CIVIL DOCKET FOR Forsyth v. MPAA, Apr 28-29, 2016

April 29, 2016 7:42 pm by Gene Borio

Date Filed # Docket Text

04/28/2016 30 STIPULATION WITH PROPOSED ORDER /Stipulation And [Proposed] Order Regarding Page Limits For Briefing On Defendants’ Anti-Slapp Motion And Motion To Dismiss filed by Motion Picture Association of America, Inc., Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. (Klaus, Kelly) (Filed on 4/28/2016) (Entered: 04/28/2016)

04/29/2016 31 MOTION to Strike 1 Complaint, Defendants’ Notice of Motions and 1 Special Motion to Strike Pursuant to California Anti-SLAPP Statute, Cal. Civ. Proc. Code Section 425.16 et seq., or, in the alternative, 2 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6); Memorandum of Points and Authorities filed by Motion Picture Association of America, Inc., National Association of Theatre Owners, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. Motion Hearing set for 6/9/2016 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 5/13/2016. Replies due by 5/20/2016. (Attachments: # 1 Proposed Order [Proposed] Order)(Klaus, Kelly) (Filed on 4/29/2016) (Entered: 04/29/2016)

04/29/2016 32 Request for Judicial Notice re 31 MOTION to Strike 1 Complaint, Defendants’ Notice of Motions and 1 Special Motion to Strike Pursuant to California Anti-SLAPP Statute, Cal. Civ. Proc. Code Section 425.16 et seq., or, in the alternative, 2 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed byMotion Picture Association of America, Inc., National Association of Theatre Owners, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 31 ) (Klaus, Kelly) (Filed on 4/29/2016) (Entered: 04/29/2016)

04/29/2016 33 MOTION to Strike Complaint filed by National Association of Theatre Owners. Motion Hearing set for 6/9/2016 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 5/13/2016. Replies due by 5/20/2016. (Marshall, Kenneth) (Filed on 4/29/2016) (Entered: 04/29/2016)

FORSYTH v MPAA: STIPULATION AND [PROPOSED] ORDER REGARDING PAGE LIMITS FOR BRIEFING ON DEFENDANTS’ ANTI-SLAPP MOTION AND MOTION TO DISMISS, Apr 28, 2016

April 29, 2016 3:28 pm by Gene Borio

The PDF is Here

EXCERPT:

in order to minimize duplication of efforts and multiple, overlapping memoranda at each of the motion, opposition, and reply stages, the Parties have agreed, subject to the Court’s approval, to file consolidated briefs on both motions to the extent possible and to expand the otherwise applicable page limits for the total briefing as follows:

1. On or before April 29, 2016, Defendants shall file briefs in support of their simultaneously filed Anti-SLAPP Motion and Motion to Dismiss that, combined, shall not exceed 40 pages.

2. Plaintiff shall file a single brief in opposition to said Motions that shall not exceed 40 pages.

3. Defendants shall file reply briefs in support of said Motions that, combined, shall not exceed 20 pages.

4. After Defendants have filed their opening briefs on April 29, 2016, the Parties will meet and confer to discuss a briefing schedule for Plaintiff’s opposition and Defendants’ reply and, if necessary, an increase in Plaintiff’s and Defendants’ page limits. The Parties expect to submit a separate Stipulation and [Proposed] Order regarding a briefing and hearing schedule following those meet-and-confer discussions.

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USA v. PHILIP MORRIS USA, et al DOCKET, Apr 19-28, 2016

April 28, 2016 4:03 pm by Gene Borio

04/19/2016 6194 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK, TOBACCO-FREE KIDS ACTION FUND. Attorney Howard M. Crystal terminated. (Crystal, Howard) (Entered: 04/19/2016)

04/19/2016 6195 ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached). Signed by Judge Gladys Kessler on 4/19/16. (CL) (Entered: 04/19/2016)

04/28/2016 USCA Case Number 16-5101 for 6191 Notice of Appeal to DC Circuit Court, filed by ALTRIA GROUP, INC., R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA INC., COMMONWEALTH ALTADIS, COMMONWEALTH BRANDS INCORPORATED, ITG BRANDS, LLC. (zrdj) (Entered: 04/28/2016)

6195: ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached)

April 19, 2016 6:21 pm by Gene Borio

The PDF is Here

EXCERPT:

Upon consideration of the Joint Motion for Superseding Consent Order Implementing the Corrective Statements Remedy, and the entire record herein, it is hereby ORDERED that:

The corrective statements remedy under Order #1015, published as United States v. Philip Morris USA Inc., aff ‘d in part & vacated in part…is hereby MODIFIED as set forth below:

PART 1: REVISED TEXT FOR CORRECTIVE STATEMENTS

As required by the Court of Appeals in United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015), and the memorandum opinion accompanying Order #62-Remand, the text of the Corrective Statements shall be as follows for Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA:

A. Adverse Health Effects of Smoking

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA 1 to make this statement about the health effects of smoking.

Here is the truth:

• Smoking kills, on average, 1,200 Americans. Every day.

• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.

• Smoking causes heart disease, emphysema, acute myeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder, and pancreas.

• Smoking also causes reduced fertility, low birth weight in newborns, and cancer of the cervix.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA to make this statement about the addictiveness of smoking and nicotine.

Here is the truth:

. . .

VI. Additional Provisions

1. . . . This Superseding Consent Order does not resolve the outstanding issue of Corrective Statements in retail point-of-sale displays.

2. The Corrective Statement formats specified above are intended to be comprehensive. No Defendant or ITG Brands shall alter, modify, or add to the specified elements of these formats, and no additional text, images, voice-over or other elements may be included.

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PHILIP MORRIS v FDA: DOCKET 4/19/16

April 19, 2016 5:55 pm by Gene Borio

Date Filed # Docket Text

04/19/2016 6194 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK, TOBACCO-FREE KIDS ACTION FUND. Attorney Howard M. Crystal terminated. (Crystal, Howard) (Entered: 04/19/2016)

04/19/2016 6195 ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached). Signed by Judge Gladys Kessler on 4/19/16. (CL) (Entered: 04/19/2016)

LORILLARD v FDA: DOJ RESPONSE TO PETITION FOR REHEARING EN BANC, APR 15, 2016

April 15, 2016 4:39 pm by Gene Borio

The PDF is Here

EXCERPT:

The Family Smoking Prevention and Tobacco Control Act of 2009 directed the Food and Drug Administration to establish the Tobacco Products Scientific Advisory Committee to provide advice to the agency, including, as its first order of business, preparation of a report addressing the impact of menthol cigarettes on tobacco use. FDA established the committee pursuant to the Federal Advisory Committee Act, and, in 2011, the unanimous committee issued its Menthol Report.

Plaintiffs are cigarette manufacturers who claim that FDA should have determined that three committee members had conflicts of interest. A panel of this Court concluded that plaintiffs lack Article III standing because they failed to produce evidence of an imminent and non-speculative injury-in-fact. The panel applied settled standing principles to the summary judgment record in this case and did not speculate whether other private parties may bring suits of this kind.

The panel decision was correct and does not conflict with any decision of the Supreme Court, this Court, or any other court of appeals. Indeed, plaintiffs identify no case in which a private party has sought to enforce the federal ethics rules. No further review is warranted.

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PHILIP MORRIS v FDA: DOCKET 4/7/16-4/15/16

April 15, 2016 4:07 pm by Gene Borio

04/07/2016 39 Corporate Disclosure Statement by AMERICAN SNUFF COMPANY, LLC, R.J. REYNOLDS TOBACCO COMPANY, SANTA FE NATURAL TOBACCO COMPANY, INC.. (Brown, Mark) (Entered: 04/07/2016)

04/15/2016 Set/Reset Deadlines/Hearings: Oral Argument set for 6/9/2016 at 10:00 AM in Courtroom 10 before Judge Amit P. Mehta. (cdw) (Entered: 04/15/2016)

IN RE: SANTA FE NATURAL TOBACCO COMPANY MARKETING AND SALES PRACTICES LITIGATION: TRANSFER ORDER

April 14, 2016 7:27 pm by Gene Borio

The PDF is Here

EXCERPT:

The litigation consists of five actions pending in four districts, as listed on Schedule A. Since the filing of the motion, the Panel has been notified of eight related actions in four additional districts. 1 This putative class action litigation concerns the labeling and advertising of Natural American Spirit cigarettes as “natural” and “additive free” in an allegedly false and misleading manner.

Defendants, Santa Fe Natural Tobacco Company, Inc., and Reynolds American, Inc., oppose centralization and, alternatively, agree that the District of New Mexico is an appropriate transferee forum.

. . .

Common factual issues include: (1) the ingredients in Natural American Spirit cigarettes; (2) the messages conveyed to consumers by the labeling and advertising, including whether the labels falsely convey a message that the products are healthier or less harmful than other cigarettes; and (3) defendants’ corporate policies and decision making as to the marketing of Natural American Spirit cigarettes.

. . .

We are persuaded that the District of New Mexico is an appropriate transferee district for this litigation. Defendant Santa Fe Natural Tobacco Company has its headquarters in this district, and it represents that key witnesses reside there, including employees and decision makers tasked with the development and execution of product labeling, marketing and advertising.

. . .

Finally, centralization before the Honorable James 0. Browning allows us to assign this litigation to an able and experienced jurist who has not had the opportunity to preside over an MDL. We are confident he will steer this litigation on a prudent course.

IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the District of New Mexico are transferred to the District of New Mexico and, with the consent of that court, assigned to the Honorable James 0. Browning for coordinated or consolidated pretrial proceedings.

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USA v. MO APPEAL: APPELLANT’S REPLY BRIEF, Apr 14, 2016

April 14, 2016 4:43 pm by Gene Borio

The PDF is Here

EXCERPT:

I. RJRT is entitled to relief under Federal Rule of Civil Procedure 60(b)(4).

The district court lacked jurisdiction to require B&W Tobacco to publish corrective statements on television because Section 1964(a) of title 18 limits the court’s jurisdiction to preventing and restraining RICO violations. And ordering a non-existent entity such as B&W Tobacco to publish corrective statements on television or an existent entity such as RJRT to publish such statements twice does not advance that goal. Against this straightforward argument, the Government and Intervenors attempt to restrict Rule 60(b)(4) to orders exceeding subject-matter or personal jurisdiction. But they cite no case for that proposition, and this Court and others have squarely held that “a judgment may be void for purposes of Rule 60(b)(4) if the court, although having jurisdiction over the parties and subject matter, entered a decree not within the powers granted to it by the law.” . . .

The Government and Intervenors also argue that this Court’s clear holdings that Section 1964(a) limits jurisdiction are “driveby” jurisdictional rulings. But this Court’s pages-long analysis of the limits on the district court’s power cannot be cast away, and, in any event, is correct. See Disgorgement Decision, 396 F.3d at 1197-1202. Finally, the Intervenors claim that RJRT’s challenge has been waived by inaction or foreclosed by the terms of its merger with B&W Tobacco. But Defendants raised and prevailed on this issue in their very first merits appeal. In any event, Rule 60(b)(4) contains no time limit and parties may not enlarge federal court jurisdiction through waiver or otherwise.

II. Alternatively, RJRT is entitled to relief under Rule 60(b)(6).

Requiring RJRT to run a second, duplicative set of corrective statements on television is unjust. The Government and Intervenors’ contrary arguments are premised on a fundamental error, namely, that RJRT automatically inherited the television corrective-statements obligation that the district court imposed on “Brown & Williamson.” That position conflicts with this Court’s view in the Remedial Decision that such obligations automatically accrued not to RJRT, but to BWH, which was subsequently dismissed from this case. RJRT did not and could not inherit obligations imposed on “Brown & Williamson” in 2006 by acquiring assets from “B&W Tobacco” in 2004. The LTC merger, moreover, confirms RJRT’s position, because unlike the B&W Tobacco merger, it was subject to the district court’s new requirement, in the remedial order entered after the B&W Tobacco merger, that transfers of assets be accompanied by transfers of obligations. The Government and Intervenors finally urge that RJRT should have appealed this issue before now. But Defendants did. They appealed this issue immediately and prevailed in this Court’s Remedial Decision. It was not until mediation that RJRT learned that the Government and Intervenors viewed that victory as illusory.

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6193-11: Proposed ORDER # ___ -Remand SUPERSEDING CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS REMEDY, Apr 8, 2016

April 8, 2016 7:56 pm by Gene Borio

The PDF is Here

EXCERPT:

PART 1: REVISED TEXT FOR CORRECTIVE STATEMENTS

As required by the Court of Appeals in United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015), and the memorandum opinion accompanying Order #62-Remand, the text of the Corrective Statements shall be as follows for Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA:

A. Adverse Health Effects of Smoking

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA1 to make this statement about the health effects of smoking.

1 For all statements, wherever the company names are listed they will appear in the sequence detailed in the substantive specifications below.

Here is the truth:

• Smoking kills, on average, 1,200 Americans. Every day.

• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.

• Smoking causes heart disease, emphysema, acute myeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder, and pancreas.

• Smoking also causes reduced fertility, low birth weight in newborns, and cancer of the cervix.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA to make this statement about the addictiveness of smoking and nicotine.

Here is the truth:

• Smoking is highly addictive. Nicotine is the addictive drug in tobacco.

• Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.

• It’s not easy to quit.

• When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

C. Lack of Significant Health Benefit from Smoking “Low Tar,” “Light,” “Ultra Light,” “Mild,” and “Natural” Cigarettes

D. Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery

E. Adverse Health Effects of Exposure to Secondhand Smoke

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