RESPONSE TO AMICUS BRIEF OF THE NATIONAL NEWSPAPER PUBLISHERS ASSOCIATION AND NATIONAL ASSOCIATION OF BLACK OWNED BROADCASTERS (PDF)

January 22, 2014 10:32 am by Gene Borio

The PDF is Here

EXCERPT:

The NNPA and NABOB seek to require Defendants to run corrective statements in additional newspapers, beyond the 34 required by this Court. Defendants oppose any third party request to change the terms of the parties’ agreement.

First, this request comes too late. It has been more than seven years since this Court first specified the newspapers and television networks in which Defendants would be required to place corrective statements. See Order #1015, at 6-7, 9. That Order was appealed, remanded, appealed again, and remanded again. Throughout this time, this Court’s orders were well publicized, yet no third party beyond those that had already appeared sought to participate as amici. No third party proposed additional media in which they sought advertisements by Defendants. Now that the parties have been negotiating the implementation terms of the corrective communications remedy for over a year, it is simply too late in the day to put a new slate of newspapers before the Court and the parties.

Second, the terms of the agreement cannot be modified and the agreement still stand. The mediation proceeded on the assumption that the Court’s 2006 Order specified the scope of the obligations to be imposed; those obligations then provided the framework for the agreement itself. Any change in those terms would nullify the agreement, leaving the parties back at the negotiating table to see if a revised agreement can be reached.

That said, the proposed Consent Order itself acknowledges that some newspapers on the Court’s list are no longer in print. By the time the corrective statements are actually implemented, more newspapers could fall in this category. The proposed Consent Order includes a process for the parties to identify replacement newspapers. We have no objection to considering as replacements newspapers that are on the list proposed by NNPA and NABOB. This result would be consistent with the assumptions we have been using in the mediation.

END EXCERPT

FULL TEXT:

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

UNITED STATES OF AMERICA,

Plaintiff,

Civil Action No. 99-CV-2496 (GK

Next scheduled court appearance: and

January 22, 2014

TOBACCO-FREE KIDS ACTION FUND, et al.,

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA INC., et al.,

Defendants. ____________________________________

RESPONSE TO AMICUS BRIEF OF THE NATIONAL NEWSPAPER PUBLISHERS ASSOCIATION AND NATIONAL ASSOCIATION OF BLACK OWNED BROADCASTERS

Please accept this response to Friday’s submission by the National Newspaper Publishers Association (“NNPA” and the National Association of Black Owned Broadcasters (“NABOB”), organizations that to the best of our knowledge have not filed motions to appear as amici curiae in the nearly fifteen-year history of this litigation. The NNPA and NABOB seek to require Defendants to run corrective statements in additional newspapers, beyond the 34 required by this Court. Defendants oppose any third party request to change the terms of the parties’ agreement.

First, this request comes too late. It has been more than seven years since this Court first specified the newspapers and television networks in which Defendants would be required to place corrective statements. See Order #1015, at 6-7, 9. That Order was appealed, remanded, appealed again, and remanded again. Throughout this time, this Court’s orders were well publicized, yet no third party beyond those that had already appeared sought to participate as

Case 1:99-cv-02496-GK Document 6026 Filed 01/21/14 Page 1 of 5
amici. No third party proposed additional media in which they sought advertisements by Defendants. Now that the parties have been negotiating the implementation terms of the corrective communications remedy for over a year, it is simply too late in the day to put a new slate of newspapers before the Court and the parties.

Second, the terms of the agreement cannot be modified and the agreement still stand. The mediation proceeded on the assumption that the Court’s 2006 Order specified the scope of the obligations to be imposed; those obligations then provided the framework for the agreement itself. Any change in those terms would nullify the agreement, leaving the parties back at the negotiating table to see if a revised agreement can be reached.

That said, the proposed Consent Order itself acknowledges that some newspapers on the Court’s list are no longer in print. By the time the corrective statements are actually implemented, more newspapers could fall in this category. The proposed Consent Order includes a process for the parties to identify replacement newspapers. We have no objection to considering as replacements newspapers that are on the list proposed by NNPA and NABOB. This result would be consistent with the assumptions we have been using in the mediation.

Dated: January 21, 2014

Matthew Campbell

(D.C. Bar No. 472293

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Tel: (202

282-5000

Fax: (202

282-5100

Anand Agneshwar

Arnold & Porter LLP

399 Park Avenue

New York, NY 10022-4690

Telephone: (212

715-1107

Fax: (212

715-1399

Case 1:99-cv-02496-GK Document 6026 Filed 01/21/14 Page 2 of 5

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Admitted pro hac vice

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

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/_________________

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

Geoffrey K. Beach

R. Michael Leonard

WOMBLE CARLYLE SANDRIDGE &

Case 1:99-cv-02496-GK Document 6026 Filed 01/21/14 Page 3 of 5

4

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/_________________

Michael B. Minton

Elizabeth Blackwell

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

Case 1:99-cv-02496-GK Document 6026 Filed 01/21/14 Page 4 of 5

5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on January 21, 2014, I filed a copy of the foregoing Response to Amicus Brief of the National Newspaper Publishers Association and National Association of Black Owned Broadcasters with the Court, which will electronically serve all counsel of record who have entered an appearance in this case.

Dated: January 21, 2014

Matthew Campbell

(D.C. Bar No. 472293

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Tel: (202

282-5000

Fax: (202

282-5100

Attorney for Defendants

Altria Group, Inc. and Philip Morris

USA Inc.

Case 1:99-cv-02496-GK Document 6026 Filed 01/21/14 Page 5 of 5

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