Arnold & Porter

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This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

Arnold & Porter, an "international law firm specializing in cross-border regulatory, transactional, and litigation issues, particularly as they relate to the pharmaceutical and medical technology industries," currently has seven offices worldwide and, in 2002, employed 687 attorneys.

The firm's Managing Partner is James Sandman. Arnold & Porter was founded "shortly after World War II" by "three veterans of the New Deal ... as Arnold, Fortas & Porter." [1][2][3]

"Thurman Arnold was a former law professor and law school dean, Assistant Attorney General, and U.S. Court of Appeals Judge. Abe Fortas, who would later become a Supreme Court Justice, also served in various government positions, including Undersecretary of the Interior. Paul Porter was a former Chairman of the Federal Communications Commission and Administrator of the wartime Office of Price Administration ... Many of the firm's attorneys have held senior positions in such U.S. government agencies as the Departments of State, Justice, and Treasury, the Federal Reserve Board, the Federal Trade Commission, the Federal Communications Commission, the Central Intelligence Agency, and the Securities and Exchange Commission." [4]

The firm's name was previously "Arnold, Fortas & Porter"; Supreme Court Justice Abe Fortas was a partner.(E. Whelan 1984). The firm was first retained by Philip Morris in 1963.(E. Whelan 1984)

They note that: "Our team is not only comprised of top lawyers from America and Europe's best colleges and law schools, but of doctors, biologists, chemists, public policy professionals, and former high-ranking officials from the US government. In fact, over 80 of our partners have served in positions in the US government, from the Federal Trade Commission to the Department of Justice to the US Congress." [1] Moreover, "Arnold & Porter LLP has one of the world's leading law firm pro bono programs." [2]

"Arnold, Fortas & Porter was the only major law firm in the United States willing to represent the victims of McCarthyism. In 1950, Senator McCarthy made a false charge that an Asian affairs expert named Owen Lattimore was the "top Communist espionage agent" in the country, instantaneously making Lattimore the most reviled man in America. Within hours, future Supreme Court Justice Abe Fortas (soon joined by Thurman Arnold) signed on for a bitterly protracted legal battle, including the longest ever grilling of a single person by a congressional committee, as well as an indictment for perjury because Lattimore denied being a Communist "sympathizer."
"The firm ultimately defeated all of these charges, and its courage in taking Lattimore's case brought numerous other victims of McCarthyism to our door. At their height, our lawyers were devoting approximately half of their working hours to such pro bono cases. Our founders' stand for justice set a standard for commitment to public service that has been a core value of our firm ever since." [3]

Arnold & Porter and the Tobacco Industry

According to the company's website "Arnold & Porter serves as national counsel for Philip Morris in lawsuits seeking to hold the company liable for illnesses allegedly caused by smoking, including the recent Medicare reimbursement cases brought by the states and numerous state class action lawsuits brought by plaintiffs seeking to recover for alleged tobacco-related illnesses."

"The firm also tried the widely publicized cases, Cipollone v. Liggett, et al., which resulted in a favorable jury verdict for Philip Morris. Further, the firm participated in the Supreme Court proceedings which established that certain claims against tobacco manufacturers are pre-empted by federal law" it states. [5]

A 1993 internal budget review document for the Philip Morris group of companies has Arnold and Porter listed with a budget line item of $1,100,000. The accompanying description states “Provides legal advice to the PM family on the tort project and counsels the PM Family on tort related matters that relate to compliance issues about lobbying, political and tort coalition contributions”.[6]

In their book The Moral Compass of the American Lawyer Richard Zitrin & Carol M. Langford noted that in 1968 Arnold & Porter suggested routing public opinion survey work via lawyers as a way of being able to shield the results from discovery. The survey was intended to indicate that Americans were aware of the risks of smoking. "Should the results prove unfavorable," they cited one memo stating, "there will be nothing in the [survey takers'] records to subpoena...." The information would be harder to discover "if the survey were in an attorney's files."[7]

In a remarkable memorandum written in 1988 by A&P lawyer Thomas Silfen, Silfen muses about what can be done "to relieve the [tobacco] industry's long agony over health issues--to get the industry out of the 'it hasn't been proven' trap once and for all." Silfen mulls over the utility of the industry's stance that the connection between smoking and disease "hasn't been proven," and discloses its shortfalls when it comes to litigation and public health:

In litigation, we have sought to defuse the issue by adopting the slightly softened risk factor position: i.e., there is a statistical association which could possibly be causal, but the evidence is still not conclusive. Out of court, and especially before Congress, that position will not suffice. When the issue is public health not scientific proof, admitting that tobacco is a 'risk' actually highlights the hard questions. How big is the risk: is it 20% proven or 40% proven or 55%?... Given that risk, how many people die from smoking: if not 350,000, is it 200,000 or 100,000? What would it take to convince us that it is proven; are we waiting until every doctor in the world agrees? And what are we going to do once we are finally convinced; will we stop selling the, product, as some company officials have said in the past?

Despite this, Silfen argues against admitting that cigarettes cause disease, putting higher priority on the image and liability problems that would be caused if the industry admitted that cigarettes kill people. Silfen counsels that abandoning the industry's long-standing "case isn't proven" stance without a sizeable scientific event

...would look bad in the public forum and, perhaps, in court as well. More importantly, admitting causation leaves the really significant public health questions unanswered: What do we do next? Do we stop selling cigarettes altogether or stop advertising or submit to FDA jurisdiction? We are right back on the spot, maybe worse off.

Silfen envies the model of the alcohol industry, since their product has similar problems. He wrote,

"Why do we tolerate alcohol sales and promotion, despite the attendant death, crime and misery? Several elements seem to contribute. Everybody knows the danger of alcohol (or at least, we all assume that everybody knows). The alcohol manufacturers do not deny the negative aspects of their product and, in fact, counsel both moderation and adult a matter of law, alcohol use is restricted to adults. Finally, we tried prohibition in this country and it was a miserable failure. That is the position we want for tobacco. Once a product is used only by fully informed, competent adults, all that remains (we would say) is prohibition.

However, Silfen recognized a major difference from the "alcohol model":

Cohen tells us that we have created an inconsistent information environment in which vulnerable smokers are able to disbelieve even the best known health warnings. This is, of course, a major difference from the 'alcohol model.' [8]

Arnold & Porter represented Philip Morris in the Rose Defrancesco Cipollone lawsuit, in which the plaintiff, who began smoking in 1942 and died of cancer in 1984, accused tobacco companies of failure to adequately warn the public about the potential lethality and addictiveness of their cigarettes. The jury awarded her husband, Antonio Cipollone, $400,000, representing the tobacco industry's first loss in a courtroom.

The company also has an extensive involvement in environmental litigation.

Working for Colombia

In March 2005 Arnold & Porter was retained by the Colombian government "to provide advice concerning external capital markets and other financial transactions, including with respect to the application of U.S. laws and regulations applicable thereto, as well as advice on other matters from time to time requested by the Ministry of Finance of Colombia. Included in this latter category is advice on legal issues concerning certain aspects of the Free Trade Agreement negotiation betweren the Republic of Colombia and the United States." Under the agreement A&P a series of payments were scheduled to be paid to the company on completion of various steps including capital raising.[4]

Contact information

Arnold & Porter
555 Twelfth Street, NW
Washington, DC 20004-1206
Phone: 202.942.5000

Also: Offices in Northern Virginia, New York, Los Angeles, Century City, CA, London, and Denver.

Company Brochure.

Resources and articles

Related Sourcewatch articles


  1. Who we are, Arnold & Porter, accessed November 18, 2008.
  2. Pro Bono, Arnold & Porter, accessed November 18, 2008.
  3. Then and Now, Arnold & Porter, accessed November 18, 2008.
  4. "Exhibit B; Registration Statement Pursuant to the Foreign Agents Registration Act of 1938, as amended", March 23, 2005, page 3.

External links

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