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P was organized under ERISA to provide health care benefits to their union members. P claimed that D engaged in a deceptive advertising campaign designed to mislead the public as to the true nature of cigarette smoking. P claimed that D actively concealed information that would have demonstrated the actual health risks and D's own ability to manufacture less addictive products. P alleged that these facts have not become known until recently and that P has spent tens of millions of dollars to provide medical services for its participants suffering from cigarette-related diseases. P pled common law fraud, and RICO violations and sued on its own right to recovery and not as a subrogation of its members. D filed a motion to dismiss, and it was not granted. D appealed.

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