Jesse BROWN, Rev., on behalf of himself and all members of the Uptown Coalition for Tobacco Control and Health; Aaron Eleazer; Pansy Smith; Ellen Irving; National Association of African Americans for Positive Imagery, Inc., Appellants, v. PHILIP MORRIS INC.; Brown and Williamson Tobacco Corporation; B.A.T. Industries; Lorillard Tobacco Company Inc.; The American Tobacco Company; United States Tobacco Company; The Council for Tobacco Research U.S.A., Inc.; The Tobacco Institute, Inc.; Smokeless Tobacco Council, Inc.; Hill & Knowlton, Inc.; RJR Nabisco Holdings Corp.; R.J. Reynolds Tobacco Company; Liggett Group Inc.; Liggett & Myers Tobacco Company.
No. 99-1931.
United States Court of Appeals, Third Circuit.
Argued Jan. 19, 2001. Filed May 17, 2001.
250 F.3d 789
The Supreme Court in Flores-Ortega vacated the judgment of the court of appeals because “the findings below suggest[ed] that there may have been some conversation between [counsel] and respondent about an appeal.” Id. at 487, 120 S.Ct. 1029. The record here contains no such suggestion, and in fact contains evidence to the contrary. Further, Flores-Ortega specifically stated that evidence that a defendant sufficiently demonstrated to counsel his interest in an appeal, when taken alone, is “insufficient to establish that, had the defendant received reasonable advice from counsel about the appeal, he would have instructed his counsel to file an appeal.” Id. at 486, 120 S.Ct. 1029. Therefore, Sarroca‘s claim still fails on the prejudice step, even if he could show that he expressed some interest in appealing, because, in the absence of “any other substantial reasons to believe that he would have appealed,” id., the lack of a nonfrivolous ground for appeal shows that a reasonable person would not have appealed.
III. CONCLUSION
For the reasons set forth above, the judgment of the district court is AFFIRMED.
Bruce M. Ludwig (Argued), William R. Adams, Jr. (Argued), Sheller, Ludwig & Badey, Black & Adams, Philadelphia, PA, Attorneys for Appellants.
Jeffrey G. Weil (Argued), Michael F.R. Harris, Matthew S. Miner, Alan C. Promer, Dechert, Price & Rhoads, Philadelphia, PA, Attorneys for Philip Morris Incorporated.
Christopher S. D‘Angelo, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Attorneys for B.A.T. Industries.
Howard M. Klein, William J. O‘Brien, Conrad, O‘Brien, Gellman & Rohn, Philadelphia, PA, Attorneys for Lorillard Tobacco Company.
Stephen J. Imbriglia, Hecker, Brown, Sherry & Johnson, Philadelphia, PA, Attorneys for U.S. Tobacco Company.
Patrick W. Kittredge, Kittredge, Donley, Elson, Fullem & Embrick, Philadelphia, PA, Attorneys for the Council for Tobacco Research, U.S.A., Inc.
Wilbur L. Kipnes, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, Attorneys for Smokeless Tobacco Council, Inc.
Richard L. Kremnick, Blank, Rome, Comisky & McCauley, Philadelphia, PA, Attorneys for Hill & Knowlton, Inc.
Daniel F. Kolb, Anne B. Howe, Davis, Polk & Wardwell, New York, NY, Attorneys for RJR Nabisco Holdings.
Edward C. Schmidt, Jones, Day, Reavis & Pogue, Pittsburgh, PA, Morton F. Daller, Daller, Greenberg & Dietrich, Fort
J. Kurt Straub, Jonathan W. Hugg, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, PA, Attorneys for Liggett Group, Inc., and Liggett & Myers Tobacco.
Before: ROTH and BARRY, Circuit Judges, and SHADUR,* District Judge.
OPINION OF THE COURT
ROTH, Circuit Judge:
Mentholated tobacco products apparently pose greater health risks than non-mentholated ones. Plaintiffs, a group of African-Americans, brought a civil rights action, contending that, with this knowledge, defendant tobacco companies have targeted the marketing of mentholated tobacco products at African-Americans.
Plaintiffs, who designate themselves the “Black Smokers,” are the Rev. Jesse Brown, the Uptown Coalition for Tobacco Control and Healing, Aaron Eleazer, Pansy Smith, Ellen Irving, and the National Association of African Americans for Positive Imagery, Inc. They brought this civil rights action on behalf of a class of all living Black Americans who have, since 1954, purchased or consumed mentholated tobacco products. They named as defendants the tobacco companies: Philip Morris, Inc., R.J. Reynolds Tobacco Company, RJR Nabisco Holdings Corporation, Brown & Williamson Tobacco Corporation, B.A.T. Industries, the American Tobacco Company, Lorillard Tobacco Company, Inc., Liggett & Myers Tobacco Company, Liggett Group Inc. and United States Tobacco Company; the non-profit organizations supported by the tobacco-industry: the Tobacco Institute, Inc., the Council for
The District Court granted defendants’ motion to dismiss for failure to state a claim. We will affirm that decision. We agree with the District Court that Black Smokers’ allegations of racially targeted marketing of mentholated tobacco products cannot, in the absence of any disparity between the products sold to African-Americans and the products sold to others, constitute a deprivation of contract or property rights actionable under
I. FACTS
In their Second Amended Complaint, Black Smokers allege that the defendants have unlawfully targeted African-Americans with billboard, magazine, and other types of advertising in order to promote the sale to and consumption by African-Americans of various mentholated tobacco products. It is not disputed that the tobacco industry has designed certain mentholol cigarettes specifically to appeal to African-American consumers, including R.J. Reynolds’ “Uptown,” a high tar, high nicotine menthol cigarette.1 Black Smokers contend, and defendants do not dispute, that medical research has demonstrated that mentholated tobacco products pose greater health risks than non-mentholated ones, including an increased incidence of cancers of the lung and pharynx. It is not disputed that, although African-Americans account for only 10.3% of the U.S. population, they account for a significantly greater share of menthol cigarette smokers. Black Smokers cite reports fixing the percentage of African-American menthol smokers at, variously, 31%, 61.5% and 66%. Apparently relying upon the 31% figure, defendants claim that a significant majority (69%) of menthol cigarette smokers are not African-Americans and that Black Smokers admit that fact. In addition to the allegation of racially targeted marketing, Black Smokers also charge defendants with “intentional racial discrimination” and a “conspiracy of deception and
Black Smokers also accuse defendants of “a massive conspiracy to mislead the Black American public regarding the safety of menthol tobacco products.” Black Smokers identify three courses of conduct underlying the purported conspiracy: “(1) acting in concert to represent falsely that their menthol tobacco products are safe for African Americans to use; (2) engaging in a concerted campaign to saturate the African American community with dangerous, defective and hazardous tobacco products, which Tobacco Industry knew caused harm, in violation of the civil and constitutional rights of African Americans; and (3) misrepresenting, suppressing, distorting, and confusing the truth about the health dangers of mentholated tobacco products.” Notwithstanding these allegations, Black Smokers apparently concede in their opening appellate brief that African-Americans demonstrated their preference for menthol cigarettes before defendants initiated targeted advertising. In their reply brief and at oral argument, however, Black Smokers denied making such a concession and asserted that defendants created the African-American preference for menthol cigarettes. Black Smokers did not allege in their opening appellate brief that defendants interfere with the right of African Americans to purchase non-menthol cigarettes or that menthol cigarettes are not marketed and sold to persons other than African-Americans. However, in their reply brief and at oral argument, Black Smokers made the surprising statement that they “do not concede that Black Americans are free to purchase non-menthol cigarettes.”
Black Smokers do not contend that the menthol cigarettes marketed and sold to African-Americans are themselves different from those sold to whites or other persons. Additionally, Black Smokers do not aver that African-Americans receive information about menthol cigarettes that differs in any respect from the information provided to others. However, in their reply brief and at oral argument, Black Smokers made another surprising claim—that while defendants suggest to African-Americans in advertising that menthol cigarettes are healthier than non-menthol cigarettes, are of high quality, enhance the smoker‘s image, and are glamorous, prestigious and socially acceptable, “none of these sales messages or terms are targeted to white consumers.” Black Smokers agree, however, that defendants have employed targeted marketing (e.g., advertising using African-American models and athletes) to sell non-menthol cigarettes such as Camel, Lucky Strike, Kent and Eve. In addition, no party to the instant litigation alleges that defendants provide any consumers with warnings concerning the additional health risks posed by menthol cigarettes in comparison to non-mentholated tobacco products.
Black Smokers filed this action in the United States District Court for the Eastern District of Pennsylvania on October 19, 1998. A month later, Black Smokers filed a First Amended Class Action Complaint correcting the caption. By leave of the court, Black Smokers filed a Second Amended Complaint on December 9, 1998, in order to add claims purportedly arising under the Fifth and Fourteenth Amendments to the United States Constitution and
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction pursuant to
III. DISCUSSION
A. REGULATING TOBACCO PRODUCTS
A brief summary of the federal regulation of the tobacco industry is a necessary prerequisite to a discussion of Black Smokers’ civil rights claims. Manufacturers of cigarettes are subject to the Federal Cigarette Labeling and Advertising Act of 1965 and its successor, the Public Health Cigarette Smoking Act of 1969,
B. CIVIL RIGHTS CLAIMS: SECTIONS 1981 AND 1982
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Although not identical, the requisite elements of claims under
Accepting as true the facts alleged in the complaint, we conclude that Black Smokers have not alleged a claim cognizable under either
The question at the heart of Black Smokers’
One might argue that if racially directed marketing of menthol cigarettes resulted in a situation in which virtually all mentholated tobacco products were consumed by African-Americans and substantially all non-mentholated tobacco products by others, that case might come within the sweep of Roper. However, Black Smokers have not alleged such a situation.
In order to salvage their
Moreover, even if Black Smokers’ segregated market exploitation claims were cognizable on the facts alleged, we must reject them on procedural grounds. It does not appear that Black Smokers advanced such claims in the District Court; arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible of review in this Court absent exceptional circumstances (e.g., the public interest requires that the issues be heard or manifest injustice would result from the failure to consider such issues). See, e.g., United States v. Anthony Dell‘Acquilla Enter. & Subsidiaries, 150 F.3d 329, 335 (3d Cir.1998) (citations omitted); United Parcel Serv. Inc. v. International Brotherhood of Teamsters, 55 F.3d 138, 140 n. 5 (3d Cir.1995). No such exceptional circumstances are apparent here.
Third, Black Smokers assert that defendants’ targeted marketing practices violate the “full and equal benefit” clause of
Notwithstanding Black Smokers’ arguments to the contrary, their complaints essentially constitute discriminatory advertising claims. Black Smokers virtually admit as much when they characterize their claims as allegations of discriminatory targeting in sales of allegedly defective products. Although Black Smokers argue that their claims resemble racial profiling and racially-motivated prepayment cases, all such fact patterns are distinguishable from the instant case because they involve either a naked, racially-motivated restriction on dealing or a race-based variation of the
Even in the context of housing discrimination—arguably a paradigmatic example of the rights Congress sought to protect under the Civil Rights Acts—ample authority exists in support of the proposition that discriminatory advertising is not actionable under
C. SECTION 1983
D. THE BIVENS AND FIFTH AMENDMENT CLAIMS
The controlling question with respect to Black Smokers’ claims under Bivens, supra, and the federal Constitution is whether defendant tobacco companies should be regarded as federal actors. In Bivens, the Supreme Court found that a damages claim arose under the federal Constitution where a federal agent acting under color of federal authority violated the Fourth Amendment. Id. A Bivens action, which is the federal equivalent of the
Moreover, the averment that defendants should be subject to the mandates of the Constitution because their activities have been allegedly approved by the federal government through defendants’ compliance with the Labeling Act is unconvincing. The mere fact that a tobacco company has complied with the requirements of a federal law cannot suffice to transform it into a federal actor any more than the compliance of a myriad of private enterprises with federal law and administrative regulations could of itself work such a transformation.2 Additionally, because the alleged wrongdoing (the targeted advertising of mentholated tobacco products to African-Americans) is not required by the Labeling Act, it is difficult to view such targeted advertising as federal action by defendants which can serve as the basis for a Bivens action.
The second requirement of the Lugar analysis—that the private party could in all fairness be regarded as a federal actor—may be met under one of three interrelated theories of government action: (i) the “public function” test, (ii) the “close nexus” test and (iii) the “symbiotic relationship” test. In addition, Black Smokers discern in case law a fourth, more synthetic “totality of the circumstances” test, the existence of which is doubtful, as we explain infra. In order to determine which test should be applied to a given set of facts, courts must investigate carefully the circumstances of each case. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Community Med. Center v. Emergency Med. Services, 712 F.2d 878, 880 (3d. Cir.1983) (citations omitted). Regardless of what test is ultimately applied, the object of the inquiry is to determine whether a private entity has exercised powers traditionally reserved exclusively to the government, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), or whether “the defendant exercised power possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed in the authority of [federal] law.” Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (citations omitted).
The gravamen of the “public function” test is whether the government
In the case at bar, the action complained of is the lawful sale and marketing of a legal, albeit federally regulated, consumer product: a private rather than public, and a fortiori not “exclusively” public, function. Even if the activities at issue extended, as Black Smokers suggest, beyond the mere marketing and sale of mentholated tobacco products to the testing and labeling of such products, Black Smokers’ argument would fail because it would not meet the exclusivity requirement under the public function test. Given that many products, including mentholated tobacco, are tested, marketed and labeled by their manufacturers, often in accordance with applicable regulatory requirements, such activities cannot be characterized as the exclusive prerogative of the government. As the District Court noted, it is simply inaccurate to suggest that the testing, labeling and marketing of cigarettes is the exclusive province of the federal government. Finally, Black Smokers’ averment that defendants’ compliance with various federal labeling requirements transforms defendants into government actors is without support in applicable case law. Such propositions have been flatly rejected by the Supreme Court on several occasions; see American Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. 2777; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that the fact that a business is subject to government regulation does not by itself convert the business‘s action into that of the government).
Black Smokers’ allegations that defendants’ actions satisfy the “close nexus” test under the government action analysis are also unavailing. As with the public function analysis, Black Smokers apparently discern the purported nexus between the private action complained of and the federal government in the operation of the Labeling Act. They assert that the Labeling Act encourages tobacco manufacturers to conceal the dangers of mentholated cigarettes, mandates inadequate warnings on such products and preempts most tort actions against defendants. However, because the Labeling Act does not compel, influence or encourage the actions upon which this suit is based—the targeted marketing of mentholol cigarettes to African-Americans—but rather only requires the disclosure of certain risks on tobacco product packaging, defendants’ conduct in compliance with the Labeling Act does not create the “close nexus” necessary for a finding of state action. See Rendell-Baker
Black Smokers’ attempt to classify this case under the “symbiotic relationship” category of state action cases is similarly tenuous. In the seminal, albeit somewhat idiosyncratic, case of Burton v. Wilmington Parking Auth., supra, the Supreme Court held that a coffee shop, which leased property located in a government owned parking garage, was integrated with the parking facility as an organic part of the government operation and was party to a mutually beneficial relationship with the government. Out of these facts arose the “symbiotic relationship test,” which asks whether the government has “insinuated itself into a position of interdependence” with the defendant. Burton v. Wilmington Parking Auth., 365 U.S. at 725, 81 S.Ct. 856.
Black Smokers’ allegations concerning defendants’ relationship with the federal government prove both too little and too much; and in any case, they scarcely suffice to make out a “symbiotic relationship” within the meaning of Burton. Black Smokers aver that (i) the government benefits from its relationship with defendants by virtue of collecting “enormous tax revenues” from the tobacco industry and (ii) the interests of the government and defendants are “explicitly intertwined” under the terms of the Labeling Act, id. While these averments are undoubtedly true, they are inadequate to demonstrate government action. Virtually all enterprises are subject to tax collection and, to varying degrees, to regimes of administrative regulation; were these attributes sufficient to satisfy the test of Burton, substantially all businesses in the country would effectively become federal actors. See Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082 (2d Cir.1990). Moreover, although Burton retains much of its precedential value, it should be noted that the Supreme Court has recently cast some degree of doubt upon that decision. In American Mfrs. Mut. Ins. Co. v. Sullivan, supra, which reversed our finding that certain private insurance companies were to be regarded as state actors under Burton, the Supreme Court noted that ”Burton was one of our early cases dealing with ‘state action’ under the Fourteenth Amendment, and later cases have refined the vague ‘joint participation’ test embodied in that case.” Id., 526 U.S. at 57, 119 S.Ct. 977 (citations omitted).3
Finally, Black Smokers contend that an expansive, fact-oriented “totality of the circumstances” approach to the question of government action exists wholly apart from the three inquiries discussed supra
Purporting to use this asserted “totality of the circumstances” test as the basis of their remaining government action analysis, Black Smokers compare the instant case to Edmonson v. Leesville Concrete, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Leaving aside the question whether the federal courts have ever explicitly recognized Black Smokers’ “totality of the circumstances” approach, the facts of the instant case are readily distinguishable from those of Edmonson. In Edmonson, the Supreme Court held that lawyers’ use of peremptory challenges was pursuant to a course of government action and consequently that any racially discriminatory use of such challenges violates jurors’ equal protection rights. Edmonson v. Leesville Concrete, 500 U.S. at 622-23, 111 S.Ct. 2077. The sine qua non of the Court‘s decision in Edmonson was the presence of government involvement so pervasive in the context of the challenged actions as to render such actions virtually inseparable from the participation of the government. The Edmonson Court therefore emphasized that peremptory challenges “simply could not exist” without the government‘s “significant participation.” Id. at 622, 111 S.Ct. 2077. The Court went on to characterize the jury as “a quintessential government body, having no attributes of a private actor,” id. at 624, 111 S.Ct. 2077, and to note that peremptory challenges are performed in the context of an inarguably “traditional government function“: trial by jury. Id. By contrast, in the instant case, the federal government does not in any manner design, mandate or approve the alleged racially targeted advertising of which Black Smokers complain, notwithstanding the fact that such advertising is subject to certain requirements and restrictions set forth in the Labeling Act. Black Smokers’ insistence at oral argument that the preemption of certain categories of tort actions by the Labeling Act in some way constitutes the exercise of a traditional government function or significant governmental participation within the meaning of Edmonson is also without support in applicable precedent; indeed, such preemption provisions are commonplace in federal product safety and information disclosure legislation. See, e.g.,
E. SECTION 1985(3) CLAIM
Black Smokers’
If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for recovery of the damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
It is well established that
The instant case is distinguishable from the cases cited above because Black Smokers assert the deprivation of a different type of rights: those of property and contract. Additionally, the District Court correctly observed that because such rights—which entail freedom from discrimination by a private actor—are statutorily enacted, rather than of purely constitutional provenance, they cannot be vindicated under
Black Smokers attempt to salvage their
IV. CONCLUSION
For the foregoing reasons, we will affirm the decision of the District Court in all respects. The District Court correctly held that Black Smokers’ claims of racially targeted advertising and marketing of mentholated tobacco products were inadequate to state a cause of action under
SHADUR, District Judge, Dissenting in part:
What has been said in the majority opinion may properly be viewed as having put forth the best possible case for affirmance of the District Court‘s dismissal of the Black Smokers’ Second Amended Complaint (“Complaint“). But that presentation, I believe, has despite itself highlighted the basic flaws in such a threshold
Both the panel majority and I necessarily proceed from the seminal statement in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) of
A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
And the majority opinion also correctly recognizes, though I fear it does not fairly apply, the proposition that all reasonable inferences that can be drawn from the allegations in the Complaint, as well as the allegations themselves, must be accepted as true (Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993)).
Because we deal with a Complaint whose allegations must thus be credited, there is no need to dwell at length on the appalling record disclosed by Black Smokers’ pleading. Their—110 page 211-paragraph Complaint does not comport with the
In that light, where I first part company with the majority opinion is in its having ruled as a matter of law “that Black Smokers’ allegations of racially targeted marketing of mentholated tobacco products cannot, in the absence of any disparity between the products sold to African-Americans and the products sold to others, constitute a deprivation of contract or property rights actionable under
Black Smokers do not make the sort of claim that is most readily actionable under the statute: that they have been deprived by defendants of the right to contract for, purchase, own or use either menthol or non-menthol cigarettes.
What must be understood instead is that both
Nor should it avail the tobacco companies to attempt to trot out “freedom of contract” principles. On the uncontested allegations of the Complaint, they have deliberately suppressed the added perils created by the mentholated products, concealing them from Black Smokers. And it just will not do for the tobacco companies to argue that they are somehow equal opportunity deceivers—that they have betrayed Whites and Blacks alike by their deception. When their alleged concealment of the known risks (known to them, that is) is coupled with their express efforts to maximize the sales of mentholated coffin nails and mentholated smokeless tobacco to Blacks, the inequality of treatment forbidden by
And this is not at all speculative. Defendants’ repeated (and it must be said hypocritical) emphasis on the fact that 69% of the mentholated products are used by non-Blacks is as deceptive as their historical conduct of denying the extraordinarily harmful effects of nicotine generally and of menthol in particular. What that repeated emphasis glosses over is the enormous disparity between the 10+% of the population represented by Blacks and the Black Smokers’ 31%2 consumption of the menthol cigarettes. It will be recalled that the rule of thumb for demonstrating discrimination has been recognized in these terms for a quarter century (Castaneda v. Partida, 430 U.S. 482, 496-97 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1976)):
As a general rule for such large samples, if the difference between the expected value and the observed number is more than 2 or 3 standard deviations, then the hypothesis that the difference was random will be suspect to a social scientist.
Two standard deviations equate to a 5% likelihood of chance distribution. And by contrast the probability that a 10% versus 31% disparity is a matter of mere chance represents, as an approximation (and essentially a conservative one) of the normal distribution, some 7 standard deviations—producing a figure so small as to beggar the imagination: 1.28 in a trillion.3
That extraordinary imbalance (truly an understatement, for such a huge disparity is almost beyond human comprehension) really cuts the legs out from under the majority opinion‘s attempt to distinguish the decision in Roper v. Edwards, 815 F.2d 1474 (11th Cir.1987) by stating:
One might argue that if racially directed marketing of menthol cigarettes resulted in a situation in which virtually all mentholated tobacco products were consumed by African-Americans and substantially all non-mentholated tobacco products by others, that case might come within the sweep of Roper. However, Black Smokers have not alleged such a situation.
In real world terms there is no conceptual difference between the notion that “virtually all mentholated tobacco products were consumed by African-Americans” and the situation in which that group‘s comparative consumption is so close to 100% of total
It is surely unreasonable to ascribe such an enormous disparity to chance rather than to the purposeful steering that has been alleged by Black Smokers—at a minimum, they should be allowed their day in court to prove that racial animus may reasonably be inferred from the tobacco companies’ deliberate targeting of African-Americans as their far-preferred targets of the more dangerous products at issue. There is no question that even the far, far smaller but still statistically significant disparity of two standard deviations suffices to warrant an inference of intentional discrimination—see, e.g., such cases as Smith v. Xerox Corp., 196 F.3d 358, 365-66 (2d Cir.1999).
Nor I suggest will it do (as the tobacco companies have urged and as the majority opinion has credited) to say that Black Smokers cannot complain about that deliberate steering because Blacks were already predisposed to prefer the mentholated products. We are after all dealing with the case at its very outset. Nothing has been shown—because no opportunity has been given to Black Smokers—as to whether that preference was itself the product of the same kind of improper steering at the outset, or even if not, as to whether the earlier preference even began to approach (let alone to account for) the enormous disparity that now exists (a showing that might for example be accomplished, again to deal with statistical probabilities, through the application of multiple regression analysis).
In response to Black Smokers’ uncontroverted allegations about the tobacco companies’ purposeful steering of their known extra-harmful mentholated products to the African-American market, the majority opinion accepts the argument that this was no more than conventional advertising, something that Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) characterized as non-actionable under
It [Section 1982] does not prohibit advertising or other representations that indicate discriminatory preferences.
That sanitization of mere statements of discriminatory preferences does not control here, however, for when such discriminatory preferences are translated into discriminatory action, as is alleged here (and as we must credit), the actor cannot fairly be insulated from the impact of
Indeed, that is precisely the thrust of the eloquent opinion by the late Judge Luther Swygert in Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir.1974), which found support rather than a lack of support in Jones v. Mayer, but which the majority opinion seeks to distinguish because the sales of housing to Black purchasers in Clark were on more onerous terms than the sales to non-Blacks. But once again I suggest that the attempted distinction is hollow—that defendants’ conduct set out in the Complaint in this case effectively created the same type of separate, racially-segregated market as was found actionable in Clark. Such cases as Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1525, 1529 (7th Cir.1990) teach that racial steering is forbidden both by
Finally, what of the required showing of racial animus? Is it a defense for the tobacco companies to urge that their pattern of general concealment and deception reflected nothing more than a free market desire to make profit, and that their targeting of Black Smokers was nothing more than a desire to maximize those profits because the Blacks were most vulnerable to the most deleterious products? Again, unlawfully discriminatory intent under the discrimination laws generally has been recognized as reasonably inferable from far less evidence of disparate impact—should any different principle apply here? Once more the tobacco companies’ callous indifference to smokers’ health has been demonstrably more marked toward Black Smokers—that is the combined effect (1) of the tobacco companies’ knowledge (and their concealment of that knowledge) about the special deadliness of the mentholated products that they have been marketing and (2) of their express targeting of those products toward the African-American community.
It is not of course my purpose to express any conclusion as to the existence or nonexistence of the prohibited intent. Instead the focus of this opinion is to stress the requirement that, as with all other factual issues, intent must be resolved by a factfinding jury (or perhaps by a judge in the summary judgment context of
We would do well to remember what Justice O‘Connor (speaking for a unanimous Supreme Court on this issue) said in rejecting the threshold dismissal of a pro se prisoner‘s complaint because of a judicial view that its allegations were unlikely (Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)):
Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction.” Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977).
Black Smokers are surely entitled to no less, where their factual assertions are so solidly supported (and not in the least fanciful), and where the perceived problems with their Complaint really represent skepticism as to their ability to prove causation and intent—classic issues of fact to be resolved by a factfinding jury and not by judicial prescreening.
In sum, I suggest that cutting Black Smokers off before they have had the opportunity to demonstrate that they can deliver as advertised5 in their Complaint does violence to the fundamental principles of judicial reading of complaints, as acknowledged both in the majority opinion and in this dissent. Accordingly, I respectfully dissent in the respects spoken of here.