US COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: APPELLANTS’ REPLY BRIEF (Jan 7, 2015)

January 9, 2015 12:31 am by Gene Borio

20150107 APPELLANTS’ REPLY BRIEF

The PDF is Here

EXCERPT:

In its 2009 opinion, this Court directed the district court to craft corrective statements that are confined to “‘purely factual and uncontroversial information’” that “reveal[s] the previously hidden truth about [Defendants’] products.” . . .

In accordance with that ruling, Defendants stand ready to disseminate statements that provide public-health information about cigarettes. Instead of heeding this Court’s instructions, however, the district court ordered a series of inflammatory statements that require Defendants to denigrate themselves as unscrupulous villains who deceived the American public in the past and who continue to do so today. Indeed, there is nothing at all “corrective” about the anger-inducing, inaccurate statements ordered by the district court. Those statements fall well outside the narrow parameters of this Court’s mandate, exceed the First Amendment’s limitations on compelled speech, and overstep RICO’s limited grant of remedial authority. . .

By requiring Defendants to vilify themselves based on their past conduct, the district court’s statements impose an unnecessary, punitive sanction that cannot be squared with Section 1964(a)’s jurisdictional limitations or the due process prohibition against the imposition of criminal punishment in a civil setting.

END EXCERPT

FULL TEXT:

ARGUMENT SCHEDULED FOR FEBRUARY 23, 2015
Nos. 13-5028 & 14-5161 IN THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
PHILIP MORRIS USA INC., et al.,
Defendants-Appellants.

On Appeal From Orders Of The United States District Court For The District Of Columbia
1:99-cv-02496-GK

APPELLANTS’ REPLY BRIEF

Noel J. Francisco Peter J. Biersteker JONES DAY
51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Facsimile: (202) 626-1700

Counsel for Appellant
R.J. Reynolds Tobacco Company
Miguel A. Estrada Amir C. Tayrani Carlo D. Marchioli
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W. Washington, D.C. 20036
Telephone: (202) 955-8257
Facsimile: (202) 530-9616

Counsel for Appellants Philip Morris USA Inc. and Altria Group, Inc.

[Additional Counsel Listed On Inside Cover]

Geoffrey K. Beach
R. Michael Leonard
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC
One West Fourth Street Winston-Salem, NC 27101
Telephone: (336) 721-3721
Facsimile: (336) 733-8389

Counsel for Appellant
R.J. Reynolds Tobacco Company

Michael B. Minton Bruce D. Ryder
A. Elizabeth Blackwell THOMPSON COBURN LLP
One U.S. Bank Plaza, Suite 3500 St. Louis, MO 63101-1693
Telephone: (314) 552-6000
Facsimile: (314) 552-7597

Counsel for Appellant Lorillard Tobacco Company
Thomas J. Frederick WINSTON & STRAWN LLP
35 West Wacker Drive Chicago, IL 60601-9703
Telephone: (312) 558-6700
Facsimile: (312) 558-5700

Counsel for Appellants Philip Morris USA Inc. and Altria Group, Inc.

TABLE OF CONTENTS
SUMMARY OF ARGUMENT 1
ARGUMENT 4
The District Court’s Corrective Statements Violate The First Amendment And This Court’s Mandate 4
The District Court’s Confessional Preambles Are Not
“Purely Factual And Uncontroversial” 5
The Preambles Improperly Focus On Defendants’
Prior Conduct 6
The Preambles Contain Multiple Inaccuracies 13
Numerous Other Aspects Of The Corrective Statements
Are Not “Purely Factual And Uncontroversial” 17
The District Court’s Corrective Statements Are Unduly Burdensome 20
The District Court’s Corrective Statements Cannot
Withstand Any Form of First Amendment Scrutiny 24
The District Court’s Corrective Statements Violate RICO And
This Court’s Mandate 28
The District Court’s Corrective Statements Violate Due Process 30
CONCLUSION 32

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TABLE OF AUTHORITIES

Page(s)

Cases
Am. Meat Inst. v. U.S. Dep’t of Agric.,
760 F.3d 18 (D.C. Cir. 2014) (en banc)………………………………… 2, 4, 7, 9, 24, 27
Conair Corp.,
261 N.L.R.B. 1189 (1982) 11
Conair Corp. v. NLRB,
721 F.2d 1355 (D.C. Cir. 1983) 11
In re Daniel Chapter One,
2010 WL 387917 (FTC Jan. 25, 2010) 12
Daniel Chapter One v. FTC,
405 F. App’x 505 (D.C. Cir. 2010) 12
Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation,
512 U.S. 136 (1994) 20
Johanns v. Livestock Mktg. Ass’n,
544 U.S. 550 (2005) 8
Lorain Journal Co. v. United States,
342 U.S. 143 (1951) 10
Neder v. United States,
527 U.S. 1 (1999) 13
Novartis Corp. v. FTC,
223 F.3d 783 (D.C. Cir. 2000)…………………………………………………………… 11, 22
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) 8
* Authorities upon which we chiefly rely are marked with asterisks.
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R.J. Reynolds Tobacco Co. v. FDA,
696 F.3d 1205 (D.C. Cir. 2012)…………………………………………… 9, 13, 17, 18, 26
Shaffer v. R.J. Reynolds Tobacco Co.,
860 F. Supp. 2d 991 (D. Ariz. 2012) 9
Spirit Airlines, Inc. v. U.S. Dep’t of Transp.,
687 F.3d 403 (D.C. Cir. 2012) 26
United Food & Commercial Workers Int’l Union,
AFL-CIO v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988) 11
United States v. Philip Morris USA Inc.,
686 F.3d 832 (D.C. Cir. 2012) 30
United States v. Philip Morris USA Inc.,
566 F.3d 1095 (D.C. Cir. 2009)…………. 1, 2, 3, 4, 6, 7, 14, 21, 25, 27, 28, 29, 31
United States v. Philip Morris USA Inc.,
396 F.3d 1190 (D.C. Cir. 2005) 29
United States v. Philip Morris USA Inc.,
449 F. Supp. 2d 1 (D.D.C. 2006)………………………………. 3, 14, 15, 17, 18, 19, 20
Warner-Lambert Co. v. FTC,
562 F.2d 749 (D.C. Cir. 1977)……………………………………………………….. 2, 13, 22
Wooley v. Maynard,
430 U.S. 705 (1977)…………………………………………………………………………… 8, 20
Zauderer v. Office of Disciplinary Counsel of Supreme Court,
471 U.S. 626 (1985)……………………………………………………………………….. 1, 5, 20
Statutes
* 18 U.S.C. § 1964 28
The Family Smoking Prevention and Tobacco Control Act of 2009,
Pub. L. No. 111-31, 123 Stat. 1776 29

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Other Authority
Letter from Lawrence R. Deyton, Dir. Ctr. for Tobacco Prods., to Denise F. Keane, Exec. Vice President & Gen. Counsel, Altria Group, Inc. (June 17, 2010), available at www.fda.gov/ TobaccoProducts/GuidanceComplianceRegulatory
Information/ucm216154.htm 16

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SUMMARY OF ARGUMENT
In its 2009 opinion, this Court directed the district court to craft corrective statements that are confined to “‘purely factual and uncontroversial information’” that “reveal[s] the previously hidden truth about [Defendants’] products.” United States v. Philip Morris USA Inc., 566 F.3d 1095, 1140, 1144 (D.C. Cir. 2009) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 651 (1985)). In accordance with that ruling, Defendants stand ready to disseminate statements that provide public-health information about cigarettes.
Instead of heeding this Court’s instructions, however, the district court ordered a series of inflammatory statements that require Defendants to denigrate themselves as unscrupulous villains who deceived the American public in the past and who continue to do so today. Indeed, there is nothing at all “corrective” about the anger-inducing, inaccurate statements ordered by the district court. Those statements fall well outside the narrow parameters of this Court’s mandate, exceed the First Amendment’s limitations on compelled speech, and overstep RICO’s limited grant of remedial authority.
Unable to mount a meaningful defense of the corrective statements’ unprecedented confessional preambles, the Government buries its substantive response to Defendants’ lead argument at the back of its brief and seeks to interpose a series of procedural objections to Defendants’ arguments. None of

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those objections has any force. For example, the Government and Intervenors make the remarkable assertion that this Court’s 2009 opinion—which was issued before the district court had even specified the language of its corrective statements—somehow approved statements that would require Defendants to confess publicly to allegations of past misconduct. Gov’t Br. 45; Intervenors’ Br. 17-18. That position is untenable. Far from endorsing statements that condemned Defendants’ past conduct, the Court emphasized that the statements must relate to the “efficacy, safety, and quality of [Defendants’] product[s].” Philip Morris USA Inc., 566 F.3d at 1143 (emphasis added). This principle—that compelled commercial speech must focus on a manufacturer’s products, rather than its conduct—was recently reaffirmed by the en banc Court. See Am. Meat Inst. v.
Dep’t of Agric., 760 F.3d 18, 26 (D.C. Cir. 2014) (en banc).

The Government and Intervenors nonetheless maintain that the corrective statements cannot be considered controversial because they present a factually accurate accounting of the district court’s findings. Gov’t Br. 41; Intervenors’ Br. 22-23. But the fact that the district court found Defendants liable for RICO violations does not mean that it can compel them to declare publicly, in their own voices, that they are untrustworthy, reprehensible wrongdoers, see Warner- Lambert Co. v. FTC, 562 F.2d 749, 763 (D.C. Cir. 1977)—especially where numerous other finders of fact have reached contrary conclusions regarding

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Defendants’ conduct. To be sure, the district court’s findings of fact are law of the case in this litigation, but they are not orthodoxy that Defendants can be required to endorse and adopt as their own in compelled public statements.
In any event, even when examined against the backdrop of the district court’s factual findings, many aspects of the corrective statements are far from “purely factual and uncontroversial”—including the language in all five statements that Defendants “deceived the American public,” which finds no support in the district court’s opinion because actual deception is not an element of the mail- and wire-fraud claims on which this RICO action was predicated. United States v.
Philip Morris USA Inc., 449 F. Supp. 2d 1, 900 n.72 (D.D.C. 2006). Nor do the Government or Intervenors offer any explanation as to why these statements must be disseminated in overlapping, duplicative media channels, rather than in a targeted distribution designed to strike a constitutionally appropriate balance between the Government’s anti-deception objective and Defendants’ First Amendment rights.
The Government’s and Intervenors’ attempts to reconcile the retrospective language of the district court’s statements with Section 1964(a)’s limitation to “forward-looking remedies” are equally unavailing. Philip Morris USA Inc., 566 F.3d at 1139. While the Government and Intervenors contend that the district court’s self-accusatory, backward-looking language is the most effective way to

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ensure that Defendants do not commit future RICO violations, Gov’t Br. 42; Intervenors’ Br. 27, that unsubstantiated speculation is belied by the record, and runs headlong into this Court’s admonition that a remedy under Section 1964(a) “may not be justified simply on the ground that whatever hurts a civil RICO violator necessarily serves to prevent and restrain future RICO violations.” Philip Morris USA Inc., 566 F.3d at 1148 (internal quotation marks omitted). By requiring Defendants to vilify themselves based on their past conduct, the district court’s statements impose an unnecessary, punitive sanction that cannot be squared with Section 1964(a)’s jurisdictional limitations or the due process prohibition against the imposition of criminal punishment in a civil setting.
ARGUMENT
The District Court’s Corrective Statements Violate The First Amendment And This Court’s Mandate.
The district court’s conduct-focused, inaccuracy-laden statements cannot be reconciled with the requirements of this Court’s mandate and the First Amendment that compelled commercial disclosures provide “‘purely factual and uncontroversial information’” about a product without being “‘unjustified and unduly burdensome.’” Philip Morris USA Inc., 566 F.3d at 1144; Am. Meat Inst., 760 F.3d at 26. The arguments raised by the Government and Intervenors in defense of those unprecedented statements are meritless.

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The District Court’s Confessional Preambles Are Not “Purely Factual And Uncontroversial.”
The preamble to each of the district court’s corrective statements requires Defendants to declare publicly that they are serial wrongdoers. Understandably, the Government prefers not to defend the substance of those preambles— addressing Defendants’ lead argument at the end of its brief and only after raising supposed procedural obstacles to review. But these inflammatory preambles are squarely and properly before this Court.
Moreover, while the Court has not previously had the opportunity to pass upon the precise language of the district court’s statements, its prior opinions make clear that the preambles are anything but “purely factual and uncontroversial.” The preambles’ confessional, self-denigrating language conveys a message about Defendants’ credibility and value as citizens (not about the health risks of their products) and affects how all of Defendants’ speech (not just their commercial speech) will be evaluated by the public. It is inconceivable that such compelled self-condemnation would not trigger the most exacting constitutional scrutiny, especially because Zauderer’s rationale for permitting compelled commercial speech is based squarely on a manufacturer’s “minimal” constitutional interest in not providing “purely factual and uncontroversial” information about its products. 471 U.S. at 651. There is no conceivable basis for suggesting that a manufacturer

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likewise has only a “minimal” constitutional interest when forced to broadcast the Government’s message that it is a liar.
The Preambles Improperly Focus On Defendants’ Prior Conduct.
The preambles to each of the district court’s compelled statements require Defendants to confess that they “deliberately deceived the American public” and are now being ordered to tell “the truth.” JA 158-60. According to the Government and Intervenors, this Court has already upheld the district court’s authority to order such conduct-focused confessions because its 2009 opinion “approved” the general requirement of a corrective statement addressing Defendants’ “‘manipulation of cigarette design and composition to ensure optimum nicotine delivery.’” Gov’t Br. 45 (quoting Philip Morris USA Inc., 566 F.3d at 1138); Intervenors’ Br. 17-18.
That argument rests on a serious misreading of the Court’s 2009 opinion, which was decided three years before the district court even adopted the language of its proposed statements. That appeal therefore did not afford the Court the opportunity to pass upon the statements ultimately crafted by the district court.
And the guidance that this Court did provide about the language of those forthcoming statements, including the statement about nicotine manipulation, made clear that they had to be limited to “‘purely factual and uncontroversial information’” that “reveal[ed] the previously hidden truth about [Defendants’]

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products.” Philip Morris USA Inc., 566 F.3d at 1140, 1144 (emphasis added). There are many alternative formulations of a nicotine-manipulation corrective statement that would comply with that standard by focusing appropriately on Defendants’ products, rather than their conduct. See, e.g., JA 60 (proposed nicotine-manipulation statement of PM USA: “Cigarettes deliver tar and nicotine. Well known design features affect the delivery of tar and nicotine. The amount of tar and nicotine you inhale will vary, depending upon how you smoke. Generally speaking, the more intensely you smoke a cigarette, the more tar and nicotine you will inhale.”). Thus, nothing in this Court’s 2009 opinion, or its other opinions, remotely sanctions the type of self-vilifying, conduct-centered preambles adopted by the district court. See, e.g., Am. Meat. Inst., 760 F.3d at 26 (“the disclosure mandated must relate to the good or service offered by the regulated party”) (emphasis added).
The Government nonetheless maintains that “[t]here is simply nothing ‘controversial’ about the fact that the district court found that Defendants deceived the American public.” Gov’t Br. 41. But there is an important constitutional distinction between government speech informing the public about those findings and a requirement that Defendants themselves publish the findings and publicly declare in their own voices that they have been found to be wrongdoers. Members of the public who view the corrective statements—which expressly declare that the

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Defendant “companies . . . [are] mak[ing] this statement” and which will appear on Defendants’ own websites and cigarette packages—will invariably conclude that the message is being conveyed by Defendants, not the Government. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) (invalidating compelled speech on state-issued license plate). And the public’s inevitable reaction—as confirmed by the Government’s own focus groups and media coverage of the statements—will be anger toward Defendants and the rejection of anything Defendants have to say, on any topic, on the ground that they are inveterate liars. See Defs. Br. 31-32.1
Intervenors likewise maintain that all that matters under Zauderer and this Court’s mandate is the preambles’ factual accuracy and that, “[a]s long as the corrective statements are factually accurate, they are thus also necessarily uncontroversial.” Intervenors’ Br. 22. But the Supreme Court and this Court have consistently rejected that argument. As this Court has explained, compelled commercial disclosures must not only be technically accurate but also “unbiased,”

For that reason, the Government’s amicus is incorrect that the corrective statements are akin to government speech and therefore impose only an insubstantial First Amendment burden on Defendants. Tobacco Control Legal Consortium Br. 33-34. As the cases cited by the amicus make clear, the government-speech doctrine does not apply where, as here, the speech will be attributed to a private speaker. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 564 n.7 (2005) (“If a viewer would identify the speech as [a private party’s]
. . . the analysis would be different.” ); see also Pleasant Grove City v. Summum, 555 U.S. 460, 472 (2009) (same).

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free of “inflammatory” language or images, and incapable of “misinterpretation by consumers.” R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1216-17 (D.C. Cir. 2012). Thus, even if the preambles were not infused with factual flaws, see infra section I.A.2, their confessional language would still be far from “purely . . . uncontroversial.”2
The controversial nature of the district court’s conduct-focused preambles is underscored by the fact that numerous judges and juries have reached conclusions that conflict with the district court’s findings. According to the Government, the prior decisions identified by Defendants should be discounted because they do not “necessarily” conflict with the district court’s findings, Gov’t Br. 39—although the Government makes no showing to that effect. Nor does the Government deny that every court that has considered the question has refused to give collateral-estoppel effect to the district court’s findings. As one of those courts explained, it would be improper to give preclusive effect to the findings where “there are decisions favorable to tobacco defendants related to allegations of fraud in the sale and marketing of cigarettes.” Shaffer v. R.J. Reynolds Tobacco Co., 860 F. Supp. 2d

Intervenors likewise err in attempting to equate Zauderer with rational-basis review. Intervenors’ Br. 38. The en banc Court recently rejected that position. See Am. Meat Inst., 760 F.3d at 34 n.2 (Kavanaugh, J., concurring in the judgment) (“The majority opinion today properly recognizes that Zauderer did not embrace mere rational basis review, and the majority opinion thus disavows that aspect of
R.J. Reynolds . . . .”).

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991, 996 (D. Ariz. 2012). The many cases that have rejected the allegations of fraud advanced by the Government in this litigation, see Defs. Br. 35-36, make clear that the corrective statements’ unqualified pronouncements about Defendants’ past conduct are, as Intervenors put it, “subject to legitimate dispute.” Intervenors’ Br. 22. Accordingly, they cannot be “purely factual and uncontroversial.”
The Government and Intervenors also seek to identify prior cases that purportedly approved similar compelled disclosures, Gov’t Br. 46-47; Intervenors’ Br. 28-29, but the inflammatory language of the district court’s confessional preambles finds no analogue in those authorities. For example, in Lorain Journal Co. v. United States, 342 U.S. 143 (1951)—a case that preceded Zauderer by more than three decades—the Supreme Court affirmed an injunction that required the defendant newspaper to publish “a notice which shall fairly and fully apprise the readers thereof of the substantive terms of” an antirust judgment against it. Id. at
158. The Court rejected the newspaper’s argument that the injunction’s prohibition on the newspaper’s accepting or rejecting certain advertisements acted as an unlawful prior restraint. Id. at 155-56. The Court did not address, however, whether the notice requirement—which, unlike the district court’s corrective- statements order, permitted the newspaper itself to craft the specific terms of the disclosure—was consistent with the First Amendment.

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Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983), and United Food & Commercial Workers International Union, AFL-CIO v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988), are similarly inapposite. In both cases, this Court upheld orders requiring companies to publish in local newspapers—and the companies’ presidents to read to assembled employees—notices stating that “the National Labor Relations Board found that we have violated the National Labor Relations Act.” Conair Corp., 261 N.L.R.B. 1189, 1199 (1982); see also D.E. 5891-2, at 2
(order of the NLRB in United Food requiring a similar statement). In neither case, however, did the Court address any First Amendment question. Moreover, those orders lacked the self-denigrating language of the district court’s statements—the companies were not required to brand themselves as liars and cheats—and did not mandate the same indiscriminate, far-reaching, and burdensome dissemination ordered by the district court.
Finally, the two cases cited by the Government and Intervenors that actually addressed free-speech challenges likewise provide no support for the confessional preambles. In Novartis Corp. v. FTC, 223 F.3d 783 (D.C. Cir. 2000), this Court upheld precisely the type of “purely factual and uncontroversial” statement about a product that Zauderer contemplated: “Although Doan’s is an effective pain reliever, there is no evidence that Doan’s is more effective than other pain relievers for back pain.” Id. at 786. Defendants proposed to the district court and stand

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ready to disseminate similar corrective statements about the health effects of cigarettes. See JA 54, 64, 67, 76.
Moreover, as explained in Defendants’ opening brief, this Court’s unpublished decision in Daniel Chapter One v. FTC, 405 F. App’x 505 (D.C. Cir. 2010), does not sanction a requirement that Defendants make sweeping public confessions of wrongdoing. See Defs. Br. 32 n.10. The letter that the defendant in that case was ordered to send to its customers—which informed them that the Commission had found its health claims regarding four specific brands of dietary supplements to be deceptive and provided accurate public-health information about those brands—was “carefully tailored to protect [the defendant’s] clientele from deception.” Daniel Chapter One, 405 F. App’x at 506; see also In re Daniel Chapter One, 2010 WL 387917, at *4 (FTC Jan. 25, 2010). In contrast, the distribution of the district court’s corrective statements—through overlapping, redundant channels that will bombard the public, again and again, with the same inflammatory message—is not limited to Defendants’ customers, and the statements’ undifferentiated confession of misconduct will send the unmistakable, and unfounded, message that everything Defendants have ever said, and ever will say, on the topic of smoking and health is false. See Tobacco Control Legal Consortium Br. 30-31 (defending the district court’s corrective statements on the ground that “constantly evolving” industry practices make it “insufficient simply to

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correct certain past misrepresentations”). The Government cites no case authorizing the use of compelled speech to so thoroughly and repeatedly discredit a speaker. To the contrary, in the most on-point case, this Court rejected a much milder confessional preamble precisely because it “humiliate[d] the advertiser,” Warner-Lambert Co., 562 F.2d at 763—a purpose irreconcilable with Zauderer’s command that corrective statements be limited to “purely factual and uncontroversial” information.
2. The Preambles Contain Multiple Inaccuracies.
In addition to being controversial, numerous aspects of the corrective statements’ confessional preambles fail Zauderer’s requirement that compelled commercial speech be “indisputably accurate and not subject to misinterpretation by consumers.” R.J. Reynolds Tobacco Co., 696 F.3d at 1216.
First, each preamble incorrectly states that “[a] Federal Court has ruled that [Defendants] deliberately deceived the American public,” JA 158 (emphasis added), even though the mail- and wire-fraud claims on which the Government’s RICO action was premised did not require the Government to prove that Defendants actually deceived anyone. See Neder v. United States, 527 U.S. 1, 25 (1999) (“By prohibiting the ‘scheme to defraud,’ rather than the completed fraud, the elements of reliance and damage would clearly be inconsistent with the [mail and wire fraud] statutes . . . .”) (emphasis added).

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The Government nevertheless insists that “[t]he district court and this Court agreed that Defendants ‘deceived’ the public,” Gov’t Br. 29, and, in support, cites statements from the district court’s Final Judgment and Remedial Order and this Court’s 2009 opinion. Id. at 29 n.7. To be sure, the district court did state, when speaking “more colloquially, and less legalistically . . . [that] Defendants lied, misrepresented, and deceived the American public.” Philip Morris USA Inc., 449
F. Supp. 2d at 852. But, when setting forth the elements of the Government’s claims, the district court was crystal clear that, “[t]o establish a mail or wire fraud violation, a plaintiff is not required to prove that . . . the wrongdoer succeeded in deceiving or defrauding the intended victim.” Id. at 900 n.72 (emphases added); see also Philip Morris USA Inc., 566 F.3d at 1105. Thus, not surprisingly, when the district court identified the factual support for this aspect of the preambles, it cited findings regarding alleged inaccuracies in Defendants’ public statements about smoking and health, see, e.g., JA 216 n.1—none of which concluded that the statements actually “deceived” anyone. In any event, the district court’s “colloquial[ ]” assessment of Defendants’ conduct is, at most, law of the case and, given its departure from controlling interpretations of the mail- and wire-fraud statutes, is not the type of “purely factual” statement that Defendants can be compelled to broadcast under Zauderer.

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Second, although much of the conduct on which the district court based its findings allegedly occurred decades ago, the preambles do not address the time period covered by the findings and therefore create the misimpression that Defendants are engaged in ongoing deceptions. While the Government belittles this argument as supposedly demanding that “the district court . . . identify the precise moment in time when each deception ceased,” Gov’t Br. 32 (emphasis added), Defendants are in fact objecting to the absence of any timeframe, which leaves the public to assume that Defendants continue to make misleading statements about the health effects of smoking. In fact, Intervenors acknowledge—and embrace—this interpretation of the statements, defending it on the ground that the district court concluded that Defendants may commit future RICO violations. Intervenors’ Br. 31. But a finding that future RICO violations are possible is far different from a finding that such violations are in fact ongoing. Indeed, the district court has not found a single violation of its injunctions since they were entered in 2006. See Philip Morris USA Inc., 449 F. Supp. 2d at 938.3

Intervenors allege that Defendants violated the injunctions by “switch[ing] from ‘light’ and ‘low tar’ descriptors to ‘Gold’ and other colored packs.” Intervenors’ Br. 32. Nothing in the district court’s order, however, prohibits Defendants from using coloring on their cigarette packages to distinguish products based on taste. And the package onsert cited by Intervenors includes the clear advisory that “Terms such as ‘Lights’ and ‘Ultra Lights’ do NOT mean safer.
These terms refer to taste.” D.E. 5891-18. Moreover, the FDA has closely
[Footnote continued on next page]

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Third, the “Here is the truth” clause at the conclusion of each preamble inaccurately implies that Defendants denied the “truth” of all that follows (and continue that deception to this day). In response, the Government offers up nothing more than a non sequitur: “this Court has already upheld the district court’s finding that Defendants’ representations regarding these five areas were intentionally misleading and has endorsed the propriety of corrective statements in these areas.” Gov’t Br. 28. That is true but irrelevant. The fact that the district court found that Defendants made misrepresentations on the five general topics addressed by the corrective statements says nothing about whether Defendants made misrepresentations with respect to the particular information in the body of each statement—for example, that “[s]moking kills, on average, 1200 Americans” a day. JA 158. Because the district court’s compelled statements are “subject to”

[Footnote continued from previous page]
monitored Defendants’ use of colors in their cigarette marketing. See Letter from Lawrence R. Deyton, Dir. Ctr. for Tobacco Prods., to Denise F. Keane, Exec. Vice President & Gen. Counsel, Altria Group, Inc. (June 17, 2010), available at www.fda.gov/TobaccoProduc… Information/ucm216154.htm. If Defendants ever engaged in a marketing practice intended to mislead the public, there is little doubt that the FDA would respond swiftly and harshly.

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precisely that “misinterpretation by consumers,” R.J. Reynolds Tobacco Co., 696 F.3d at 1216, they are not “purely factual and uncontroversial.”4
B. Numerous Other Aspects Of The Corrective Statements Are Not “Purely Factual And Uncontroversial.”
Like the confessional preambles, the bulletpoint statements that follow the preambles are pervaded by conduct-focused language and factual inaccuracies that are incompatible with the First Amendment.
For example, Statement B’s assertion that Defendants “intentionally designed cigarettes with enough nicotine to create and sustain addiction,” JA 158 (emphasis added), and Statement D’s assertions that Defendants “intentionally designed cigarettes to make them more addictive” and “maximize the ingestion of nicotine,” id. at 159, disregard the fact that, even without any adjustments made by Defendants, all cigarettes would be addictive. See Philip Morris USA Inc., 449 F. Supp. 2d at 208. The Government has no response, except to repeat that, according to the district court, Defendants did in fact “‘adjust[ ]’” nicotine levels.

The Government’s passing argument that Defendants waived this objection by failing to raise it in the district court, Gov’t Br. 27 n.5, is baseless. Although Defendants never had the opportunity to address the precise language of the district court’s corrective statements—which the court adopted in response to the parties’ competing proposals and without permitting further briefing and argument or any opportunity for market testing—Defendants raised the same objection to the “Here’s the truth” language in the Government’s proposed corrective statements. See D.E. 5881, at 12 (“[t]his prefatory language . . . falsely implies that Defendants denied the ‘truth’ of all that follows”); Oct. 15, 2012 Hr’g Tr. at 56.

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Gov’t Br. 33. But the Government never denies that the statements are susceptible to the “misinterpretation by consumers,” R.J. Reynolds Tobacco Co., 696 F.3d at 1216, that, in the absence of Defendants’ conduct, cigarettes somehow would not be addictive.
In response to Defendants’ argument that the district court never found that they “maximize the ingestion of nicotine,” JA 159 (emphasis added), the Government and Intervenors cite an industry document stating that a Defendant intended to “study[ ] all means to maximize nicotine content of tobacco” and an industry study from the 1970s involving the “maximiz[ation]” of “nicotine migration” from the tobacco to the outer periphery of a cigarette. Philip Morris USA Inc., 449 F. Supp. 2d at 320, 374; see also Gov’t Br. 35-36; Intervenors’ Br.
Neither of those isolated documents, however, indicates that Defendants sought in the past to maximize smokers’ ingestion of nicotine or that they continue to engage in that conduct today, as Statement D suggests. Indeed, the district court itself did not cite either of those documents to substantiate Statement D, instead pointing to its finding that Defendants used “cigarette design features . . . to control nicotine delivery.” JA 221 n.37 (emphasis added; internal quotation marks omitted).
Statement D’s assertion that “cigarette companies . . . add[ ] ammonia to make the cigarette taste less harsh” likewise sends the inaccurate message that

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adding ammonia to cigarettes is the universal practice of all cigarette companies. In response, the Government and Intervenors point to the district court’s findings that “[b]y 1993, all the cigarette company Defendants used some form of ammonia technology in some of their cigarette products” and that, in 2000, “Lorillard continued to use additives to affect smoke pH and produce ammonia.” Gov’t Br.
34-35 (internal quotation marks omitted; emphasis added); see also Intervenors’ Br. 35. But neither finding addresses Statement D’s clear—and erroneous— implication that all Defendants currently add ammonia to all cigarettes.
Finally, Statement C’s assertion that “‘Low tar’ and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes” incorrectly suggests that “regular” cigarettes are unfiltered and present no greater risks than filtered cigarettes. The Government and Intervenors cannot reconcile that statement with the district court’s finding that “the shift from unfiltered to filtered cigarettes . . . ‘probably tended to reduce the risk for lung cancer.’” Philip Morris USA Inc., 449 F. Supp. 2d at 448. Statement C also incorrectly suggests that smoker compensation—unconscious changes to smoking behavior that could lead smokers to obtain the same amount of tar and nicotine after switching to a lower-yield brand—is uniform and complete across smokers. Although the Government and Intervenors are able to identify studies that support that proposition, they cannot refute the district court’s finding that the studies “as a

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whole suggested that compensation is not complete but substantial.” Id. at 444 (emphasis added).
* * *

The Government attempts to diminish these factual inaccuracies as mere “quarrels” and “quibble[s].” Gov’t Br. 35, 38. But Zauderer provides a narrow exception to the First Amendment’s prohibition on compelled commercial speech, and the inaccuracies identified by Defendants underscore the gaping chasm between the district court’s compelled statements and the “purely factual and uncontroversial” statements authorized by Zauderer. Where the Government seeks to override a person’s “right to refrain from speaking,” Wooley, 430 U.S. at 714, its First Amendment burden “is not slight.” Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 143 (1994). The Government has fallen far short of meeting that burden here.
The District Court’s Corrective Statements Are Unduly Burdensome.
The district court’s corrective statements also violate the First Amendment because they are “unduly burdensome.” Zauderer, 471 U.S. at 651. By adopting inflammatory characterizations of Defendants’ past conduct and mandating dissemination through multiple, redundant media channels, the district court needlessly impaired Defendants’ First Amendment rights.

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The Government maintains that it is “essential” that the corrective statements “mak[e] consumers aware of prior deceptions.” Gov’t Br. 42 (internal quotation marks omitted). But the Government offers no legal or empirical support for this proposition. Nor does it address the finding of its own expert report that prefatory language attributing the statements to the Surgeon General and the National Cancer Institute was nearly as effective at grabbing attention and fostering credibility as confessional language. D.E. 5875-1 ¶¶ 217-18. In any event, the First Amendment standard is not whether a speech regulation is the most effective means of preventing future deception, without regard for a defendant’s substantial First Amendment interest in not being compelled to publicly declare itself a liar. Zauderer instead requires courts to strike a careful, constitutionally mandated balance between the Government’s interests and the speaker’s First Amendment rights in order to ensure that compelled disclosures do not “unduly burden[ ]” those rights.
Numerous less burdensome formulations of the corrective statements are available to further the Government’s anti-deception goal without compelling Defendants to shame themselves before the American public. Indeed, this Court recognized in its 2009 opinion that “[r]equiring Defendants to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements . . . in the future.” Philip Morris

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USA Inc., 566 F.3d at 1141 (emphasis added). This recognition is consistent with the long line of cases upholding compelled commercial disclosures that conveyed objective and unbiased product information to remedy past misstatements by the manufacturer. See Warner-Lambert Co., 562 F.2d at 763 (upholding statement that “Listerine will not help prevent colds or sore throats or lessen their severity” but rejecting the confessional preamble “Contrary to prior advertising”); see also Novartis Corp., 223 F.3d at 786. In accordance with those decisions, Defendants proposed corrective statements that would have provided consumers with public- health information on each of the five topics mandated by the district court. See JA 54, 64, 67, 76. Requiring Defendants instead to condemn themselves through the district court’s conduct-focused statements would be needlessly, and unconstitutionally, burdensome.
Those unnecessary burdens are exacerbated by the district court’s requirement that Defendants disseminate the statements through multiple, overlapping media channels. In response, the Government and Intervenors contend that Defendants should have pressed this argument in the earlier appeal from the district court’s Final Judgment and Remedial Order and are therefore foreclosed from doing so here. Gov’t Br. 53; Intervenors’ Br. 18-19. In the Consent Order regarding the corrective statements’ implementation, however, the Government and Intervenors expressly acknowledged that Defendants had

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“reserve[d] the right to challenge on appeal . . . the requirement that the Court- ordered Corrective Statements appear in the multiple media referenced in the Remedial Order and herein.” JA 457 (emphasis added). That should be the end of the matter.5
Moreover, at the time of Defendants’ appeal from the Final Judgment and Remedial Order, the district court had not yet specified the details of the corrective statements’ distribution. Thus, while the court had designated the media in which the statements would appear—including newspapers, television, websites, and package onserts—the Final Judgment and Remedial Order was silent regarding both the language of the statements and their size, format, and font, among other implementation details. In the absence of that implementation information, it would have been impossible for this Court to undertake a meaningful evaluation of the burdens imposed on Defendants in its 2009 opinion.

According to Intervenors, Defendants “may not rely on [the Consent] Order’s incorporation of the specific corrective statements exposure resolved in 2006 to claim a renewed opportunity to challenge that exposure, for the parties agreed they would not rely on the Consent Order in this appeal.” Intervenors’ Br. 19 n.1. As explained above, however, Defendants expressly reserved their right to challenge the requirement that the statements appear in multiple media formats. And while Defendants agreed not to “challenge on appeal the specific implementation executions” in the Order, JA 457, those implementation details are not at issue in this appeal.

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On the substance of Defendants’ challenge, the Government and Intervenors do not even attempt to explain why any dissemination beyond print and online newspapers—or, at most, newspapers and package onserts—is necessary. See Defs. Br. 46-47. Those alternative distribution plans would still result in the dissemination of the statements to tens of millions of smokers and nonsmokers.
And, they would unquestionably prevent Defendants from making inconsistent statements in the future—for the simple reason that no one would believe Defendants if they suddenly took positions about their products that were at odds with the ones they had staked out time and again in countless corrective statements. That more measured approach—statements that provided “purely factual and uncontroversial” public-health information in newspapers and, if necessary, onserts—would strike the appropriate constitutional balance between the Government’s interests and Defendants’ First Amendment rights.
The District Court’s Corrective Statements Cannot Withstand Any Form of First Amendment Scrutiny.
The controversial, nonfactual, and needlessly burdensome features of the district court’s corrective statements render them incompatible with this Court’s mandate, which is a sufficient ground, standing alone, for vacating that remedy. Moreover, because the statements fail to comply with Zauderer’s narrow safe harbor for compelled commercial disclosures, they also necessarily violate the First Amendment. See Am. Meat Inst., 760 F.3d at 27 (“[O]ne could think of Zauderer

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largely as an application of Central Hudson . . . .”) (emphasis and internal quotation marks omitted). In any event, even if the Court were required to conduct a constitutional inquiry separate from Zauderer, the Government and Intervenors would be unable to reconcile the district court’s corrective statements with the requirements of the First Amendment.
Because the corrective statements predominantly target Defendants’ conduct instead of providing information about the “efficacy, safety, and quality of [Defendants’] product[s],” Philip Morris USA Inc., 566 F.3d at 1143 (emphasis added), they do not qualify for review under Central Hudson’s commercial-speech framework and must be evaluated under strict scrutiny. Unable to reconcile the corrective statements with that stringent standard, the Government contends that this Court’s 2009 opinion rejected the application of strict scrutiny to the corrective statements. Gov’t Br. 55. But that opinion addressed Defendants’ wholly distinct argument that “the stand-alone corrective statements do not fall within the commercial speech doctrine because they are not attached to advertisements.” Philip Morris USA Inc., 566 F.3d at 1143. Defendants’ position here, in contrast, is that the language of the corrective statements—which was not before the Court when it issued its 2009 opinion—does not constitute commercial speech because it focuses on Defendants’ conduct, rather than their products. The Court had no

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occasion to consider that issue when it reviewed the district court’s Final Judgment and Remedial Order.
Moreover, the district court’s statements would be unconstitutional even if examined under Central Hudson. The Government has not shown, through record evidence, that requiring Defendants to vilify and shame themselves through needlessly redundant compelled communications “directly and materially advances,” and is “narrowly tailored” to serve, a “substantial” governmental interest. R.J. Reynolds Tobacco Co., 696 F.3d at 1212. The Government’s assertion that the confessional language “helps ensure the accuracy of commercial information about cigarettes” and “advances the government’s substantial interest in preventing and restraining” future RICO violations, Gov’t Br. 56-57, is pure ipse dixit. The district court’s corrective statements were never market tested to determine their impact on the public, and the district court made clear that it did “not rel[y] on the [Government’s expert] report,” which included market testing of the parties’ proposed statements. See JA 213 n.15. In any event, the Government fails to account for the availability of numerous less burdensome means of achieving its objectives. See supra pg. 21-22. In addition, the decision cited by the Government in support of its Central Hudson analysis is manifestly inapposite because it upheld the disclosure of objective, product-focused information, not inflammatory, conduct-centered confessions. See Spirit Airlines, Inc. v. U.S. Dep’t

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of Transp., 687 F.3d 403, 415 (D.C. Cir. 2012) (upholding a requirement that airlines display total price most prominently in any advertising).
The Government further maintains that, despite the preamble that Defendants “deliberately deceived the American public,” the corrective statements are compatible with Central Hudson because the conduct-focused elements disclose “Defendants’ past deceptions about their products.” Gov’t Br. 57 (emphasis in original). But the mere connection between Defendants’ past conduct and their products does not mean that statements of compelled self-condemnation can be equated with commercial disclosures about the “efficacy, safety, and quality of [Defendants’] product[s].” Philip Morris USA Inc., 566 F.3d at 1143. Indeed, in the only case the Government cites in support of this argument, it was critically important that the challenged disclosure was “directly informative of intrinsic characteristics of the product.” Am. Meat Inst., 760 F.3d at 27 (emphases added).
The same cannot be said for the district court’s statements regarding alleged misconduct by Defendants in public statements made up to six decades ago.
Ultimately, the Government offers no reason to doubt what this Court has already said: “Requiring Defendants to reveal the previously hidden truth about their products” will effectively serve the Government’s interest in preventing future consumer deception. Philip Morris USA Inc., 566 F.3d at 1140. The district court’s unprecedented, conduct-focused statements, however, bear little

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resemblance to the statements this Court contemplated and the First Amendment authorizes.
The District Court’s Corrective Statements Violate RICO And This Court’s Mandate.
By compelling Defendants to disseminate statements in which they condemn their own past conduct—much of which took place in the 1950s, ’60s, and ’70s— the district court also exceeded its limited jurisdiction “to prevent and restrain violations” of RICO. 18 U.S.C. § 1964(a). This Court has reaffirmed on multiple occasions that “Congress limited relief under section 1964(a) to forward-looking remedies.” Philip Morris USA Inc., 566 F.3d at 1139 (emphasis added).
The Government and Intervenors contend that the statements’ retrospective, conduct-focused language is appropriate under Section 1964(a) because it “decreas[es] the risk that Defendants will, in the future, deny the product information described accurately in the corrective statements.” Gov’t Br. 42; see also Intervenors’ Br. 27. But the same thing could have been said about the counter-marketing campaign that Intervenors proposed and this Court rejected in its 2009 opinion. That remedy would have “requir[ed] Defendants to fund a . . . public education . . . campaign aimed at diluting both the impact of Defendants’ fraudulent statements and at undermining the efficacy of Defendants’ marketing efforts towards youth.” Philip Morris USA Inc., 566 F.3d at 1147 (internal quotation marks and alteration omitted). According to Intervenors, the remedy

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would have “eliminate[d] Defendants’ incentive to market their products fraudulently by shrinking Defendants’ customer base,” but this Court rejected that “general deterrence” justification and emphasized that “hurt[ing] a civil RICO violator” does not mean that a remedy “serves to ‘prevent and restrain’ future RICO violations.” Id. at 1148.
The district court’s corrective statements suffer from the same jurisdictional flaw. While requiring Defendants to humiliate and shame themselves by publicly condemning their own past conduct might have a “general deterren[t]” effect on future deception by Defendants, those statements are impermissibly “aimed at and measured by past conduct.” United States v. Philip Morris USA Inc., 396 F.3d 1190, 1198, 1200 (D.C. Cir. 2005) (emphasis in original). To “prevent and restrain” future RICO violations, the statements must instead “[r]equir[e] Defendants to reveal the previously hidden truth about their products,” which will “impair[ ]” Defendants “in making false and misleading statements” on those topics in the future. Philip Morris USA Inc., 566 F.3d at 1140 (emphasis added).
The backward-looking perspective of the district court’s statements is particularly apparent in Statement C, which addresses “light” and “low tar” descriptors that have been prohibited by federal law since 2010. See The Family Smoking Prevention and Tobacco Control Act of 2009 (“Tobacco Control Act”), Pub. L. No. 111-31, 123 Stat. 1776. According to the Government, Statement C

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remains a permissible means of “prevent[ing] and restrain[ing]” future RICO violations because this Court decided in a prior appeal not to vacate the district court’s descriptor-related injunctions as moot in light of the Tobacco Control Act. Gov’t Br. 31-32; see also United States v. Philip Morris USA Inc., 686 F.3d 832, 837 n.1 (D.C. Cir. 2012). That case, however, was decided before the district court specified the language of Statement C and therefore did not consider whether that particular formulation of the statement—which uses the now-defunct terms “light” and “low tar,” and close variations of those terms, eleven times—is within the court’s jurisdiction. While Defendants may not have shouldered the “formidable burden” of establishing that all descriptor-related relief is moot, Philip Morris USA Inc., 686 F.3d at 838 (internal quotation marks omitted), the district court’s limited jurisdiction under Section 1964(a) does not empower it to promulgate a statement with the overwhelmingly retrospective focus of Statement C.
The District Court’s Corrective Statements Violate Due Process.
Finally, neither the Government nor Intervenors seriously dispute that the district court’s statements will shame and humiliate Defendants and impose serious collateral consequences, such as tainting future jury pools exposed to the statements’ inflammatory messages. Nor do they cite any precedent suggesting that it is consistent with due process to impose such a punitive measure in a civil case. The Government instead contends that the statements are necessarily civil in

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nature because Congress intended to authorize a civil remedy under Section 1964(a). Gov’t Br. 59-60. But that is mere question-begging: The fact that Congress intended Section 1964(a) to be used to impose civil remedies does not mean that the district court’s corrective-statements order is a permissible civil sanction.
For their part, Intervenors dispute Defendants’ due process argument on the ground that this Court’s 2009 opinion upheld the district court’s authority to order corrective statements regarding Defendants’ alleged “‘manipulation of cigarette design and composition’” and rejected Defendants’ notice-based due process challenge. Intervenors’ Br. 41 n.9 (quoting Philip Morris USA Inc., 566 F.3d at 1138). As already explained, however, this Court had no opportunity to consider the particular language of the district court’s corrective statements in its 2009 opinion. And, the due process challenge Defendants raised in that earlier appeal— which pertained to the timing of the Government’s corrective-statements proposal in the district court, Philip Morris USA Inc., 566 F.3d at 1138-39—is entirely separate from their present argument that the district court violated due process by fashioning corrective statements that are inherently punitive and improperly imposing that remedy without affording Defendants the protections of a criminal trial.

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CONCLUSION
This Court should vacate the district court’s orders setting forth the content and scope of the corrective statements.
Dated: January 7, 2015 Respectfully submitted,

Noel J. Francisco Peter J. Biersteker JONES DAY
51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Facsimile: (202) 626-1700

Geoffrey K. Beach
R. Michael Leonard
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC
One West Fourth Street Winston-Salem, NC 27101
Telephone: (336) 721-3721
Facsimile: (336) 733-8389

Counsel for Appellant
R.J. Reynolds Tobacco Company

Michael B. Minton Bruce D. Ryder
A. Elizabeth Blackwell THOMPSON COBURN LLP
One U.S. Bank Plaza, Suite 3500 St. Louis, MO 63101-1693
Telephone: (314) 552-6000
Facsimile: (314) 552-7597

Counsel for Appellant Lorillard Tobacco Company
/s/ Miguel A. Estrada Miguel A. Estrada
Amir C. Tayrani Carlo D. Marchioli
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W. Washington, D.C. 20036
Telephone: (202) 955-8257
Facsimile: (202) 530-9616

Thomas J. Frederick WINSTON & STRAWN LLP
35 West Wacker Drive Chicago, IL 60601-9703
Telephone: (312) 558-6700
Facsimile: (312) 558-5700

Counsel for Appellants Philip Morris USA Inc. and Altria Group, Inc.

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation established by Federal Rule of Appellate Procedure 32(a)(7)(B)(ii) because it contains 6,987 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced font using Microsoft Word 2010 in 14-point Times New Roman type.
Dated: January 7, 2015

/s/ Miguel A. Estrada Miguel A. Estrada

Counsel for Appellants Philip Morris USA Inc. and Altria Group, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of January, 2015, I electronically filed the foregoing Appellants’ Reply Brief with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Miguel A. Estrada Miguel A. Estrada

Counsel for Appellants Philip Morris USA Inc. and Altria Group, Inc.

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