The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge
Before the court is Defendants' motion to dismiss Plaintiffs' complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, pursuant to Rule 12(b)(7). The parties have briefed the
issues, and the motion is ripe for disposition.
Plaintiffs' complaint, filed on January 10, 2002, alleges the following:
A. Introduction and Parties
Plaintiffs challenge certain provisions of the Master Settlement
Agreement (hereinafter the "MSA") that the four largest United States
tobacco companies (the "Majors") entered into with forty six states on
November 23, 1998. Plaintiffs allege that the MSA violates Section 1 of
the Sherman Act, 15 U.S.C. § 1, as well as the Commerce and Compact
Clauses of the United States Constitution.
Plaintiffs are all Pennsylvania residents and cigarette consumers.
Defendant Michael Fisher is the Attorney General of Pennsylvania, and
Defendant Larry Williams is the Secretary of the Pennsylvania Department
of Revenue. Defendant Fisher was one of eight state Attorneys General
that negotiated the MSA, and his office receives the payments from the
settlement. Defendant Williams collects the revenues from the
settlement. The Masters — Philip Morris, Inc., R.J. Reynolds
Tobacco Company, Brown & Williamson Tobacco Corp., and Lorillard Tobacco
Company — are not named as Defendants in the instant suit because
the Third Circuit has held that the Noerr-Pennington immunity doctrine
shields them from liability from suit. (Compl. at ¶ 10 (citing A.D.
Bedell Wholesale Co. v. Philip Morris, Inc., 263 F.3d 239 (3d Cir.
The relevant market for Plaintiffs' antitrust action is the sale of
tobacco products by cigarette manufacturers and importers of cigarettes
in the United States. This market is highly concentrated. "For decades,
the market consisted of six major manufacturers" which included the
Masters, American Tobacco Company, and Vector Group. (Compl. at ¶
12.) When the MSA was negotiated in 1998, the Majors collectively
accounted for more than 98% of sales in the domestic market. In the first
six months of 2001, the Majors had in creased prices for cigarettes by
60%, and had a combined market share of 93.6%. The rest of the market is
comprised of small manufacturers and importers.
Domestic cigarette consumption has not declined since the MSA was
entered into. In 1999, there was a 10% decline in the shipments of
cigarettes, but in 2000, shipments increased. At the manufacturers'
level, industry revenues have increased from $21 billion in 1997 to $45
billion in 2000.
The MSA was negotiated as a result of a series of lawsuits brought or
threatened by the states against the Majors and other companies and
organizations in the tobacco industry. The states sought to recover
Medicaid funds expended in treating tobacco related diseases.
Pennsylvania filed suit against the Majors in April 1997. Pennsylvania
v. Philip Morris, Inc., No. 9704-2443 (Ct. Com. Pleas, Phila. County,
April 1997). The suit was settled as part of the MSA.
Pursuant to the MSA, the Majors agreed to pay the settling states
initial and annual payments totaling $206 billion over the first
twenty-five years and $9 billion annually after that. The MSA also
includes marketing restrictions, regulations of lobbying, and
"restrictions on association." (Compl. at ¶ 18.) These restrictions
have further entrenched the Majors' market share.
The Majors required that the MSA include structures so that the Majors
could fund transfers of billions of dollars to the states by having
wholesalers and consumers pay artificially high prices for cigarettes.
The prices charged by the Majors since the MSA was entered into have
generated revenue far in excess of what is needed to fund the MSA end
have enabled the Majors to spend record amounts on advertising.
D. The Output Cartel Created by the MSA
Certain provisions of the MSA restrict the output of the Majors'
competitors and prevent the competitors from gaining market share. The
MSA was designed to destroy the free market for cigarettes so that
consumers would not be able to choose lower priced products of companies
that did not raise prices to fund the MSA. The state Attorneys General
crafted the MSA to save the Majors and "ensure a perpetual shared and
unregulated monopoly for [the Majors]." (Compl. at ¶ 20.)
The MSA prevents Subsequent Participating Manufacturers ("SPMs") and
Non-Participating Manufacturers ("NPMs") of cigarettes from expanding
their market share and prevents new competitors from entering the
market. The MSA coerces smaller companies to join the MSA, and furthers a
tradition of anti-competitive conduct. The MSA displaces competition in
the cigarette industry in the following ways: (1) it contains discount
sales by small competitors; (2) it prevents the entry of new competitors
at the discount end of the market; (3) it prevents significant price
competition among the Majors; and (4) it permits
significant price increases through tacit agreements to raise prices.
The MSA has two provisions that stifle price competition. First, it
requires each state to enact a "Qualifying Statute" that "effectively and
fully neutralizes the cost disadvantages that the Participating
Manufacturers experience vis-a-vis Non-Participating Manufacturers within
such settling State. . . ." (Id. at ¶ 24 (citing MSA §
IX(d)(2)(E).). The Qualifying Statutes require NPMs to pay "massive
amounts" into an Escrow Fund for the payment of potential damages in
future health care liability suits. A $50 million "enforcement" fund was
established to finance enforcement of the Qualifying Statutes and the
Pennsylvania's Qualifying Statute is called the "Tobacco Settlement
Agreement Act," ("TSAA"), 35 Pa. Cons. Stat. Ann. §§ 5672-5674. The
TSAA requires that NPMs either become an SPM of the MSA or make payments
into escrow. In 2000, payments were $2.09 per carton of cigarettes,
increasing to $3.77 per carton in 2007. If the NPMs' payments under the
Qualifying Statute are higher than they would be as an SPM of the MSA,
the excess is returned to the NPM.
The option to remain an NPM is prohibitively expensive, and "the only
option that permitted an NPM to remain in business without violating the
Qualifying Statutes was to join the MSA and become an SPM." (Compl. at
¶ 26.) Thus, small manufacturers became SPMs, but are restricted from
gaining market share by the "Renegade Clause" in the MSA. This provision
states: "A[n] [SPM] shall have payment obligations under this Agreement
only in the event that its Market Share in any calendar year exceeds the
greater of (1) its 1998 Market Share or (2) 125 percent of its 1997
Market Share." (Compl. at ¶ 27 (citing MSA § IX(i).) This
provision creates disincentives for SPMs to increase production and market
The MSA also imposes barriers against new entrants in the market.
Specifically, it provides that the 1997 market share for new entrants will
be 0% for determining the market share cap. (Id. at ¶ 29 (citing MSA
§ IX(i)(4).) New entrants must contribute settlement payments or pay
penalties under the Qualifying Statutes.
The MSA also establishes penalties for the encroachment of market
shares among the Majors. (Id. at ¶ 33 ...