Going toe to toe with Big Tobacco

"Once upon a time, a lawyer had to choose between the excitement, challenge and financial rewards of a big-city practice and the lifestyle benefits of a smaller town.But today, it's possible to have both, according to Jon Ferguson, managing partner of the what is called the Seattle branch of an international law firm. The office isn't in a Seattle high-rise, but on Bainbridge Island's waterfront.Our principal asset is our database, Ferguson said. Electronic connectivity allows us to send documents back and forth on the Internet, so it doesn't matter where we are.Ferguson and Jeffrey Bean, along with paralegal Leslie Rothbaum, are the Northwest outpost of Chandler, Franklin & O'Bryan, a Virginia-based firm with affiliated offices in Washington D.C., Maryland, Los Angeles and in 11 countries in South and Central America. The firm represents claimants in injury cases, both personal and commercial."

“Once upon a time, a lawyer had to choose between the excitement, challenge and financial rewards of a big-city practice and the lifestyle benefits of a smaller town.But today, it’s possible to have both, according to Jon Ferguson, managing partner of the what is called the Seattle branch of an international law firm. The office isn’t in a Seattle high-rise, but on Bainbridge Island’s waterfront.Our principal asset is our database, Ferguson said. Electronic connectivity allows us to send documents back and forth on the Internet, so it doesn’t matter where we are.Ferguson and Jeffrey Bean, along with paralegal Leslie Rothbaum, are the Northwest outpost of Chandler, Franklin & O’Bryan, a Virginia-based firm with affiliated offices in Washington D.C., Maryland, Los Angeles and in 11 countries in South and Central America. The firm represents claimants in injury cases, both personal and commercial.Ferguson, a 1974 graduate of the University of Washington law school, spent most of his career with the Washington Attorney General’s office. The 15-year island resident co-ordinated the state’s suit against the tobacco companies, and was a pivotal figure in the $204-billion settlement between the tobacco companies and the states, of which Washington is to receive $4.4 billion.Our theory of liability was a little different than had been used before, Ferguson said. Our claim was that the tobacco companies conspired not to compete on product quality. They agreed not to do certain kinds of research. So our case was an antitrust case.While acknowledging the importance of former tobacco company executive Jeffrey Wigand in the Mississippi litigation that cracked Big Tobacco’s wall of silence, Ferguson said the more important information came from another still-unidentified source.Stan Glantz, a medical-school professor at the University of California at San Francisco, received boxes of documents from a source known only as Mr. Butts, Ferguson said. And those were the documents that undid the tobacco companies.The documents showed that they knew about the addictive properties of nicotine long ago, well before the chief executives raised their right hands and told Congress that they did not believe nicotine was addicting, Ferguson said. And the documents also showed that the companies conspired not to do research that could have led to a safer cigarette.At that point, the tobacco companies had settled with the states of Mississippi, Florida and Texas. But the global settlement negotiated in the wake of those cases had evaporated when Congress rejected the plan. So Washington was on its own against the industry.The Washington case went to trial before a state-court jury in Seattle in September 1998. The state argued that if the companies had competed on product quality, they would have done so by claiming that the competitors’ products were less safe, thereby alerting the public to the dangers of smoking years before the government-led campaign.We looked at the decline in smoking over the past 20 years, Ferguson said, and argued that if the companies had really been competing, the decline would have started occurring many years earlier.The state argued that it should recover the cost of treating the smoking-related illnesses that would have been avoided by genuinely competitive marketing.While the claim may sound elaborate, the tobacco companies were concerned. Ten weeks into the trial, at what Ferguson estimated was roughly the halfway point, the tobacco companies wanted to discuss a settlement.In the course of our case, contacts were set up between Herb Wachtell, the tobacco companies’ lead lawyer, and (Washington attorney general) Chris Gregoire, Ferguson said. When they started talking, they brought more people in. Eventually, every state joined the talks and the settlement.Shortly thereafter, Ferguson realized that he had accomplished everything he could at the attorney general’s office, and he started looking around for private-practice opportunities.Chandler, Franklin & O’Bryan wanted tobacco expertise, and I was the only one available that wasn’t already working for another plaintiffs’ firm, Ferguson said. So I accepted the offer, but I didn’t want to move to Virginia.Ferguson started looking for office space in downtown Seattle, but was amazed by the rents, and by how the landlords treated people. So the firm took office space on Parfitt Way, and moved into its present office overlooking Eagle Harbor in January.Ferguson continues to concentrate on tobacco cases, including a class-action suit on behalf of Argentinean labor unions filed in Washington, D.C. and a price-fixing suit against the manufacturers pending in Atlanta.The onslaught of litigation, including Friday’s $145 billion punitive-damage award in Florida, won’t bankrupt the tobacco companies, Ferguson believes. What will happen, he predicts, is that the companies will raise prices substantially to pay the judgments, which, in turn will reduce consumption. The tobacco companies have done a phenomenal job of externalizing the social costs of their products, he said. The litigation is forcing the companies to internalize those costs – to build them into their pricing structure.The net result will be a huge squeeze on industry profits.At some point, I think they will simply decide that making cigarettes is not the business they want to be in, he said.What makes the tobacco suits possible, Ferguson said, is the database collected during the state-court trial.A provision in the settlement requires those documents to be made public, he said. You can find most of these documents on the Internet. But with 25 million of them, you have to know what you’re looking for.The space efficiencies made possible by computerization allowed Ferguson to locate on the island. He shows visitors his file room – a set of computer disks barely a foot long.With such compact and readily portable files, and with a practice that does not depend on frequent client contact, there is no real reason not to be on Bainbridge, Ferguson said.We can get to the courthouses in Seattle and Port Orchard pretty easily, he said. And I can get to the airport from here.”