KESSLER ORDERS SUBMISSIONS ON CORRECTIVES

October 23, 2006 9:55 pm by Gene Borio

On Oct. 19, 2006, Judge Kessler ordered both parties to submit memoranda or praecipes on the proposed corrective statements. Both sides’ previous submissions, she writes, “have raised new issues which have not been addressed before.”

The proposals from the DOJ and the Intervenors, in particular, would require vetting of the correctives by public health experts, and so would necessitate an extended period of time to imlement. The proposals also would require a “hands-on” approach from the court–down to approving font characteristics–that Kessler apparently finds troubling.

Considering the tight schedule for implementation of the corrective statements (Defendants have asked for a finalized ruling by Nov. 6), Kessler has ordered the memoranda to be submitted by Oct. 30, 2006.

Text follows of:

Kessler Order #1025 on Correctives October 19, 2006

**———————————————————

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND,

AMERICAN CANCER SOCIETY,

AMERICAN HEART ASSOCIATION,

AMERICAN LUNG ASSOCIATION,

AMERICANS FOR NONSMOKERS’ RIGHTS

and NATIONAL AFRICAN AMERICAN

TOBACCO PREVENTION NETWORK,

Intervenors,

v.

PHILIP MORRIS USA, INC.,

(f/k/a Philip Morris, Inc.), et al.,

Defendants.

Civil Action No. 99-2496 (GK)

**———————————————————

ORDER #1025

The Court has received, pursuant to the Final Judgment and Remedial Order (“Remedial Order”), Order #1015, paragraph II.B.5., the parties’ submissions of proposed language for “corrective statements” on five issues. The parties, in particular the Government and the Plaintiff-Intervenors, have raised new issues which have not been addressed before in this lengthy litigation.

Most significantly, the proposals of the Government and the Plaintiff-Intervenors, if adopted, would require a substantial extension of the deadlines set in paragraph II.B for issuance of corrective statements.

**———————————————————

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Defendant, Philip Morris USA (“PM USA”) has requested, for understandable logistical reasons, that the Court rule as to the substance of the final corrective statements by November 9, 2006, so that it can meet the deadlines imposed in the Remedial Order. Other Defendants have also requested prompt rulings from the Court.

In light of the parties’ submissions filed October 16, 2006, the Court hereby

ORDERS that all parties respond by Memorandum or Praecipe to the following issues raised by the submissions of the Government and the Plaintiff-Intervenors:

1. The practical impact of adopting the proposals contained in the submissions of the Government and Plaintiff-Intervenors, including that the Court consult with appropriate independent experts, to be paid by Defendants, to evaluate any proposed corrective statements, and that the Court undertake basic market testing research to evaluate the effectiveness of such statements;

2. Whether the corrective statements should indicate that they are being issued pursuant to Court Order;

3. Whether the Court should approve all relevant details of such corrective statements, such as print size, colors, spacing and format, voice-over in television advertisements, etc.

The Court is extremely concerned about the delay which would be necessitated by adoption of the proposals put forth by the Government and the Plaintiff-Intervenors, and the appropriateness and propriety of the Court adopting such a “hands-on” approach.

**———————————————————

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WHEREFORE, it is this ____ day of October, 2006, hereby

ORDERED, that the submissions are to be filed by October 30, 2006.

/s/

Gladys Kessler

United States District Judge

Copies via ECF to all counsel of record

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