Name: ____________________Keith LeBlanc________________________
Week 10 Law and Popular Culture
Chosen Review Work:
“The Insider” (1996) a film by Director Michael Mann.
Plot Summary:
“The Insider" is by far, one of the best motion pictures of its type: a combination of thriller and
documentary. This film – at least partially true to actual events -- takes the viewer into a world of
multiple aspects of big corporate behavior – in this case the powerful environments of the USA
tobacco empires, and one of the largest combines of television entertainment, news and investigative
reporting. Personal, professional and business ethics are the issues presented at every turn, and the
revelations of corporate decision making involved are not very reassuring.
Jeffrey Wigand is a central character in the film (played by Russell Crowe) and shares that role with
Lowell Bergman (Al Pacino). We pick up Wigand in 1993 as a just-dismissed executive in charge of
chemical research at the Brown & Williamson tobacco corporation (B&W). He has held that
position since 1989. Bergman, a key producer at CBS News, is well known for his work on popular
“60 Minutes” with Mike Wallace and others. He also has a good reputation as a reporter who can
be trusted, as does Wallace. The program’s emphasis on investigative journalism brings Bergman
into Wigand’s life on a tip from a source that there is a “real story here”.
From the beginning of their relationship, the driven and very ethical Bergman attempts in good faith
to learn what caused a man like Wigand to be tossed out of such a responsible position. Wigand
finally reveals that his hesitancy to reveal anything is based on fear of reprisal from B&W, given the
severity of the conditions of his severance, including an strict confidentiality agreement. The idea of
appearing on a program like “60 Minutes” is absolutely terrifying to the man.
B&W (not a likable bunch of characters as portrayed) make the mistake of not leaving Wigand alone
– they call him in and present an even more oppressive confidentiality agreement, and threaten him
roundly with loss of family healthcare coverage, the agreed upon severance payments, referral to IRS
and other agencies for investigation, and unspecified related trouble. Wigand is insulted, infuriated,
and though more afraid than before begins warming to Lowell Bergman’s entreaties to “tell his
story”. Bit by bit, Wigand reveals what he learned in his employment at B&W about falsification of
scientific studies and denial of health problems associated with tobacco products. Thus begins a
drawn out and chilling battle of “big tobacco” versus “everyone else” with the focus on this one
man, Jeff Wigand, who is at this point very much regarded by the tobacco industry as a very serious
“whistleblower” threat. If his information is revealed to the public and government agencies like
the FDA, false testimony and fraudulent test products will be exposed, with drastic negative
consequences for numerous tobacco corporate executives.
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Eventually Bergman and Wallace of “60 Minutes” find a way to tape a segment with Wigand fully
disclosing the obviously illegal practices at B&W and other tobacco corporations – but at this point
the CBS corporate legal machine comes to life, and arguments begin within CBS parent and the
News division regarding massive potential liability from big tobacco if Wigand’s “60 Minutes”
segment is broadcast. The term “tortious interference” is used to describe how CBS will be
portrayed. Meanwhile, Wigand’s wife, completely unhinged by the scary happenings, asks Wigand
to leave for the family’s safety and she begins divorce proceedings.
Despite the awful struggle Wigand has been faced with, Mike Wallace and the other key CBS News
executives give in to the assumed massive potential liability from the tobacco interests. They do not
air Wigand’s actual interview. Disgusted, Bergman uses his connections to get other media outlets
(NYT, WashPost) to expose the CBS handling of the case, and uncovers an internal issue of
integrity versus profits from a potential purchase of all of CBS. This publication of the entwined
actions and motives of CBS is sufficient to get enough of Wigand’s story out to begin the downfall
of the tobacco industry with many restrictions on products, marketing and distribution.
Westinghouse completes the purchase of CBS in 1995. Though Wallace has a change of heart and
finally in 1996 does air the complete story on “60 Minutes”, Bergman leaves CBS News for new
horizons. Wigand’s future is uncertain. He is teaching chemistry at a local high school.
Issues of Law in This Film
The entire film revolves around personal and business ethics.
Jeffrey Wigand feels discriminated against by his employer, with an unexplained and clearly wrongful
termination. However, he fears more retaliation if he “tells his story” to anyone. Since he is 50
when this occurs, and given the oppressive terms of his severance being linked to an unusually strict
confidentiality agreement, and the workforce size of CBS:
He is a member of a “protected class”.
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It appears that he could have made a Title VII claim of “intentional discrimination” against
B&W using a “disparate-treatment” framework. B&W would have had a difficult time actually
explaining WHY the very qualified head of their research group was fired without cause, and why
the strict confidentiality agreement was required to maintain his severance pay and continuation of
benefits after discharge.
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He could have filed a Title VII “retaliation” suit claiming that his discharge was retaliation
for beginning to raise questions about his treatment within B&W and his questioning the scientific
research behind the corporation’s products.
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He could likely have brought suit under ADEA and given the unexplained nature of the
termination, and similarly prevail.
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Whether he had an actual employment contract is not clear, probably not.
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The Whistleblower Protection Act (1989) might have provided another basis for a claim, but
that might have depended on when he joined B&W and later, whether B&W had publicized internal
policies regarding whistleblower protection (one suspects not).
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He probably had some basis for a libel claim against B&W and its legal advisors for
preparation and distribution of false or inaccurate claims about his personal life and history.
Of course, he was fearful of taking any of these actions.
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B&W (and other tobacco companies in collusion, and a number of law firms) were guilty of multiple
intentional violations of “corporate business ethics” and “professional ethics”.
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Knowing participation in ethics violations by CEO and other key management.
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Fraudulent advertising based on fraudulent research into products.
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Misrepresentation of research results to FDA and other federal and state health agencies.
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Collecting and widely publicizing untrue or inaccurate information about Dr. Wigand’s
personal history and affairs.
CBS/CBS News were guilty of intentional violations of “corporate business ethics” by suppressing a
legitimate, evidenced report of serious corporate misdeeds for profit motives. This was
compounded by disclosure that during this period, CBS was negotiating a sale of the network to a
combine of buyers, including B&W, Westinghouse and others. Potential very large stock gains were
involved, and this affected the decisions of every key CBS executive, legal counsel and others
holding stock options.
(In November 1998, after lengthy litigation, the tobacco industry and 46 states reached what is known as the Tobacco Master
Settlement Agreement (four states reached separate settlements). This group deal exempted the industry from legal liability for
the harm caused by tobacco use. In return, the tobacco companies agreed to make annual payments, in perpetuity, to the
states to fund anti-smoking campaigns and public health programs. The industry guaranteed a minimum of $206 billion over
the first 25 years. The actual use of these funds received by the various states remains controversial).
Personal Opinion of This Film
Simply put, this is one of the best films of its type ever produced. Highly recommended.
Hmmmmm …
Would I have done what Jeffrey Wigand did? Under those circumstances, at that age and with
family, probably not. The pressure to keep the family’s standard of living intact is strong. Wigand
had a personality, intelligence and experience that let him harbor a lengthy anger against B&W; that
kept him going when it seemed foolhardy to do so. Not everyone has such characteristics.
Would he do the same today in this employment environment? He says he would.
FIN
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