Excerpt from argument on motion to compel before the Court of Chancery of the State of Delaware
| Source: American Legacy Foundation v. Lorillard Tobacco Company: argument on motions to compel, 2004. |
| THE COURT: Is it Lorillard’s position in this litigation that for the purpose of whatever happens in this case, you do not contest that your cigarette and other tobacco products contain urea? |
| LORILLARD: Urea is a naturally occurring substance in tobacco. We do not contest that fact. |
| THE COURT: Number two, do you add it to cigarettes, or have you ever added it to cigarettes or tobacco products? |
| LORILLARD: And we had said that we have not, Your Honor. |
| THE COURT: What I read was you said you didn’t add it to cigarettes. How about other tobacco products? Was that just an oversight or something? |
| LORILLARD: I do need to clarify that. The only tobacco Lorillard makes is cigarettes. They no longer make either chewing tobacco—they sold that awhile back. And they do not make cigars. If I’m correct, I believe that they only make cigarettes, and they do not add urea. As I mentioned, we are not going to come in on this ad or any other ad and say, “It is vilifying because it is false,” because we believe that that is irrelevant to the analysis. If the issue is to run down the truth of every statement made in every ad—I would like to show, if I could, Your Honor, two ads. |
| THE COURT: All right. You are not going to say it’s false, even though you believe it is false. |
| LORILLARD: We are not going to argue that falsity is relevant to the analysis. We are not going to come in to Your Honor and say, “Your Honor, that Dog Walker ad…” |
| THE COURT: You go to the next step and say that for the purpose of my analysis, I can assume that it’s true? |
| LORILLARD: Our view is, Your Honor, for the purpose of your analysis, we believe it’s irrelevant whether it’s true or false. We can not stipulate that statements that aren’t true are true. |
| THE COURT: You are not going to contest the truth or falsity of the statement made in the ad? |
| LORILLARD: We are saying it’s not relevant to the analysis. We are not going to come to the Court and argue that any of the facts in any of the ads are false. |
| THE COURT: As long as you understand that—given all that, in my opinion, I would say that you believe it isn’t true, but you are not contesting it, and that—you also believe that truthfulness is not relevant to the topic. But if I determine that truthfulness is relevant, I will then have to make an assumption for the purpose of my analysis of this one ad that the statement was true. |
| LORILLARD: I understand that, Your Honor. |