DEFENDANTS’ RESPONSE TO PUBLIC HEALTH INTERVENORS’ NOTICE OF FILING 2012-06-08

July 6, 2012 12:09 pm by Gene Borio

The PDF is Here

EXCERPT:

Intervenors do not contend that any aspect of Altria’s public statements in Roll Call, The Hill, and Politico was untruthful. Nor could they plausibly have done so. There is nothing in this Court’s injunctions that prohibits Defendants from making truthful public statements about their marketing practices, their underage-smoking prevention activities, or positions on the health risks of smoking—and their right to comment on these issues of “public concern” is unquestionably protected by the First Amendment. . . .

Intervenors’ invocation of Altria’s truthful public statements to support their request for court-ordered corrective statements makes clear that, far from being “geared toward[ ] thwarting prospective efforts by Defendants” to mislead the public, . . . those unprecedented corrective statements are intended to punish and shame Defendants. . . . But court-ordered corrective statements designed to punish and shame Defendants are far beyond the reach of RICO and the jurisdiction of this Court. In fact, in light of Defendants’ public positions on smoking and health issues, and the FDA’s extensive regulatory authority over virtually every aspect of Defendants’ business, there is no reasonable likelihood that Defendants will in the future mislead the public about the health risks and addictiveness of smoking. The Government’s proposed corrective statements are therefore unwarranted under RICO and unconstitutional under the First Amendment.

END EXCERPT

FULL TEXT:

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Case 1:99-cv-02496-GK Document 5973 Filed 06/08/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

UNITED STATES OF AMERICA,

Plaintiff,

v.

PHILIP MORRIS USA INC., et al.,

Defendants.

Civil Action No. 99-2496 (GK)

_________________________________________

DEFENDANTS’ RESPONSE TO PUBLIC HEALTH INTERVENORS’ NOTICE OF FILING

The public statements by Altria Group, Inc., appended to Intervenors’ Notice of Filing (Dkt. 5972) underscore that the corrective statements proposed by the Government would fail to promote an anti-fraud objective and would therefore exceed this Court’s jurisdiction under RICO and violate Defendants’ First Amendment rights.

Intervenors do not contend that any aspect of Altria’s public statements in Roll Call, The Hill, and Politico was untruthful. Nor could they plausibly have done so. There is nothing in this Court’s injunctions that prohibits Defendants from making truthful public statements about their marketing practices, their underage-smoking prevention activities, or positions on the health risks of smoking—and their right to comment on these issues of “public concern” is unquestionably protected by the First Amendment. Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011).

Intervenors’ invocation of Altria’s truthful public statements to support their request for court-ordered corrective statements makes clear that, far from being “geared toward[ ] thwarting prospective efforts by Defendants” to mislead the public, United States v. Philip Morris USA

Case 1:99-cv-02496-GK Document 5973 Filed 06/08/12 Page 2 of 3

Inc., 566 F.3d 1095, 1144 (D.C. Cir. 2009) (per curiam) (internal quotation marks omitted), those unprecedented corrective statements are intended to punish and shame Defendants. To Intervenors, any public statement that would tend to cast Altria, PM USA, or any other Defendant in a positive light—irrespective of the accuracy of that statement—would be inconsistent with the purpose of their proposed corrective statements. But court-ordered corrective statements designed to punish and shame Defendants are far beyond the reach of RICO and the jurisdiction of this Court. In fact, in light of Defendants’ public positions on smoking and health issues, and the FDA’s extensive regulatory authority over virtually every aspect of Defendants’ business, there is no reasonable likelihood that Defendants will in the future mislead the public about the health risks and addictiveness of smoking. The Government’s proposed corrective statements are therefore unwarranted under RICO and unconstitutional under the First Amendment.

Dated: June 8, 2012

Respectfully submitted,

/s/ Miguel A. Estrada

Miguel A. Estrada (D.C. Bar No. 456289)

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

Telephone: (202) 955-8257

Fax: (202) 530-9016

Beth A. Wilkinson (D.C. Bar No. 462561)

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

2001 K Street, N.W.

Washington, D.C. 20006-1047

Telephone: (202) 223-7300

Fax: (202) 223-7420

Case 1:99-cv-02496-GK Document 5973 Filed 06/08/12 Page 3 of 3

3

Thomas J. Frederick

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601-9703

Telephone: (312) 558-6700

Fax: (202) 558-5700

Attorneys for Defendants

Altria Group, Inc. and Philip Morris USA Inc.

/s/ Miguel A. Estrada for

Noel J. Francisco (D.C. Bar No. 464752)

Robert F. McDermott (D.C. Bar No. 261164)

Peter J. Biersteker (D.C. Bar No. 358108)

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

Fax: (202) 626-1700

R. Michael Leonard

WOMBLE CARLYLE SANDRIDGE &

RICE, PLLC

One West Fourth Street

Winston-Salem, NC 27101

Telephone: (336) 721-3721

Fax: (336) 733-8389

Attorneys for Defendant R.J. Reynolds Tobacco Company, individually and as successor by merger to Brown & Williamson Tobacco Corporation

/s/ Miguel A. Estrada for

Michael B. Minton

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

Attorneys for Defendant

Lorillard Tobacco Company

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