry representatives and science writers. See Doc. No.2004.12 (letter dated May 17, 1979 from SH & B to general counsel of tobacco companies pronouncing Dr. Seltzer’s visit a success). After an interview on the Framingham heart study was aired on the MacNeil/Lehrer News Hour, Dr. Seltzer was requested to and did write a letter to Mr. MacNeil taking issue with the interviewee’s presentation of the data linking smoking to heart disease and stating his own position that causation had not been proved. See Doc. No.2004.23 (letter dated Feb. 20, 1984 from B & W general counsel noting request and enclosing copy of Dr. Seltzer’s letter to Mr. MacNeil); Doc. No 2004.25 (Dr. Seltzer’s letter dated January 31, 1984 to Mr. MacNeil); See also Doc. No.2004.21 (letter dated April 4, 1983 recommending “special projects” funding for Dr. Seltzer and listing the preparation of a statement on smoking and heart disease for a congressional subcommittee and meetings with smoking and health researchers among his activities during the previous year). A 1980 letter to the general counsel of the tobacco companies from SH & B discusses the helpfulness of Dr. Sterling, another “special projects” and “special account 4” recipient: Dr. Sterling has continued to be helpful in frequent consultations about the smoking and health controversy. He testified at congressional hearings on public smoking in October, 1978; he has given several technical papers at professional meetings recently; and has prepared a number of manuscripts, some of which have been published. Doc. No.2020.06 at 1-2; see also Doc. No.2022.06 (1981 letter from SH & B to tobacco companies’ general counsel; “As in the past, Dr. Sterling has used the support received from his grant to develop proposals for other projects. The flexibility inherent in the current arrangement has also provided Dr. Sterling with the ability to respond quickly to new scientific developments.”); see also Doc. No.2022.03 at 2 (letter dated April 22, 1981 recommending funding for Dr. Sterling’s research on “Office Building Syndrome” and noting Dr. Sterling’s other activities, including a presentation entitled “Job Discrimination Based on Exposure Considerations and Smoking” at an occupational health meeting). E. New York as a Situs of the Tobacco Industry Conspiracy Multiple events and actors link the tobacco industry conspiracy alleged by the plaintiffs to New York. First, Philip Morris, Inc. and Lorillard Corp., co-defendants and alleged co-conspirators of BAT, have their principal places of business in New York City. See Amended Complaint at ¶¶ 20, 25. Both companies have apparently been headquartered in New York for many years. See, e.g., Doc. No.2017.04 (letter dated Oct. 13, 1980 on Lorillard letterhead bearing a New York City address); Doc. No.1905.01 (letter from CTR dated December 28, 1970 addressed to, among others, Philip Morris, Inc. in New York). The available evidence implicates Loril-lard and Philip Morris in industry activities aimed at promoting the deceptive notion of a smoking and health scientific “controversy.” Both companies have been members of CTR from its inception. See Pis.’ Ex. 1; Doc. Nos.1902.02-03. Over the years, numerous law firm letters seeking approval for CTR “special projects” and reporting on grant recipients’ activities were directed to Arthur J. Stevens and Thomas F. Ahrensfeld general counsel of Lorillard and Philip Morris, respectively. See, e.g., Doc. No.2004.01 (seeking approval of “special project” funding for Dr. Seltzer’s work on “constitution and disease”); Doc. No.2004.05 (letter dated Aug. 7, 1978 recommending that a study of former smokers’ coronary heart disease rates be funded as a “special project”); Doc. No.2022.03 (letter dated April 22, 1981 requesting “special project” funds for study of “Office Building Syndrome”); Doc. No.2004.12 (letter dated May 17, 1979 enclosing newspaper articles on Dr. Seltzer’s trip to Australia and New Zealand to discuss his views on smoking and heart disease); Doc. No.2007.05 (status report dated Oct. 24, 1979 on Dr. Domingo Aviado); Doc. No.2034.09 (letter dated Aug. 4, 1980 enclosing progress report on work of Dr. Rothschild); Doc. No.2009.05 (letter dated Oct. 31, 1978 enclosing copy of Dr. Rothschild’s article entitled “The Bandwagons of Medicine”). These documents support an inference of ongoing,New York activities in furtherance of the alleged conspiracy. CTR and TI, major vehicles for perpetuating the tobacco industry’s stance on smoking and health, were both incorporated in New York. CTR’s offices in New York City generated critical data with which to dispute and deflect attention from the evidence linking smoking to lung cancer, heart disease and other illnesses. H & K, the public relations firm instrumental in the formation of both CTR and TI, was as already discussed deeply involved in the operation of both these organizations. H & K is a New York corporation with its principal place of business in New York. JM & F, the law firm which administered “special account 4” and played an important role in CTR “special projects” is located in New York City. Many “special projects” and “special account 4” funding recommendations were written on JM & F’s New York letterhead. Approvals of funds were transmitted to the firm in New York. See, e.g., Doc. No.2040.02 (letter dated July 9, 1985 from B & W’s general counsel to JM & F in New York approving “special project” funding for Dr. Seltzer); Doc. No.2034.06 (letter dated March 10, 1982 from B & W’s general counsel to JM & F in New York approving “special project” funding for Dr. Rothschild). The activities of CTR, JM & F and H & K further root the alleged tobacco industry conspiracy in New York. F. BAT’s Tortious Conduct in Furtherance of the Conspiracy BAT contends that the conduct complained of in the instant case is that of its subsidiaries and that the plaintiffs have produced no evidence of independent wrongdoing on its part. The plaintiffs argue that BAT itself participated in the tortious conduct that forms the basis of their suit. Specifically, they allege that BAT instructed its subsidiaries to perpetuate a fraudulent smoking and health position and prohibited them from designing and manufacturing a less harmful product even though they had the technical capability to do so. Plaintiffs further allege that BAT promoted the enhancement of the nicotine content of its subsidiaries’ products. 1. Perpetuation of False Smoking and Health Scientific “Controversy” In March 1984, BAT distributed to the heads of its operating groups a memorandum containing the “Group' policy on Smoking and Health Issues,’’ providing that it be given the “widest possible circulation.” See Pis.’ Ex. 40. Entitled “Legal Considerations on Smoking & Health Policy,” it stated BAT’s position that there was a “genuine scientific controversy” respecting the adverse health effects of smoking, imposed this stance on all subsidiaries, and directed them to consult their legal departments or BAT if “in doubt.” The memorandum read: This note summarizes the policy of the BAT Industries Group in relation to smoking & health issues. Although primarily the concern of the Group’s tobacco interests, it is important for senior executives in other parts of the Group to be aware of the stance taken. This is because the spread of ‘strict’ or ‘no fault’ liability in the USA, Europe and other industrialized parts of the world may in the future result in the attribution to the Group’s tobacco companies of statements made or decisions taken by other BAT Industries subsidiaries. For this reason it is essential that statements about cigarette smoking or the smoking and health issue generally must be factually and scientifically correct. The issue is controversial and there is no case for either condemning or encouraging smoking. It may be responsible for the alleged smoking related diseases or it may not. No conclusive scientific evidence has been advanced and the statistical association does not amount to proof of cause and effect. Thus a genuine scientific controversy exists. The Group’s position is that causation has not been proved and that we do not ourselves make health claims for tobacco products. Consequently the Group cannot participate in any campaigns stressing the benefits of a moderate level of cigarette consumption, of cigarettes with low tar and/or nicotine deliveries or any other positive aspects of smoking except those concerned with the dissemination of objective information and the right of individuals to choose whether or not they smoke. However, the Group encourages constructive dialogue with the authorities, the dissemination of information about the smoking and health controversy and research and new product development. Id. This policy was binding on all BAT Group companies: Non-tobacco companies in the Group must particularly beware of any commercial activities or conduct which could be construed as discrimination against tobacco or tobacco manufacturers (whether or not involving companies within the Group), since this could adversely affect the position of Brown & Williamson in current U.S. product liability litigation in the US. If in doubt, companies should not hesitate to consult their in house counsel, or BAT Industries Legal Department, who have up-to-date information on the legal situation affecting the tobacco companies. Id. (emphasis added). The evidence in the record indicates that at the time this policy statement denying proof of tobacco-caused disease was issued, BAT had long known that it was highly probable that smoking did cause disease. The same year BAT was formed, Dr. Sidney J. Green, head of Research and Development at BATCo stated his opinion that “it may ... be concluded that for certain groups of people smoking causes the incidence of certain diseases to be higher than it would otherwise be.” Pis.’ Ex. 28 at 4. Two years later, in 1978, Dr. Green wrote: “The statement [is] made that ‘studies have shown that lung-cancer death rate is almost directly related to the number of cigarettes consumed’ .... [That] statement is clearly true .... ” Pis. Ex. 355. BAT Group scientists attending a research conference that same year apparently agreed with Dr. Green’s assessment. According to the conference minutes, they concluded: There has been no change in the scientific basis for the case against smoking. Additional evidence of smoke-dose related incidence of some diseases associated with smoking has been published. But generally this has long ceased to be an area for scientific controversy. Pis.’ Ex. 129 at 1. In “Smoking, Associated Diseases and Causality,” an undated document written sometime after the issuance of the 1979 Surgeon General’s report, to which it refers, Dr. Green described the tobacco industry as having “publicly retreated behind impossible, perhaps ridiculous, demands for what in their public relations is called ‘scientific proof.’ ” Pis.’ Ex. 406 at 1. He further stated: “The position of the industry might call for some sympathy, on the other hand there is a great deal more against smoking than the epidemiological evidence.” Id. at 1-2. Dr. Green then provided the following assessment of the tobacco industry’s position: [T]he argument that' since there are heavy smokers who do not have lung cancer (and, of course, the majority do not) and because there are some rare cases of nonsmokers who do have lung cancer then smoking does not cause lung cancer, is totally fallacious. From all the evidence that smoking is a factor in multiple correlations and is strongly associated with some diseases then after meticulous experimentation by selecting otherwise comparable populations the claim that smoking causes some diseases (i.e. causes the incidence of the diseases in the population to increase) may well be proven. If it can be reliably predicted that if smoking is decreased in a population that the incidence of this or that disease will be decreased than the decrease demonstrates the causal relationship. Thus for male smokers in the U.K., the U.S.A., and several other countries from the epidemiological evidence alone it can be concluded that smoking cigarettes causes lung cancer and some other respiratory diseases. Id. at 4-5. Dr. Green, as BATCo’s head of Research and Development was technically not a BAT employee. Thus, in the absence of an agency relationship or a basis for piercing the corporate veil, his actions and those of other BATCo scientists may arguably not be attributed to BAT. Nevertheless, the knowledge of BATCo and its research and development staff is properly imputed to BAT. BATCo conducted Group tobacco research for its hundreds of subsidiaries for decades before its 1976 acquisition by BAT. See, e.g., Pis.’ Ex. 10 (British-American Tobacco Company, Ltd., Biological Testing: Short-Term Hy-perplasia Test, dated June 24, 1966); Pis.’ Ex. 113 (Preparation and Properties of Nicotine Analogues, Group Research and Development Centre, dated November 9, 1972); Pis.’ Ex. 115 (Further Studies on the Effect of Nicotine on Human Physiological Response, Group Research & Development Centre, dated June 5, 1973); Pis.’ Ex. 2 (Final Report on Project Hippo I, dated January, 1962); Pis.’ Ex. 4 (Final Report on Project Hippo II, dated March 1, 1963). Its central research role continued after 1976. See Pis.’ Ex. 126 (Some Benefits of Smoking, Group Research and Development Centre, dated January 26, 1977); Pis.’ Ex. 127 (A Comparison of the Tumorgenic Activities of Janus Condensates B0, B2 and B4, Group Research & Development Centre, dated January 24, 1977); Pis.’ Ex. 132 (Preparation and Properties of Nicotine Analogues-Part III, Group Research & Development Centre, dated June 20, 1979); Pis.’ Ex. 135 (Nicotine Studies: A Second Report. Estimation of Whole Body Nicotine Dose by Urinary Nicotine and Cotinine Measurement, GR & DC, dated May 28, 1981); See Pis.’ Ex. 339 (draft of memorandum entitled “Tobacco Research in BAT Industries,” dated March 4, 1985) (BATCo to coordinate fundamental research and ensure a flow of information within' BAT Group). The fact that during the first few years of BAT’s existence, its Board and the BATCo Board were essentially identical, see Pis.’ Ex. 64, and that BAT’s first two Chairmen were former BATCo Chairmen, creates an especially strong basis for ascribing to BAT BATCo’s knowledge that smoking causes human disease. This knowledge was based on research dating back to the early 1960’s. By 1962, tobacco-smoke condensate painted onto the skin of mice had been shown to be carcinogenic, and respiratory irritation was being hypothesized as a potential cause of both chronic bronchitis and cancer in people. See Pis.’ Ex. 104 (Report on 1962 Southampton Research Conference) at 7, 10, 22. That year, the Royal College of Physicians issued its report linking cigarette smoking to lung cancer, bronchitis and heart disease. In response, the British tobacco industry, through its joint research organization, the Tobacco Manufacturers’ Standing Committee, set up a laboratory in Harrogate, England. Harrogate was designed for large scale biological research on the toxicity of cigarette smoke, with a focus on mouse skin painting experiments and studies on the irritation of the respiratory passages. During the 1960’s BATCo’s in-house research program was designed to complement and capitalize on the biological research being done at Harrogate. See id. at 24. Its research and development laboratories, located in Southampton, England, focused on the chemistry and physics of tobacco smoke, that is to say, on the isolation, enhancement and suppression of individual smoke components. Efforts were largely directed towards the design of a “safe” cigarette. See Doc. No. 1109.01 at 1 (file note of B & W scientist on BATCo’s 1967 Southampton Research). In addition, a number of BAT research projects were performed under contract at other laboratories. See, e.g., Pis.’ Exs. 2, 4 (Final Reports on nicotine studies Projects Hippo I and II); Pis.’ Ex. 108 (Project JANUS Quarterly and Annual Reports 1969-1971) (mouse skin-painting experiments). At annual research conferences during the 1960’s, BAT Group scientists discussed the possibility of producing a “cigarette with lower biological activity on mouse skin painting.” Doc. No. 1165.02 at 3 (minutes of 1967 Montreal Group Research and Development Conference); see also Pis.’ Ex. 106 at 1-2 (minutes of 1968 Hilton Head Group Research and Development Conference; “There was general agreement that a cigarette with such reduced mouse-skin biological activity should be produced.”). Also considered was the ma-nipulability of the “biological activity” of cigarettes. See Pis.’ Ex. 1 at 1 (“It is clear that a number of features of cigarettes can modify the biological activity of smoke condensate. These include the incorporation of [different parts of the tobacco leaf], the form of the smoking vehicle ... the type of tobacco, the presence of additives and the volume of puff taken in smoking the cigarette.”). Conference participants distinguished between “Health-image (health reassurance)” cigarettes and “Health-orientated (minimal biological activity)” ones. Id. at 2. Scientists attending BATCo’s 1969 research conference concluded: [A]t the present time the Industry ha[s] to recognize the possibility of distinct adverse health reactions to smoke aerosol: (a) Lung Cancer (b) Emphysema and bronchitis and present and future bioassay test could usefully be classified according to their applicability to one or other or to both. Pis.’ Ex. 107 at 3 (Minutes of 1969 Kron-berg Research Conference). BAT Group efforts to make a less harmful cigarette continued throughout the 1970’s. See, e.g., Pis.’ Ex. 117 (Notes of 1974 Group Research and Development Conference in Duck Key, Florida); Pis.’ Ex. 112 (Notes on 1972 Group Research and Development Conference in Chel-wood). By the mid-1970’s, a safe product appeared to be more of a long-range goal secondary to the immediate objectives of meeting regulatory requirements and promoting a positive public image. See Pis.’ Ex. 121 at 5 (Notes of 1975 Group Research and Development Conference in Merano, Italy) (“As a longer range, and perhaps never ending, objective R & D has a goal of developing products that respond positively to scientific information having relevance to smoking and health.”). Even so, BAT Group scientists seem to have viewed production of a “safe” cigarette as feasible. See Pis.’ Ex. 129 at 1 (Notes of 1978 Research and Development Conference in Sydney, Australia) (“Cigarettes acceptable on all counts can probably be achieved by research and indeed, may in fact be available.”). At the close of the 1970’s the biological testing program at Southampton was spending £910,000 a year on its biological testing program. See Pis.’ Ex. 138 at 10 (Notes of Research and Development conference in London 1979). This represented a significant proportion of BAT’s total expenditures in this area. See id. Despite its knowledge to the contrary, almost a decade after it first issued its “Legal Considerations” memorandum, BAT continued to adhere to the position that a causal link between smoking and disease had not been established. In December 1993, the 1984 memorandum was circulated anew, along with BAT’s 1993 Statement of Business Conduct (“SBC”). See Pis.’ Ex. 66. In addition, a “Guidance Note” for the implementation of the SBC set forth — under the subheading “Smoking and Health Policy” — -“the considered view of the [BAT] Group that ... scientific causation between smoking and diseases allegedly related to smoking has not been established.” Id. at 14. The binding effect of BAT’s official “Smoking and Health” line on its subsidiaries is revealed by the record. A cover letter from BAT’s CEO accompanying the SBC states: B.A.T. Industries has' for many years maintained policies and standards covering various aspects of business conduct and has required their adoption by all B.A.T. Group companies. In order to bring together the underlying principles, the B.A.T. Industries Board has adopted a Statement of Business Conduct which is of general application and which is enclosed. We will also be issuing some guidance in the form of Guidance Notes on specific issues where questions have sometimes arisen in the past. The Statement and the Guidance Notes clearly reaffirm where the B.A.T. Group stands -on key issues .... You will see that the. Board of BAT Industries has authorized a simple system of assurance of compliance throughout the Group which builds upon current practice. I believe that the Statement, and Guidance Notes will be of use to employees in their day to day work .... Pis.’ Ex. 290 (emphasis added). The SBC provides that it “applies to all directors, officers and employees of B.A.T. Industries, p.l.c. and its principles apply to all directors, officers and employees of every company within the B.A.T. Industries Group of companies.” Pis.’ Ex. 66 at 1. The policy was enforceable by discipline against subsidiary employees. BAT did not conceal its warning “that any exception to or breach of the principles encompassed by this Statement will usually be dealt with by immediate management disciplinary action (which may include dismissal in an' appropriate case ....).” Id. To help give effect to the uniform BAT stance on the healthfulness of its product, a consumer helpline manual was distributed to BAT Group tobacco companies for use in answering consumers’ questions about smoking and health. It instructed: All companies considering introduction of a consumer helpline must contact Smoking Issues Department, Millbank for advice on how to handle questions relating to the product and to smoking and health. “Type A” markets assume a high public awareness of smoking and health issues and a strong possibility that users of the helplines will ask questions relating to smoking or product issues. In “Type A” markets, telephone operators may be dealing regularly with people who are asking questions about tobacco or health. Although a more detailed Q & A document is provided for these operators, in all circumstances the operators should receive background training .... This training must be provided in collaboration with the Smoking Issues Department, Mill-bank .... Pis.’ Ex. 323. Under the heading “Questions About Smoking and Health,” the following sample questions and answers, intended to reassure “Type A” callers about the lack of evidence of adverse health consequences and addicting qualities, were provided: Knowing how many people die every year from causes related to smoking, do you consider that it is “common sense” to continue to launch into the market products that poison the consumer? I would like to clarify that it is not scientifically feasible to attribute specific numbers of deaths to cigarettes. We do not understand the mechanisms underlying the diseases claimed to be associated with smoking, and so neither can we fully understand the causes. Do you think that tobacco is a drug? We believe that it is not, which is in agreement with the legislation on such matters in force throughout the world. There are many differences between cigarettes and drugs. For example, cigarettes do not cause people to become intoxicated, like so-called “hard” drugs do. If this is not so, what can you say about the addiction produced by cigarettes? The mere fact that people say it is difficult to stop doing something, such as stopping smoking, does not mean that behavior constitutes an addiction. Millions of smokers all over the world have stopped smoking voluntarily without any help at all. What is nicotine? It is a substance that occurs naturally in the tobacco plant. Id. Numerous meetings and conferences among BAT and its subsidiaries provided a context for the implementation of BAT’s “Smoking and Health” policy. The agendas and meeting minutes of BAT’s Tobacco Strategy Review Team (“TSRT”) are illustrative. Formed in 1984 and chaired by BAT’s Chairman, the TSRT’s principal aim was “to ensure that the Group mounts a coherent strategic thrust in Tobacco, that there is effective technical and marketing co-operation between the Group’s Tobacco businesses and that there is a unified approach on Smoking Issues.” Pis.’ Ex. 271. Initially, the TSRT had been composed of selected members of the BAT Board. In 1988, however, its membership was expanded to include the heads of tobacco operations in each of BAT’s Operating Groups, including that in the United States. See Pis.’ Ex. 282. The record reflects that “Smoking Issues,” a euphemism for matters relating to the public’s perception of the health consequences of smoking, were a regular agenda item at TSRT meetings. See, e.g., Pis.’ Ex. 92 at ¶ 21 (minutes of March 1989 TSRT meeting; presentation of collection of “abstracts of scientific papers demonstrating the anomalies and inconsistencies in the published work on epidemiology, relating to the alleged effects of smoking and health”); Pis.’ Ex. 94 at ¶ 15 (minutes of February 1990 TSRT Meeting; discussing upcoming availability and likely annual review and update of two new “Smoking Issues Documents,” “Smoking: Habit or Addiction?” and “Smoking: The Scientific Controversy”); Pis.’ Ex. 96 at ¶ 6 (minutes of May, 1990 TSRT meeting; Chairman noted U.K. Sunday Times article critical of the apparent strength of BAT cigarettes sold in certain African countries and stressed importance of being able to defend sale of cigarettes in Africa with higher tar levels than those sold in Europe and North America). “Smoking Issues” were also a recurring topic at the annual Chairman’s Advisory Conferences (“CAC’s”) gatherings hosted by BAT’s Chairman and attended by the top brass of its tobacco operating groups from the United States and elsewhere. See, e.g., Pis.’ Ex. 303 at 5-12 (minutes of May, 1981 CAC in Austria); Pis. Ex. 304 at 7-10 (minutes of March 1983 CAC in Brazil). To bolster BAT’s position on smoking and health, BATCo was assigned the task of compiling a “Smoking Issues Compendium.” See Pis.’ Ex. 271 at 1 (Note on Tobacco Strategy Review Team). The purpose of this project was to attack the mounting epidemiological evidence that smoking caused disease by “illustrating] the range of material which supported the controversy on smoking issues.” Pis.’ Ex. 327 at Í (Minutes of December 1984 Meeting at BAT on Compendium of Epidemiological Studies). The record reflects the ongoing involvement of Pat Sheehy, BAT’s Chairman from 1982 through' 1995 (and prior to that Chairman of BATCo), in the development and dissemination' of the Compendium as well asp in the perpetua-' tion of the “debate” on causation. A 1986 “Smoking and Health” memorandum from Mr. Sheehy to “All No. l’s of Tobacco Companies” began: “You will know that I believe we have a strong case,, both'as an industry and as a company, in refuting the highly emotive claims made by the anti-smoking lobby regarding the dangers of smoking. I have a continuing active involvement in this debate .... ” See Pis.’ Ex. 419. Attached was a paper entitled “Can Epidemiology Become a Rigorous Science? How Big is The Big Kill?,” refuting United Kingdom Health Education Council findings on the number of deaths attributable to smoking. Recipients of the paper were encouraged to use it “in discussions with the authorities and in a more general public relations context in showing that although the alternative view may not be as attractive to the media, the extreme claims made by our opponents can and should be challenged.” Id.; see also Pis.’ Ex. 326 (note of Jan. 27, 1984 on behalf of Mr. Sheehy requesting a meeting to discuss the Compendium); Pis.’ Ex. 327; Pis.’ Ex. 91 at ¶ 7 (minutes of October 1988 TSRT meeting; Mr. Sheehy emphasized the importance of maintaining pressure on smoking -issues and stressed, the need to have the Compendium translated into German, Spanish and Portuguese); Pis.’ Ex. 92 at ¶ 21 (minutes of March 1989 TSRT meeting; Mr. Sheehy instructed companies to start using the C