____________________________________
 ROBERT B. SKLAROFF, MD
pro se

 v.

PHILIP MORRIS, INC.,
c/o Mary A. McLaughlin, Esquire
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA  19103-2793
COURT OF COMMON PLEAS
PHILADELPHIA COUNTY

CIVIL ACTION – EQUITY

MAY TERM, 1999

No.  2101

COMPLAINT OF PLAINTIFF, ROBERT B. SKLAROFF, MD

Robert B. Sklaroff, MD, today files this Civil Complaint because a member of the Tobacco Industry [“TI”] flagrantly violated the Master Settlement Agreement [“MSA”] with the Attorney General [“AG”] of the Commonwealth of Pennsylvania {“CoP”] and because the AG knowingly failed to prosecute the tobacco manufacturer that effected this abrogation of this nationwide pact.  Specifically, Philip Morris, Inc. [“PM”] initiated a “Manufacturer Sponsored Promotion” with Wawa Food Markets [“Wawa”] that led to the posting of forty (40) large outdoor billboards in the CoP that advertised the availability of its product, Marlboro, at a discount ($2.19/pack).  The proprietary cigarette logo was employed thereupon, behavior that constituted unambiguously prohibited activity by PM under the dictates of the MSA.  Following communication with the AG regarding this problem, Wawa “voluntarily” agreed to remove the billboards forthwith; because the AG failed to seek appropriate damages from PM for this action, however,  Dr. Sklaroff has filed public interest lawsuit, reflecting his legally enforceable interest—inasmuch as there otherwise will be no way to achieve appropriate relief from PM—   and states in support thereof:

Parties

1. Robert B. Sklaroff, MD, is a physician-activist and taxpayer.

2. Dr. Sklaroff has a legally enforceable interest and standing as a taxpayer and as a private Attorney General to initiate this action according to the Biester guidelines [487 Pa. at 443, 409 A.2d at 851 (1979)] and because he has a direct, substantial and immediate interest in the necessity for PM to comply with the MSA.

3. Defendant Philip Morris, Inc. [“PM”] is a Virginia corporation authorized to do business in the CoP and which actually does business in the CoP, and has its principal place of business at 120 Park Avenue, New York, New York  10017.  PM manufactures, distributes, advertises and sells various tobacco products—including those under the brand name “Marlboro”—throughout the United States and throughout the CoP.

4. D. Michael Fisher, Esquire, is the CoP Attorney General.

Procedural History

5. The existence of the MSA was announced nationally on November 16, 1998;       it  was approved in the CoP on January 13, 1999 by Judge John W. Herron of the Philadelphia Court of Common Pleas.

6. Its current status is under review by Commonwealth Court.

The Master Settlement Agreement

7. The MSA mandated “Elimination of Outdoor Advertising” [III (d)]:
(1)  Removal.  Except as otherwise provided in this section, each Participating Manufacturer shall remove form within the Settling states within 150 days after the MSA Execution Date all of its (A) billboards (to the extent that such billboards constitute Outdoor Advertising) advertising Tobacco Products. . . .

8. The MSA defined “Outdoor Advertising” [II (ii)]:
(1) billboards,
(2) signs and placards in arenas, stadiums, shopping malls and video game arcades (whether any of the foregoing are open air or enclosed) (but not including any such sign or placard located in an Adult-Only Facility), and
(3) any other advertisements placed
    (A) outdoors, or
    (B) on the inside surface of a window facing outward.
        Provided, however, that the term "Outdoor Advertising" does not mean
            (1) an advertisement on the outside of a Tobacco Product manu- facturing facility;
            (2) an individual advertisement that does not occupy an area larger than 14 square feet (and that neither is placed in such proximity to any other such advertisement so as to create a single "mosaic"-type advertisement larger than 14 square feet, nor functions solely as a segment of a larger advertising unit or series), and that is placed
                (A) on the outside of any retail establishment that sells Tobacco Products (other than solely through a vending machine),
                 (B) outside (but on the property of) any such establishment, or
                (C) on the inside surface of a window facing outward in any such establishment;
            (3) an advertisement inside a retail establishment that sells Tobacco Products (other than solely through a vending machine) that is not placed on the inside surface of a window facing outward; or
            (4) an outdoor advertisement at the site of an event to be held at an Adult-Only Facility that is placed at such site during the period the facility or enclosed area constitutes an Adult-Only Facility, but in no event more than 14 days before the event, and that does not advertise any Tobacco Product (other than by using a Brand Name to identify the event).

9. The MSA has a “Limitation on Third-Party Use of Brand Names” [III (i)]:
After the MSA Execution Date, no Participating Manufacturer may license or otherwise expressly authorize any third party to use or advertise within any Settling State any Brand Name in a manner prohibited by this Agreement if done by such Participating Manufacturer itself.
Each Participating Manufacturer shall, within 10 days after the MSA Execution Date, designate a person (and provide written notice to NAAG of such designation) to whom the Attorney General of any Settling State may provide written notice of any such third-party activity that would be prohibited by this Agreement if done by such Participating Manufacturer itself. Following such written notice, the Participating Manufacturer will promptly take commercially reasonable steps against any such non-de minimis third-party activity.  Provided, however, that nothing in this subsection shall require any Participating Manufacturer to (1) breach or terminate any licensing agreement or other contract in existence as of July 1, 1998 (this exception shall not apply beyond the current term of any existing contract, without regard to any renewal or option term that may be exercised by such Participating Manufacturer); or (2) retrieve, collect or otherwise recover any item that prior to the MSA Execution Date was marketed, distributed, offered, sold, licensed or caused to be marketed, distributed, offered, sold or licensed by such Participating Manufacturer.

10. The MSA mandated “Enforcement” of these provisions [VII]:
(a) Jurisdiction.  Each Participating Manufacturer and each Settling State acknowledge that the Court. . .(2) shall retain exclusive jurisdiction for the purposes of implementing and enforcing this Agreement and the consent Decree as to such Settling State. . . .
(b) Enforcement of Consent Decree.  Except as expressly provided in the Consent Decree, any Settling State or Released Party may apply to the Court to enforce the terms of the Consent Decree (or for a declaration construing any such term) with respect to alleged violations within such Settling State. . . .
(c) Enforcement of this Agreement…(4)  If an issue arises as to whether a Participating Manufacturer has failed to comply with an Enforcement Order, the Attorney General  for the Settling State in question may seek an order for interpretation or for monetary, civil contempt or criminal sanctions to enforce compliance with such Enforcement Order.

Billboard Advertisements

11. Prior to May 10, 1999, forty (40) billboards were posted in the CoP by Wawa advertising the availability of a PM product (Marlboro cigarettes) for $2.19/pack.

12. These billboards indisputably met the definition of outdoor billboards in the MSA and, thus, were indisputably prohibited by the MSA.

13. The subject billboard advertisements indicated thereupon that they each was a “Manufacturer Supported Promotion”; inasmuch as PM manufactures Marlboro cigarettes, such promotional support through a third-party by this MSA-signatory was indisputably banned by the MSA.

14. On May 10, Dr. Sklaroff notified the AG that PM was in violation of the MSA because it had not taken any “reasonable commercial steps” to stop Wawa from employing its Marlboro logo on this billboard advertising [Appendix A].

15. Following receipt of Dr. Sklaroff’s complaint, between May 11-12, the AG communicated with Wawa; as a result, Wawa “voluntarily” agreed to remove the billboards expeditiously, events that were well-documented in print and broadcast media reports that have been transmitted both locally and nationally [Appendix B].

16. PM has refused to apply its enforcement obligations under the MSA, as evidenced by comments on the May 17, 1999 television program “Good Morning America” made by PM Senior Vice President Ellen Merlo, who dismissed and discounted the “Third-Party” clause:  “Because Wawa sells the product and that’s all they’re doing is advertising they have the product for sale, we do not have any legal recourse.”

17. On the television program “Good Morning America aired on May 17, 1999,          the AG stated:  “We considered the Wawa billboards as a clear violation of the Agreement. . . .We think that means going to court, if necessary, to stop retailers from advertising their product.”

18. The AG, however, failed to seek penalties against PM as a result thereof, and the AG failed to seek injunctive relief to prevent similar future violations of the MSA.

19. Dr. Sklaroff believes and therefore avers that PM has provided and continues      to provide financial incentives to its distributors and retailers for advertising and other promotional purposes for use without restriction thereupon.

20. Further, Dr. Sklaroff believes and therefore avers that, as a consequence,   retailers such as Wawa use such financing to pay for billboard advertising; thus, PM intentionally and knowingly finances tobacco-billboard advertising in direct violation of the MSA.

21. PM's conduct is a violation of the MSA.

22. PM's conduct is an unfair trade practice and violates the Pennsylvania Unfair Trade Practices and Consumer Protection Law in that:
a. PM is promoting advertising that is misleading as to its sponsor-ship and endorsement which are prohibited by the MSA.
b. PM is promoting advertising that is deceptive and confusing.
c. PM's promotion of tobacco products is an unfair trade practice, representing that tobacco has benefits and qualities that it does not have.

23. Plaintiff lacks an adequate or appropriate remedy at law to compel PM to cease and desist, and therefor is entitled to equitable and injunctive relief.

24. By reason of the aforesaid, Dr. Sklaroff and the CoP are suffering immediate and irreparable harm, entitling them to temporary, preliminary and final injunctive relief plus reasonable attorney fees and costs (pursuant to 42 PA.C.S.A.  2503).

Prayer for Relief

WHEREFORE, Dr. Sklaroff demands a trial be held in the Philadelphia Court of Common Pleas before Judge John W. Herron.  Dr. Sklaroff demands judgment against PM for all damages suffered by the CoP and its citizenry by reason of its harmful activity, flagrant violation of the MSA, deceptive practices, unfair trading practices, and violations of the Consumer Protection Law.  Dr. Sklaroff seeks compensatory and punitive damages; temporary, preliminary and final injunctive relief; plus reasonable attorney fees and costs.

Respectfully Submitted,

[RBS]

CERTIFICATE OF SERVICE

I, Robert B. Sklaroff, M.D., hereby certify that on this, the 17th day of May, 1999, I caused a true and correct copy of this motion to be sent today, by First Class Mail, to Counsel at the addresses listed below:

Mary A. McLaughlin, Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA  19103-2793