6159 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. (Entered: 07/24/2015)

July 24, 2015 4:17 pm by Gene Borio

The PDF (794pp) is Here

[WARNING: This document contains

1. the entire USA v. Philip Morris et. al. (Case #99-2496) DOCKET from 1999 on, including all parties involved. (786 pp)

2. RJR’s 7/23/15 Notice of Appeal (previously posted Here)

3. Judge Kessler’s 5/28/15 ORDER #55-Remand (previously posted Here)

ie, nothing new.]

EXCERPT:

ORDER #55-Remand

Defendant R.J. Reynolds Tobacco Company (”RJR”) has filed a Motion for Relief From Certain Provisions of Order #1015 Pursuant to Fed. R. Civ. P. 60(b)(4) or, in the Alternative, 60(b)(6). . . .

There can be no question that this Court had jurisdiction when it issued its 2006 Remedial Order. Therefore, the corrective action statements included in that Order are not void. Finally, since the statements are not void under Rule 60(b )( 4) and the Court has already ruled that Defendants have waived their arguments under their alternative ground for relief, Rule 60(b )( 6), the Defendants have no other avenue for reconsideration — at this late date — of overturning the Court’s injunction ordering B&W Tobacco to air one television spot per week of the corrective action statements. In short, RJR’s attempt to turn its merits argument into a jurisdictional argument so that it can succeed under Rule 60(b)(4) fails, and its Motion shall be denied.

May 28, 2015

Gladys Kessler

United States District Judge

END EXCERPT

UNITED STATES’ PETITION FOR PANEL REHEARING on Corrective Statements 7/6/15

July 24, 2015 6:22 am by Gene Borio

The PDF is Here

EXCERPT:

The United States respectfully requests that the panel amend its opinion to clarify that the corrective statements at issue in this case may include the following introductory language:

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA to make this statement about the [statement topic].1 Here is the truth:

This Court made clear that the corrective statements may not refer to defendants’ deliberate deceptions regarding the proposed topics, but it did not specify exactly which portions of those statements must be removed. The government understands the defendants to agree that some form of introduction is necessary, but to consider the following elements impermissibly backward-looking under this Court’s opinion, either individually or in combination: (1) identifying the entities making the corrective statement (e.g., Philip Morris USA); (2) identifying the topics of the corrective statements (e.g., “the adverse effects of smoking”); and (3) identifying the bulleted statements as “the truth.” There is nothing in this Court’s opinion requiring the corrective statements to be presented anonymously or without context. To avoid further extending this “long-running” litigation, Panel Op. at 3, we respectfully request that the Court amend its opinion to clarify that defendants’ reading is mistaken.

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R.J. REYNOLDS TOBACCO COMPANY’S NOTICE OF APPEAL 7/23/15

July 24, 2015 5:21 am by Gene Borio

The PDF is Here

EXCERPT:

Notice is hereby given that Defendant R.J. Reynolds Tobacco Company, individually and as successor to Brown & Williamson Tobacco Corporation, hereby appeals to the United States Court of Appeals for the District of Columbia Circuit from Order #55-Remand of this Court (Dkt. No. 6147, entered May 28, 2015), denying Defendant R.J. Reynolds Tobacco Company’s Motion for Relief from Provisions of Order #1015 that Require Brown & Williamson Tobacco Corporation to Publish Corrective Statements on Television

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SUPPLEMENTAL DISCLOSURE OF DEFENDANT LORILLARD TOBACCO COMPANY’S CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS

June 30, 2015 2:42 pm by Gene Borio

The PDF is Here

EXCERPT:

We, the undersigned counsel of record for Defendant R.J. Reynolds Tobacco Company . . . certify that, to the best of our knowledge and belief, LTC has ceased to exist as a separate entity. For that reason, LTC has no companies, subsidiaries, or affiliates that have any outstanding securities in the hands of the public, nor does any company own at least 10% of the stock of LTC.

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Judge Kessler’s Status Hearing: What a Difference a Month Makes…

June 30, 2015 12:22 pm by Gene Borio

June 30, 2015. At the 20-minute hearing this morning, Judge Kessler wanted 2 issues addressed in light of the May 22, 2015 Court of Appeals ruling which struck down the self-vilifying language in the preambles of the corrective statements (The PDF is Here):

1. The new language; and

2. The formatting/placement, display, fonts, etc. (If in the final version, the sentence is shorter that before, for example, the DOJ would want the text in a newspaper ad, say, to expand to fill the same amount of space.)

Kessler began the hearing expressing her desire to have the parties’ briefs submitted by Aug. 1, hopefully preceded by the parties getting together to agree on most issues.

However, both sides had their own ideas of how to handle the issues, the DOJ’s taking one month or more, the Defendants’ taking 3 months and involving Special Master Levy.

Finally, seemingly fed up with the time the case has taken already, and with pleas about the rigors of adhering to a “summer schedule” ringing in her ears, Judge Kessler had pretty much heard enough. She said, basically, “Look, it’s ONE SENTENCE, you’re all lawyers, you could get this done in a DAY.”

So what happens now? Good question. Expect an order soon.

PS: All this would be precluded, of course, by any surprise appeal by the higher-ups at the DOJ (last date to appeal: Mon, 7/6).

PPS: Judge Kessler did mention one other “very complex” issue that has yet to be dealt with. Intervenors’ lawyer Howard Crystal noted that that issue was undoubtedly the Point of Sale displays of the corrective statements–which the convenience store industry is up in arms about.)

USA, DOJ, APPELLEES v. PHILIP MORRIS USA INC., ET AL., APPELLANTS (PDF) 5/22/15

June 30, 2015 12:15 pm by Gene Borio

The PDF is Here

EXCERPT:

The preamble might provide an effective—perhaps even the very best—means of curing consumer misconception and preventing consumer deception going forward. Were this an enforcement proceeding brought by the Federal Trade Commission, an action that permits remedies intended to “dissipate future effects of a company’s past wrongful conduct,” the preamble might well represent a proper exercise of the court’s remedial power. But this is a civil RICO case, and as we have explained, that statute empowers district courts to issue injunctions for one purpose and one purpose only: to prevent and restrain future RICO violations. Correcting consumer misinformation, which “focuse[s] on remedying the effects of past conduct,” is thus an impermissible objective under RICO. Seeking to prevent consumer deception is similarly impermissible because, although forward-looking, it focuses not on restraining the RICO violator, but on safeguarding consumers against RICO violations. . . .

For the reasons set forth above, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

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ORDER #57-Remand: the Parties shall appear at a Status Conference on June 30, 2015, at 10:45 a.m

June 21, 2015 9:24 am by Gene Borio

The PDF is Here

EXCERPT:

More than 8 years ago, this Court enjoined the Defendants from presenting any false or misleading information about cigarettes and smoking to the public, and ordered them to make corrective disclosures on five topics about which the Court found they had made fraudulent public claims. While the Court of Appeals upheld the substance of those five disclosures, it also concluded that the introductory language to them could not be justified because they “reveal nothing about cigarettes; instead, they disclose defendants’ prior deceptive conduct. Accordingly, they cannot be justified on the basis of [that Court’s] 2009 opinion.”United States v. Philip Morris USA Inc., No. 13-5028, 2015 WL 2445064, at *9 (D.C. Cir. May 22, 2015) (emphasis in original). The Court ruled that “[e]ven if the preambles [to the disclosures] would discourage cigarette manufacturers from falsely marketing cigarettes by arming consumers against misinformation, thus making RICO violations unprofitable[,] . . . ‘[s]uch a remedy [would] reach [] beyond the bounds of section 1964(a), which authorizes the district court to order injunctions [only] to prevent and restrain fraudulent statements about smoking and health and addic.tion. “‘ Philip Morris, 2015 WL 2445064, at *10 (quoting United States v. Philip Morris USA Inc., 566 F.3d 1095, 1149 (D.C. Cir. 2009)). However, “[t]he bulleted statements will achieve this goal because they ‘reveal[] the previously hidden truth about [the manufacturers’] products . . . .’ The preambles, however do no such thing and may not be justified on grounds of general deterrence.” Id. (emphasis in original).

In order to comply with the Court of Appeals’ remand for further proceedings in accordance with its Opinion, the Court hereby

ORDERS, that the Parties shall appear at a Status Conference on June 30, 2015, at 10:45 a.m., to discuss briefing and scheduling of future submissions.

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DOCKET for USA v. PHILIP MORRIS USA, et al Jun 9-Jun 21, 2015

June 21, 2015 8:43 am by Gene Borio

Date Filed # Docket Text

06/11/2015 6153 ORDER #57-Remand: the Parties shall appear at a Status Conference on June 30, 2015, at 10:45 a.m., to discuss briefing and scheduling of future submissions (see Order for details). Signed by Judge Gladys Kessler on 6/11/15. (CL) (Entered: 06/11/2015)

06/11/2015 Set/Reset Hearings: Status Conference set for 6/30/2015 10:45 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 06/11/2015)

06/15/2015 6154 NOTICE of Closing of Transaction by R.J. REYNOLDS TOBACCO COMPANY (Francisco, Noel) (Entered: 06/15/2015)

06/15/2015 6155 NOTICE REGARDING TRANSFER OF CERTAIN CIGARETTE BRANDS AND BUSINESSES TO ITG BRANDS, LLC PURSUANT TO ORDER #56 - REMAND by COMMONWEALTH BRANDS INCORPORATED, Commonwealth Altadis, ITG Brands, LLC (McCallum, Elizabeth) (Entered: 06/15/2015)

06/15/2015 6156 NOTICE of Appearance by Jeffrey A. Mandell on behalf of R.J. REYNOLDS TOBACCO COMPANY (Mandell, Jeffrey) (Entered: 06/15/2015)

DOCKET for USA v. PHILIP MORRIS USA, et al May 28-Jun 8, 2015

June 8, 2015 3:52 pm by Gene Borio

Date Filed # Docket Text

06/01/2015 6149 RESPONSE TO ORDER OF THE COURT re 6146 Order, filed by ALTRIA GROUP, INC., PHILIP MORRIS USA INC.. (Estrada, Miguel) (Entered: 06/01/2015)

06/04/2015 6150 RESPONSE TO ORDER OF THE COURT re 6146 Order, filed by UNITED STATES OF AMERICA, PUBLIC HEALTH INTERVENORS, LORILLARD TOBACCO COMPANY, ITG BRANDS, LLC, COMMONWEALTH BRANDS, INC., COMMONWEALTH-ALTADIS, INC., and filed by R.J. REYNOLDS TOBACCO COMPANY. (Francisco, Noel) (Entered: 06/04/2015)

06/08/2015 6151 ORDER #56-Remand granting 6142 the Unopposed Motion for Order Authorizing Transfer of Certain Cigarette Brands and Businesses to ITG Brands, LLC, Pursuant to Order #1015, Paragraph 20. Signed by Judge Gladys Kessler on 6/8/15. (Attachments: # 1 Exhibit A) (CL) (Entered: 06/08/2015)

06/08/2015 6152 MEMORANDUM OPINION to Order #56-Remand. Signed by Judge Gladys Kessler on 6/8/15. (CL) (Entered: 06/08/2015)

Exhibit A: ONSERT SPECIFICATIONS: RJR Brands & Lorillard Maverick Brand

June 8, 2015 3:47 pm by Gene Borio

The PDF is Here