C
CAUSE NO. 9994
IN THE MATTER OF THE
ACQUISITION OF CONTROL
OF FARMERS GROUP, INC.,
FARMERS TEXAS COUNTY MUTUAL
INSURAWE COMPANY, TEXAS
FARMERS INSURANCE COMPANY
AND MID-CE14TURY INSURANCE
CCMPANY OF TEXAS BY
BATUS FINANCIAL SERVICES
INC., BATUS INC., AND
B.A.T INDUSTRIES P.L.C.
BEFORE THE HONORABLE
DOYCE R. LEE
COMMISSIONER OF INSURA11CE
STATE OF TEXAS
MEMORANDUM IN OPPOSITION TO FARMERS GROUP INC.S
REQ0EST
FOR COMMISSION FOR TAKING OF EVIDENCE OF DR. S.J.
GREEN
I. DISCOVERY CONCERNING TOBACCO RESEARCH IS NOT
RELEVA11T
Farmers' request for a commission for the
depobLtion of
Dr. S-J. Green is its latest and most intemperate
attempL to
convert this insurance proceeding into an
inquisition on Lhe
history of the tobacco industry and the science of
disease
causation. Farmers has failed to convince any of
the eiLjlit
insurance commissioners who have considered the
acquisition thus
far to expand the scope of discovery to include
materials relating
to the issues of smoking and disease. Now, in
Texas, Farmers has
broadened its request for the irrelevant by making
irresponsible
charges fabricated out of "accusations,
insinuations and
suspicions." By this most recent attempt to divert
the Texas
proceeding to immaterial issues, Farmers asks the
Commissioner to
exceed his statutory authority by attempting to
compel the
appearance of a witness for depositicn who resides
not cnLy
outside cE the State of Texas but also outside of
the United
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States. Farmers' request for this unauthorized
arid irrelevant
discovery shotild be denied.
The Form A proceeding is not a proper or competent
forum
in which to determine the causes of disease, the
significance of
scientific research, or the Legality of
cigarettes. The
irrelevance of discovery on these topics has been
confirmed by the
rulings in the state insurance proceedings that
have already taken
place. Despite repeated requests by Farmers for
similar
discovery, no state has required the production of
any documents
or issued a single subpoena for the purpose of
taking evi,lence
regarding tobacco research. Indeed, when Farmers'
couns.l.
recently made similar "representations" to the
California Superior
Court in Los Angeles in an "Offer'of Proof"
regarding B.A.T's
4
tobacco business, the Court denied Farmers'
request for additional
discovery similar to that sought here, including a
reque-~t to
compel the deposition of Dr. Green. In rejecting
the request, the
Court found that Farmers' alleged proof was no
more Lhati
"accusations, insinuations and suspicions." (See
Ruling of
August 5, 1988 attached as Exhibit A). The Court
found further
that "the role of smoking in cancer" was not an
issue
Notwithstanding allusions to several
current controversial issues, including
the role of smoking in cancer, . . . ~:he
only determination presented to this
court in these proceedings for
adjudication is whether the Insurance
Commissioner of the State of CaliforIlLa
performed her duties and whether site
properly appLied the applicable 3ections
of the Insurance code in BATUS'
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application for a certificate of
authority in its proposed acquisition of
Real Party in Interest, Farmers rnsurance
Group.
The "tobacco" issues are irrelevant to the Texas
statutory criteria which are similar to the
California criteria
and should be excluded from the hearing.1 By
seeking discovery of
scientific research on tobacco Farmers seeks to
erect a facade to
divert the Commissioner's attention from the
statutory criteria
which BATUS will prove it meets. We discuss first
the facts and
then briefly the "accusations, insinuations and
susp1clor.s."
First, BATUS will continue non-smoker discounts.
BATUS
does not plan to discontinue any of Farmers'
existing pr,,duct
lines, including its policies with non-smoking
discounts. The
unequivocal testimony in all of the state
proceedings hale been
that Farmers will continue to market policies with
non-smoking
discounts after the acquisition. BATUS was aware
that Farmers
offers non-smoking discounts to its policyholders
when iL first
evaluated Farmers and determined to offer $4.5
billion to acquire
the company, and BATUS has repeatedly stated that
Farmers will be
free to continue to market insurance discounts for
non-simokers
after the acquisition. On that basis, hearing
officers found in
California, Arizona, Ohio and Idaho that BATUS
would continue
The Brief filed by the Staff notes that it bases
ir::;
objections to the admission of transcripts of
earLi-cr
proceedings in other states on concern that "tile
scope of
inquiry in Texas is much more restricted."
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Farmers' non-smoker discounts after the
acquisition.2 The record
testimony of BATUS' witnesses on this issue is
undisputed.
Moreover, there is nothing extraordinary or
incompatible
about ownership of an insurance company by a firm
that also has an
interest in a tobacco company. Loews Corporation,
the parent of
Lorillard, Inc., owns over 80% of CNA Insurance
Company. Franklin
Life Insurance is wholly owned by American Brands,
which also owns
American Tobacco Company. Both CNA and Franklin
offer nori-smcking
policies. Both have continued to do so after they
were acquired
by firms that also have an interest in the tobacco
industcy. In
fact, B.A.T's existing insurance subsidiaries,
Eagle Star and
Allied Dunbar, already offer similar discounts for
non-smokers.
Indeed, they began offering such policies after
their acquisition
by B.A.T.
2 According to the findings in Idaho:
Their managing officers have consistently stated
that
they hoped to continue existing management arid
business
practices, including "non-smoking" discounts in
their
insurance sales policy and in their insurance
policies.
The evidence is that for competitive reasons alone
such
discounts are essential:and would not be
discontinued.
All life insurance companies in the United States
now
offer such discounts. Farmers Insurance Group was
a
pioneer in this area. Eagle Star offers
non-smoking
discounts in the United Kingdom, New Zealand and
Australia where it conducts its principaL
businesses.
I conclude that BATUS, if it acquires F~r~ers,
ould do
nothing to lessen the company's competitive
position in
the insurance market and would continue
iic;i-sinoking
discounts.
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Second, Farmers' senior executives do not dispute
the
competence, trustworthiness, experience, and
integrity of those
persons who would control the operation of Farmer3
after the
acquisition. Farmers' contrived integrity
arguments are creations
of counsel and are contradicted by the testimony
of Farmers'
senior executives. The senior management of
Farmers, who have
failed to appear in a single state thus far,
freely acknowledge
the integrity and competence of BATUS and B.A.T.
Rcbert A. Brown,
one of Farmers' directors, testified that "B.A.T
is a welL-
regarded company in the U.K." and that his
impression of B.A.T's
management is that they are "reputable, able
people." Indeed,
Farmers' Chairman Denlea. has described B.A.T's
management as
"ethical people." Farmer's investment bankers,
First Boston
Corporation, likewise praised B.A.T's management
in a report
submitted to Farmers' board. First Boston extolled
B.A.T's
outside directors, acclaiming that they are a
"very stellar group
of individuals with long histories of leadership
in the (I.K.
business community and government." First Boston
also commented
favorably -on B.A.T's executive directors. The
int-agrity of B.A.T
and BATUS' management is not an issue to Farmers'
management or to
Farmers' advisors, and the testimony of a
scientist who worked for
a B.A.T subsidiary can add nothing of relevance
fcr the
Commissioner's consideration on this issue.
Third, Farmers' arguments about possible future
products
liability judgments are extremely speculative.
Al~houqh Farmers'
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disc:7sry requests seek to turn this proceeding
into a pr:_`uct
liab:.__-_-_*Y trial, there is no basis for
Farmers' speculaclz:~ about
BATUS' future financial condition. There is no
support f:r
Farmer-r' contention that BATUS will suffer future
material
liab-,-'::ies as a result of product liability
claims againz: its
subs-' iary, Brown & Williamson Tobacco Company.
Further, :here is
no su:::rt for the claim that such future material
liabi!:.:_ies, if
any were to occur, would have any effect on the
financial
stahil:-y of another BATUS subsidiary such as
Farmers. -1 - -- ~.'
claims '-lave been rejected as irrelevant or
speculative under the
criter:a of the Holding Company Acts. The Arizona
and Was-Zington
Insur=_zze Departments totally excluded testimony
regarding-
poten::sl tobacco liability. (See Order of Arizona
Depar:=ent of
Insur=--=e dated May 3, 1988, attached as Exhibit
B; Order :a
Pre-:-:earing Conference of Washington Office of
Insurance
CommiESIoner dated July 11, 1988, attached as
Exhibit C). The
heari= officers in California, Idaho and Ohio also
fouri-I :.hat
such e7idence was too speculative. The California
Depart~:.erlt,
after '--earing Farmers' speculation, held that:
The potential liabilities of BATUS'
subsidiary, Brown & Williamson, as a
result of product liability litigation
are speculative at this time. The
evidence did not establish that the
present or prospective financial
condition of B.A.T or BATUS are such as
might jeopardize the financial stabiLit,,
of the insurer or prejudice the interest
of its policyholders.
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The California Department's finding was rendered
after the
Cipollone 7er:~ict about which Farmers had
predicted so much:
The panel is not unmindful of the news
reports during the week of June 13, 1988,
that the jury in a New Jersey Federal
District Court case (Cipollone) found
liability against the cigarette
manufacturer and awarded $400,000
damages.
Farmers still attempts to make much of the fact
that the jury
in Cipollone returned a verdict of $400,000
against Liggett Group,
one of the three defendant tobacco companies. Far
from supporting
Farmers' conzentions, the jury's verdict in
Cipollone
substantially undercuts Farmers assertions and
demonstrates the
speculative nature of their predictions. The jury
refused to
award damages to the smoker, Ms. Cipollone. The
jury expressly
rejected all claims against all defendants for
fraud, conspiracy,
and punitive damages. (See Cipollone verdict
attached as
Exhibit 19 to Farmers' brief).
Farmers also mischaracterizes the Cipollone
directed
verdict opinicn, issued after the plaintiff's case
was complete,
before the defendants presented any evidence, and,
of course,
before the jury ruled. After defendants presented
their case, the
jury rejected all claims against all defendants,
except for a
single claim for breach of express warranty based
on specific
advertisemen:s from the 1950's against Liggett.
Id. These
warranty cla-;=.s are specific to each brand of
each manufacturer
and each invclve issues of proximate cause,
reliance on the
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warranty, timely filing of the claim within the
statute of
limitation, and preemption of all claims based on
advertising
after 1966.
Farmers' argument regarding a report by the staff
of the
Federal Trade Commission for the proposition that
"B.A.T and its
subsidiary corporations engaged in a marketing
effort simiLar to
that which led to the finding of liability in
Cipollone" is
another example of Farmers' fast and loose play
with the facts.
(Brief at 21). For example, the staff report was
rejected by the
Federal Trade Commission. Indeed, as Farmers
stipulated in Chio,
the Chairman of the Federal Trade Commission
stated that the
report provided no basis for any action against
Brown &
Williamson. Moreover, the documents reviewed in
the FTC staff
report were all from the 1970's and could not
provide a basis for
liability, since any claim based on advertising
after 1966 is
preempted by the Cigarette Labeling Act.3
The fact that Cipollone is not the watershed case
for
plaintiffs has been quickly established. Within a
few weeks of
the Cipollone verdict, a jury in Philadelphia
returned a
defendant's verdict in the most recent tobacco
product liability
case. Girton v. American Brands, slip op., No.
85-7100 (E.D.Pa.,
June 24, 1988). Like Cipollone, the Girton case
involved a claim
3 Palmer v. Liggett GrouD, Inc., 825 F-2d 620 (Ist
Cir.
1987)(claims based on advertising after 1966 are
preempted);
Stephen v. American Brands, Inc., 825 F.2d 312
(11th Cir.
1987)(same); Cipollone v -'Et Group, Inc., 789
F.2d 181
Ligge
(3 d Cir. 1986)(same).
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that a former smoker was entitled to recover
damages as a result
of a tcbacco manufacturer's failure to warn of the
risk of smoking
prior to 1966. After a three-week trial, the jury
deliberated for
only four hours before returning a verdict in
favor of the
defendant, American Brands. These verdicts
demonstrate that,
contrary to Farmers' speculations about the
future, jurors in
tobacco product liability cases remain unlikely to
return verdicts
in favcr of smokers.
Fourth, Farmers' arguments are no more than
"accusations, insinuations and suspicions." Dr.
Green has
consistently advised B.A.T that he does not wish
to be involved in
these proceedings. Farmers so advised the Kansas
hearing officer
on July 22, 1968. This followed a conference call
on July 18,
1988 among Dr. Green, counsel for Farmers, and
counsel for B.A.T
durina which Dr. Green asked Farmers to advise the
Kansas hearing
officer that lie had no desire to become involved
in these
proceedings. Farmers' assertions about what Dr.
Green would or
would not state are made without identifying any
factual basis.
Indeed, during that conference call, Dr. Green
stated to Farmers
that even if he were to appear Farmers ahould not
assume that his
testimony wouid be favorable tu it.
Astonishingly, knowing full well that Dr. Green
has no
desire or intention to participate in these
proceedings, Farmers
now ma.,es wild and unsubstantiated "accusations"
and
insinuat ions" about Dr. Green's purported
testiniony. Apparently,
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although Farmers was prepared to respect Dr.
Green's wishes in
Kansas, it now acts contrary to his wishes in
Texas and, in a
desperate attempt to persuade the Contmissioner to
order Dr. Green
to appear against his express wishes, has made a
series of
unsupported speculations about what Dr. Green
might say.
There also is no basis in fact or logic for
Farmers'
assertion that the testimcny of a former research
scientist in the
English tobacco subsidiary of B.A.T would be
probative on the
issue of whether its non-smoker discounts would be
continued after
the acquisition. In fact, Dr. Green retired from
British American
Tobacco Company over nine years ago and five years
before B.A.T
acquired an interest in an insurance company.4
Similarly, there
is no basis on which Farmers can support their
allegations that
Dr. Green, a retired scientist in England, could
have relevant
testimony concerning Brown & Williamson's
marketing in the United
States.
Farmers' conjecture that Dr. Green might give
testimony
about activities of a B.A.T subsidiary in England
that would
somehow demonstrate that Brown & Williamson might
be subject to
unfavorable verdicts in the United States at some
unspecified time
in the future, which then might resuit in the
insolvency of Oz,:~-.n
& Williamson, which then might result in the
insolvency of BATUS,
which then might result in a threat to the
financial stability of
4 B.A.T first acquired an insurance company wish
its
acquisition of Eagle Star in January, 1984.
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Farmers, is simply too speculat-47e to merit the
Commissioner's
attention.
Finally, to utilize Dr. Green to explore what
research
B.A.T did or did not do on the subject of smoking
and then to pit
his vie. of what some research "proved" or did not
"prove" against
the current B.A.T management on that subject does
not relate to
issues of this hearing. Such a debate would call
upon each side
to embark on a battle of the experts many miles
from the inquiry
into statutory standards to be met in Texas. The
Department
should not permit Farmers to set out on that path.
II. THE COMMISSIONER HAS NO AUTHORITY TO COMPEL
DR. GREEN'S
ATTENDANCE.
A. Farmers' Request for Discovery Through The
Doposition of
Dr. S.J. Green Is Defective Under Texas Law.
In alleging that, as a matter of law, Farmers has
the
right to require the Commissioner to issue a
commission to take
the deposition of any B.A.T witnesses, Farmers
ignores two
important factors which must be present before the
Commissioner is
authorized to grant a commission. First, the
Commissioner must
have the authority to grant the commission.
Second, the
Commissioner has broad discretion to limit the
scope of discovery,
particularly where such discovery would result
only iii I'vL:elevant,
immaterial, or unduly repetitious evidence.
Neither the Administrative Procedure and Texas
Register
Act ("AFTRA") nor the Texas Insurance Code
authorizes the
Commissioner to issue a commissIcn to take the
depositions or
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require the attendance at the hearing of persons
who reside
outside the State of Texas. Farmers states that
"no word of
limitation appears that the deposition take place
within the state
or that the witness should be deposed in Texas."
However, both
the APTRA as well as the Texas Insurance Code
specifically provide
that the jurisdiction of the Commissioner is
limited to the
boundaries of the state. APTRA, subsection 3(l)
specifically
defines "agency" as "any state board, commission,
department, or
officer having statewide jurisdiction. Further,
Texas
Insurance Code article 1.19-1, a provision
expanding on the rights
of the Commissioner to issue subpoenas,
specifically provides that
the Commissioner or board has statewide subpoena
power and
may compel attendance and production of records
before the
Commissioner or board or a designee at his or its
office in
Austin, Texas, or at any other places as the
Commissioner or board
shall designate, including the offices of any
person."
The Commissioner has consistently refused to
violate his
jurisdictional bounds. To the knowledge of counsel
in this
matter, the State Board has never issued a
subpoena, or a
commission for the issuance of a subpoena to
require a party
.residing outside the State of Texas appear or
!:,,& Iepcsed for
purposes of an administrative hearing. Further, no
Texas case can
be found where any state agency's authority has
been expanded to
allow the issuance of subpoenas or commissions
outside the
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geographical boundaries of this state. In fact, in
the pre-
hearing conference held on July 25, 1988 in this
matter Farmers'
counsel, Mr- Fred Werkenthin, stated that %t1he
authority of the
Commission :o require witnesses from outside the
state as -- or
persons outside the state to attend as witnesses
is not clear."
F%;rther, the nature of administrative proceedings
is
such that urless the legislature specifically
grants the
Commissioner authority to take depositions out of
state, the
Commissioner does not have that authority. "The
board can
exercise only such authority as is conferred upon
it by law in
clear and u=.mistakable terms and the same will
not be construed as
being conferred by implication." Board of Ins.
Comm'r v. Guardian
Life Ins. Co., 180 S.W.2d. 906, 908 (Tex. 1944).
See also, Key
Western Life Ins. Co. v. State Board of Ins., 350
S.W.2d 839 (Tex.
1961). Thus, any subpoena issued would be a
nullity and could nct
be enforced-
A4-ditionally, the Commissioner has broad
discretion to
limit the s:ope of discovery in this case. BATUS
currenzly has
motions before the Commissioner specifically
requesting that the
scope of th-'s hearing be limited~ and that
Farmers be denied
additional discovery, -and, in fact, requesting
that no additional
discovery should occur in this proceeding.
-a:.mers' counsel suggested at the pre-hearing
conference
that if the Commissioner does not have the power
to require
depositicnE cr attendance of witnesses at this
hearing, he at
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least has the power to "request" this testimony.
Again, the
Commissioner is given only the power to require
attendance of a
witness pursuant to AFTRA Article 6252-13a(14)(c)
and to require a
witness deposition to be taken pursuant to either
APTRA article
6252-13a(d) or Insurance Code article 1.19-1(a).
Neither of these
statutes provides for a "request" by the
Commissioner. Under
these provisions, the Commissioner must have the
right tc issue a
subpoena for attendance of a witness at a hearing
or issue a
commi_=Sion for a witness to be deposed before
Farmers has the
right to either of these forms of discovery.
S. Farmers' Request for Discovery Through The
DepcEition of
Dr. S.J. Green Is Defective Under English Law.
The English law and procedure relating to the
c~)taining
and pr-.vision of evidence to foreign courts and
tribunals is set
out in the Evidence (Proceedings In Other
Jurisdictions) Acts 1975
(the "Act") and Order 70 of the Rules of the
Supreme Court.
(Attac'-ed as Exhibits D and E).
In determining whether to grant a request from a
foreign
court cr trihunal, the English court that must
pass on an-i
discovery request has to-be satisfied on two
issues:
(i) that it has jurisdiction to order the
requested
evidence; and
(i-;) that it should in the circumstances exercise
its
inherent discretion to order the request.
The first precondition is satisfied if the
application
to the Englis` court is made by or on behalf of a
court or
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tribunaL exercising jurisdiction out of England
and Wales, and the
application relates to civil proceedings which
either have been
-4-.stituted before the requesting court or where
inst-'tuticn is
ccntemplated, Section l(b) of the Act.
The Court of Appeal in Re State of Norway's
Aonlication
(No.2) Times, January 8, 1988, held by a majority
that the
ex-zressicn "civil proceedings" had to be
interpreted in an
-4-ternational sense (civil law rather than common
law), and that
f--r a distinction between civil matters and other
ma--ters it was
ne=essary to resort to the distinctions in civil
law countries
he~:ween private and public law. The judges in
their decision took
the approach that it was their determination as to
the nature of
the proceedings that was material, not that of the
requesting
ccurt.
Since the present investigation is a matter of
public
rather than private law and it involves the
application of
aci=inistrative law for administrative remedies,
it dces not fall
within the definition of civil proceedings in the
Ac= and Order
70. Therefore, the English court would not have
jurisdiction to
grant Farmers' r;quest.
With respect Lo iLs lnher.nt discretion, the court
will
nc: exercise such discretion and grant the foreign
"court's"
re-quest if it characterizes the substance of that
request to be
frivolous, vexatious or an abuse of the process of
the court. In
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Re Westinghouse Electric Corporation Uranium
Contract, (1978) AC
547 (per Lord Diplock).
Farmers' request for a deposition of Dr. Green
must be
characterized as frivolous, vexatious and an abuse
of the process
of the Department, especially since requests for
Dr. Green's
deposition and similar discovery have been denied
by every other
state that has considered it. The frivolous nature
of this
request is even more striking given the fact that
the British
government has twice approved B.A.T as fit and
proper to acquire
an insurance company. As stated above, evidence
relating to his
research into the health impact of tobacco
products is totally
irrelevant to the issues to be determined by the
Commissioner.
In addition, Dr. Green, who is a third party to
this
proceeding and not employed by 3.A.T, has stated
to counsel for
Farmers and B.A.T that he does not wish to be
involved in these
proceedings in any way, In Seyfana v. G.D. Searle
& Co.. (1973) 1
QB 148, the court exercised its discretion and
refused to order an
expert to give evidence against his wishes in a
case where he had
no current connection with the facts or history of
the matter in
issue. In view of Dr. Green's expressed desire not
to appear as a
witness and the total to the Wiatter in issue,
Seyfang
provides direct authority for the denial of
Farmers' request.
Further, English courts distinguish between
evidence
which is requested for the purpose of an actual
trial, and that
which is essentially in the nature of pretrial
discovery, and may
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lead to the discovery of admissible evidence. The
English court
will resist granting discovery where the purpose
of the request is
not for proof at a foreign trial but is
essentially a "fishing
expedition." Re Westinqhouse Uranium Contract
(1978) AC 547;
Radio Corporation of America v. Rauland (1956) 1
QC 214. It is
apparent from Westinghouse that the exclusion of
this form of
discovery from the Hague Convention and the Act
applies to oral as
well as documentary evidence. Since the purpose of
Farmers'
request is to determine whether there is evidence
relevant to the
issues before the Commissioner, the English court
required to
approve the request would also reject it on this
ground.
CONCLUSION
Farmer3 makes no showing either that Dr. Green's
testimony is in any way relevant to the
Commissioner's inquiry or
that the Commissioner is authorized to issue
process for his
attendance. This latest effort to distract the
Commissioner from
the statutory standards is, therefore, without
basis and should be
denied.
Respectfully submitted,
-Thompson, Cue, Cousins & Irons
By 1~~ 6. ~
ro~ A,
David B.
200 Crescent Ct.
llth Floor
Dallas, TX 75201-1840
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Heath, Davis & McCalla, P.C.
By '9'//& 2~~
Will 0. Davis
200 Perry-Brooks Bldg. Attorneys for BATUS, Inc.
and
Austin, Texas 78701 B.A.T Industries, p.l.c.
Of counsel:
Richard C. Cole
Dean Hansel
LeBOEUF, LAMB, LErBY & McRAE
520 Madison Avenue
New York, New York 10022
(212) 715-8000
Ronald S. Rolfe
Rory 0. Millson
CRAVATH, SWAINE & MOORE
One Chase Manhattan Plaza
New York, New York 10005
(21-2) 428-1000
Additional Counsel for
BATUS, Inc.:
Joseph R. Bankoff
Gordon A. Smith
Daniel J. King
KING & SPALDING
2 EOO Trust Company Tower
Atlanta, Georgia 30303
(404) 572-4600
Ur
C,
Ic
BAT Industries document for Province of British
Columbia 5 November 1999