Once Upon a Time, on a Day Far, Far Away . . .

January 24, 2014 1:19 am by Gene Borio

It appears only Reuters thought this hearing important enough to cover. Perhaps they’ve all given up; or, considering the briar patch of complications, probable appeals and likely delays discussed at the hearing, perhaps they feel that by the time anything actually happens in real life due to this trial, their grandchildren will be covering it anyway.

First, Judge Kessler congratulated the Parties for successfully coming to an agreement on implementation of portions of the corrective statements (they’d worked at it for over a year with mediator/Special Master Richard Levie).

Then she said that, partly due to the recent spate of filings [ie, by black and tribal media outlets, as well as by Fox ], she was concerned about 6 things, some of which, she said, were critically important.

She said:

1. 7 years after Order 1015, which set forth the newspapers to carry the corrective statements, I have come to the belief that we have ignored extremely important segments of the population–segments that had actually been targeted.

2. I am concerned about the prominence/placement of corrective statements on Websites of different Parties

3. I need an explanation on why the corrective statements are handled differently on mobile devices than on desktops.

(Mr. Anand Agneshwar, representing Altria and Philip Morris USA, later told her it was because of the size of the screen. He indicated the discussions on this matter were long and tedious and incredibly technical. The Parties tried to identify a “hierarchy of elements,” and had to set forth adaptable rules accounting for “responsive design,” size, color, font, etc. They even tried to account for unforeseen future technology. (”We tried to cross every t and dot every i,” Agneshwar said.)

4. In the Parties’ proposed order, I need a definition of the term “triggering event.”

(The Trigger Day, Agneshwar said, was that day when all appeals are exhausted. He noted that Altria has reserved the right to appeal the content of the corrective statements–but Altria would definitely NOT appeal this agreement, which only concerns the dissemination of the correctives. At that time when the Court issues an Order approving the agreement, Altria will then legally challenge the content of the corrective statements.)

5. The Proposed Order is not clear enough on the Minnesota Depository, and how long the Defendants’ obligations will run.

(DOJ’s Daniel Crane-Hirsch later told her the Defendants will continue to deliver their documents and pay for maintenance until 2021)

6. In the interest of accuracy, given the issuance of a new report of the Surgeon General, the statistics and facts on the health effects of tobacco are substantially different in many areas than the Proposed Order. I’m concerned about issuing an order that will contain statistics that are outdated.

She said she will set a deadline for how to proceed, and that she would be asking for praecipes on these 6 concerns–but wondered if any party would like to speak about them, even if only impromptu. “Consider this just the first conversation about these issues.”

Howard Crystal, for the Public Health Intervenors, said his clients basically want the corrective statements OUT THERE. It’s been a long time now, and the public health organizations want FINALITY.

Altria’s Agneshwar emphasized the myriad assumptions the agreement was based on. These new filings may lead to a different set of assumptions. And once the terms of agreement start to change–all the parties would have to look at each carefully-balanced element of the agreement again. “We want the agreement we have reached,” he said. Again, finality. As to the Surgeon General’s Report, Agneshwar said Altria hasn’t been able to evaluate it yet. But the Court’s order was premised on findings from the actual trial. And that trial record is now closed.

DOJ’s Daniel Crane-Hirsch also emphasized that changing any part of the agreement now could run a substantial risk to it.

Judge Kessler said she was concerned about the delay(s). The Bottom Line, she said, was that the public was not getting the benefit of the corrective statements. She ticked off the various likely appeals, noted the court schedules, and calculated that the actual dissemination of corrective statements won’t go ahead until 2015. Crane-Hirsch then mentioned a likely en ban appeal, and even a likely cert petition to the Supreme Court.

Judge Kessler asked if the DOJ agreed the correctives’ statistics should be from the original trial. Crane-Hirsch said “we’re studying that.”

Noel Francisco for RJR and Michael Minton for Lorillard also favored no changes whatsoever to the agreement.

Several people noted that the very important convenience store Point of Sale issue (ie, the appropriation of the valuable retail display space of a 3rd party for posting the correctives) appears to be on a separate track that will not further complicate these 6 issues.

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