UNITED STATES’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF JUDGMENT

August 23, 2006 6:28 pm by Gene Borio

EXCERPT from DOJ’s Filing:

Defendants offer no legal support for their motion, and there is no reason for the Court to permit defendants to continue to engage in unlawful activity during the pendency of their anticipated motion for a stay pending appeal.

As the Court observed during the telephone conference initiated by defendants on August 18, 2006, none of the new, affirmative obligations in the Court’s Final Order take effect immediately. Defendants’ emergency motion therefore amounts to a request that the Court stay its injunction against acts of racketeering and false and misleading statements to the American public; it is a request that defendants be permitted to continue violating the law and attempting to deceive or mislead smokers and potential smokers, including young people. . . .

defendants have not identified any harm they will suffer in the absence of a stay pending resolution of their anticipated motion for a stay pending appeal, they have not raised any legitimate questions regarding the Court’s factual findings and judgment, and the Court’s findings of fact, entered after a nine-month trial, support the extraordinary harm that will be suffered by the public and the United States if defendants are not immediately enjoined from unlawful activity. For the foregoing reasons, defendants’ motion should be denied.

END EXCERPT

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Text follows of:

UNITED STATES’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF JUDGMENT

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, et al.,

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA INC.,

f/k/a PHILIP MORRIS INC., et al.,

Defendants.

Civil Action No. 99-CV-02496 (GK)

Next scheduled appearance: None Scheduled

_________________________________________

UNITED STATES’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF JUDGMENT

The Court should deny Defendants’ Emergency Motion for Stay of Judgment Pending Resolution of Defendants’ Motion for Stay of Judgment Pending Appeal. Defendants offer no legal support for their motion, and there is no reason for the Court to permit defendants to continue to engage in unlawful activity during the pendency of their anticipated motion for a stay pending appeal.

As the Court observed during the telephone conference initiated by defendants on August 18, 2006, none of the new, affirmative obligations in the Court’s Final Order take effect immediately. For example, the Court’s ban on the use of descriptors is effective on January 1, 2007, and defendants are not obligated to begin making corrective statements until after the Court determines the content of those statements based on submissions due from the parties on

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October 16, 2006.1 Defendants’ emergency motion therefore amounts to a request that the Court stay its injunction against acts of racketeering and false and misleading statements to the American public; it is a request that defendants be permitted to continue violating the law and attempting to deceive or mislead smokers and potential smokers, including young people. The Court should not grant such a request.

Moreover, Defendants fail to offer any explanation as to why a stay of judgment is necessary to provide “sufficient time [for defendants] to analyze the decision and present to this Court a thorough pleading explaining why” they are entitled to a stay pending appeal, Defs’ Mem. at 2, and in any event cite to no authority that supports entry of a stay for such a purpose. Defendants’ citation to Chamber of Commerce v. Reich, 897 F.Supp. 570 (D.D.C. 1995) is misplaced, for the case is one in which this Court granted plaintiffs an injunction against implementation of an Executive Order pending appeal based on the conclusion that plaintiffs would “suffer permanent, irreparable, uncompensable harm to their collective bargaining position and to their ability to operate during an economic strike; because they have raised serious, substantial, and difficult legal questions which are far from free from doubt; and because

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1 Even if defendants sought relief from these affirmative obligations, as they have indicated they will in a future motion for a stay pending appeal, they would be unable to meet the standards for such relief. In evaluating a request for a stay pending appeal, a court considers the following factors: (1) the appealing party’s likelihood of prevailing on the merits; (2) whether the appealing party would suffer irreparable injury if a stay is denied; (3) whether granting a stay would substantially harm other parties; and (4) the public interest. Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir 1977). The United States expects to more fully explain the reasons why this action should not be stayed pending appeal in response to defendants’ anticipated motion. Briefly, however, it is apparent that defendants should not prevail on the merits of any appeal to the Court of Appeals for the District of Columbia Circuit, they will not suffer irreparable injury due the court’s injunction against future unlawful conduct, and granting a stay is wholly contrary to the public interest. Indeed, the harm to the public – disease and death caused by defendants’ unlawful actions – is irreparable.

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neither the Defendant nor the public interest will be seriously adversely impacted by the delay in implementation of the Executive Order for the period of time required for the processing of an appeal by the Court of Appeals.” 897 F.Supp. at 585.

In contrast to the facts considered by the Court in Reich, in this case defendants have not identified any harm they will suffer in the absence of a stay pending resolution of their anticipated motion for a stay pending appeal, they have not raised any legitimate questions regarding the Court’s factual findings and judgment, and the Court’s findings of fact, entered after a nine-month trial, support the extraordinary harm that will be suffered by the public and the United States if defendants are not immediately enjoined from unlawful activity. For the foregoing reasons, defendants’ motion should be denied.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

/s/ Stephen D. Brody

STEPHEN D. BRODY (DC Bar # 459263)

Acting Director, Tobacco Litigation Team

United States Department of Justice

Post Office Box 14524

Ben Franklin Station

Washington, DC 20044-4524

(202) 616-4185

August 23, 2006 United States of America

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