Rise of the Planet of the Monkey Wrenches

October 1, 2015 12:11 pm by Gene Borio

Judge Kessler came into court today impatient with the parties’ lack of progress on wording for the corrective statements that adheres to May’s Court of Appeals ruling. She left court with, I’m sure, a headache-inducing blow from a monkey wrench thrown from out of nowhere, and a horrifying vision of the proceedings going on for much, much longer.

She started by expressing some dismay that, “despite a substantial period of time,” the parties were unable to come to an agreement for ONE fragment of a sentence that the Court of Appeals wants changed.

The first felt blow came from Noel Francisco, who said that actually, the entire preamble is at issue here, not just that fragment.

Judge Kessler said, “We must be reading different Court of Appeals rulings.”

She set a schedule for dealing with the ruling:

By 5pm Oct 26 (ie, 3 weeks from now) Defendants will file a brief.

By 5PM Nov 16: The Government will reply. That gives USA 3 weeks to respond

By 5PM Nov. 25, Defendants will submit a reply to Government’s brief.

Judge Kessler will then use the briefs to decide the issue.

Implied was that everyone can then have a nice Thanksgiving recess.

DOJ’s Daniel Crane-Hirsch spoke to the issue of “implementation.” Since the change in wording may affect fonts, layouts, etc., these issues should be combined in the upcoming briefs.

Judge Kessler was clearly displeased that implementation had become an issue, and that “We have wasted all this time. Clearly someone is reading the Court of Appeals ruling differently than I am.”

Daniel Crane-Hirsch didn’t want a further round of briefings on layout, and urged Judge Kessler to rule in that regard also in the next round of briefs.

Howard Crystal said the Intervenors agree with the Government, and, along with Judge Kessler, are concerned that a lot of time would be taken up with an extremely minor issue; any changes to the layout, he said, would be minor, and only for consistency. As for Point of Sale issues, all is completely briefed, as Judge Kessler had mentioned, and he looked forward a quick resolution.

Noel Francisco for RJR said the layout issue was not simple, citing the 27 pages in Order #51 (CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS REMEDY UNDER ORDER #1015 AND ORDER #34-REMAND). He also mentioned a hundred further pages (presumably the exhibit list in Order #51). He noted how long it took to negotiate the issue, to specify font characteristics (color, size, style, etc.), page breaks, etc. And it involved a LOT of consultants in several media–newspapers, websites, onserts, ads, etc. Renogiating those 27 in Order #51 pages in 3 weeks? It’s just not realistic, he said.

Daniel Crane-Hirsch suggested Judge Kessler implement an accelerated schedule addressing both issues at the same time, and involving simultaneous reply briefs.

Judge Kessler said she’d have to think about this, and would issue a schedule by the end of the day. She felt there was NO NEED for further negotiations on the layout issue.

Noel Francisco agreed with Crane-Hirsch on his simultaneous brief schedule, but, Judge Kessler warned, “If I do that–someone’s going to be working over Thanksgiving.”

But OK, there. That’s settled.

And that’s when a monkey wrench by the name of Elizabeth McCallum for ITG threw itself into the works. Ms. McCallum stood up to say that ITG would like to file a brief in the matter.

Judge Kessler asked if circumstances had changed since the court’s hearings on ITG’s entry into the case, and asked pointedly, “Will your brief cause the Government to file any kind of response?”

McCallum said, essentially, “May be.” (Just listen to that monkey wrench clattering loudly all around the hushed courtroom. Duck, Judge Kessler! DUCK!)

McCallum emphasized ITG’s special position, and that ITG had agreed to corrective statements in onserts, packaging and websites (but not on TV and in newspapers, because those venues are “already covered by other manufacturers”).

Howard Crystal–emphasizing that he was speaking for the record–said that the Court had been specifically concerned about the remedies upon ITG’s entry into the case (upon the merger of Reynolds and Lorillard), and that the court had been assured that the presence of ITG would change NOTHING in regards to remedies.

Stay tuned and keep your head down . . .

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