USA v. MO APPEAL: APPELLANT’S OPENING BRIEF, Feb 16, 2016

February 18, 2016 7:31 am by Gene Borio

The PDF is Here

EXCERPT:

I. RJRT Is Entitled To Relief Under Rule 60(b)(4) Because The
District Court Lacked Jurisdiction To Require B&W Tobacco
To Publish Corrective Statements On Television. …………. 17

A. A Provision Of An Order That Exceeds The District Court’s
Jurisdiction Is “Void” Under Rule 60(b)(4). …………….. 17

B. Ordering B&W Tobacco To Publish Corrective Statements
On Television Will Not “Prevent And Restrain” Future RICO
Violations. ……………. 20

1. B&W Tobacco No Longer Exists And Therefore Cannot
Engage in Future RICO Violations. ……………. 21

2. Requiring RJRT To Publish The Same Statements Twice
Will Not Prevent And Restrain RJRT From Engaging In
Future RICO Violations. …………… 22

C. This District Court’s Reasons For Denying RJRT’s Rule
60(b)(4) Motion Are Legally Erroneous. …………. 25

1. This Court Has Squarely Held That § 1964(a) Constrains
The District Court’s Remedial Jurisdiction………….. 26

2. RJRT Did Not “Inherit” B&W Tobacco’s Obligations Under
Order #1015. ……………. 29

II. Alternatively, RJRT Is Entitled To Relief Under Rule 60(b)(6)
Because Requiring RJRT To Run A Second, Redundant Set Of
Corrective Statements On Television Is Unjust. ……………. 32

A. There Is No Logical Basis For Requiring RJRT To Run Two
Sets of Corrective Statements On Television. …………… 32

B. The District Court Abused Its Discretion In Denying RJRT’s
Rule 60(b)(6) Motion. …………… 35

END EXCERPT

FULL TEXT:

ORAL ARGUMENT NOT YET SCHEDULED

No. 15-5210

________________________________________

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 Order of the United States District Court

for the District of Columbia

1:99-cv-02496-GK

________________________________________

APPELLANT’S OPENING BRIEF

________________________________________

Noel J. Francisco

Peter J. Biersteker

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Jeffrey A. Mandell

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Madison, WI 53703

Telephone: (608) 256-0226

Facsimile: (608) 259-2600

Geoffrey K. Beach

WOMBLE CARYLE SANDRIDGE & RICE LLP

One West Fourth Street

Winston-Salem, NC 27101

Telephone: (336) 721-3600

Facsimile: (336) 721-3660

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Appellant R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation) files the following Certificate as to Parties, Rulings, and Related Cases.

Parties, Intervenors, and Amici

1. District Court

The following is a list of parties, intervenors, and amici that appeared before the district court.

Parties: Plaintiff was the United States of America. Defendants were Philip Morris USA Inc., Altria Group, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, British American Tobacco (Investments) Ltd., The Council for Tobacco Research–U.S.A., Inc., The Tobacco Institute, Inc., and Liggett Group, Inc. ITG Brands, LLC, Commonwealth Brands, Inc., and Commonwealth-Altadis, Inc. were Post-Judgment Parties Regarding Remedies.

Intervenors: Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, National African American Tobacco Prevention Network, Elan Corporation, PLC, Glaxosmithkline Consumer Healthcare, L.P., Impax Laboratories, Inc., Pfizer, Inc., Pharmacia Corporation, Smithkline Beecham Corporation, and Novartis Consumer Health Inc.

Amici: Citizens’ Commission to Protect the Truth, Regents of the University of California, Tobacco Control Legal Consortium, Essential Action, City and County of San Francisco, Asian-Pacific Islander American Health Forum, San Francisco African American Tobacco Free Project, Black Network in Children’s Emotional Health, the Attorneys General of Arkansas, Connecticut, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Vermont, Washington, Wisconsin, Wyoming, and District of Columbia, National Association of Black Owned Broadcasters, Fox Broadcasting Company, National Newspaper Publishers Association, National Association for the Advancement of Colored People, Viacom Inc., A&E Television Networks, LLC, Interactive One, LLC, Radio One, Inc., TV One, LLC, Univision Communications Inc., CW Television Network, Little Rock Sun, and Turner Broadcasting System, Inc.

2. Court of Appeals

Parties: Appellant is R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation). Appellee is the United States of America.

Intervenors: Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, and National African American Tobacco Prevention Network.

Amici: None.

Rulings Under Review

Defendant-Appellant appeals from Order #55-Remand (JA098-102), entered by Judge Gladys Kessler on May 28, 2015, which denied Defendant R.J. Reynolds Tobacco Company’s Motion for Relief from Provisions of Order #1015 That Require Brown & Williamson Tobacco Corporation to Publish Corrective Statements on Television (Dkt. No. 6103, filed June 11, 2014). Order #55-Remand is not available through online commercial databases.

Related Cases

This case was previously before this Court in the following appeals: 01- 5244 (United States v. Philip Morris Inc.); 02-5210 (United States v. Philip Morris Inc.); 04-5207, 04-5208 (United States v. British American Tobacco (Investments) Ltd.); 04-5252 (United States v. Philip Morris USA Inc.); 04-5358, 05-5129 (United States v. British American Tobacco Australia Services Ltd.); 06-5267, 06-5268, 06-5269, 06-5270, 06-5271, 06-5272, 06-5332, 06-5367, 07-5102, 07-5103 (United States v. Philip Morris USA Inc.); 11-5145 (United States v. Philip Morris USA Inc.); 11-5146 (United States v. Philip Morris USA Inc.); and 13-5028, 14- 5161 (United States v. Philip Morris USA Inc.).

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule

26.1, Defendant-Appellant R.J. Reynolds Tobacco Company makes the following disclosures:

R.J. Reynolds Tobacco Company is a wholly owned subsidiary of R.J. Reynolds Tobacco Holdings, Inc., which in turn is a wholly owned subsidiary of Reynolds American Inc., a publicly held company. British American Tobacco, p.l.c., a publicly held corporation, and its subsidiaries collectively own more than 10% of the stock of Reynolds American Inc.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES …………. i

CORPORATE DISCLOSURE STATEMENT ………. iv

TABLE OF CONTENTS ………. v

TABLE OF AUTHORITIES ………. vii

GLOSSARY ………… 1

JURISDICTIONAL STATEMENT ……….. 1

STATEMENT OF THE ISSUES……………. 2

PERTINENT STATUTORY PROVISIONS …………… 3

STATEMENT OF RELEVANT FACTS ………… 4

SUMMARY OF THE ARGUMENT …………….14

STANDARD OF REVIEW ………….16

ARGUMENT ……………..17

I. RJRT Is Entitled To Relief Under Rule 60(b)(4) Because The
District Court Lacked Jurisdiction To Require B&W Tobacco
To Publish Corrective Statements On Television. …………. 17

A. A Provision Of An Order That Exceeds The District Court’s
Jurisdiction Is “Void” Under Rule 60(b)(4). …………….. 17

B. Ordering B&W Tobacco To Publish Corrective Statements
On Television Will Not “Prevent And Restrain” Future RICO
Violations. ……………. 20

1. B&W Tobacco No Longer Exists And Therefore Cannot
Engage in Future RICO Violations. ……………. 21

2. Requiring RJRT To Publish The Same Statements Twice
Will Not Prevent And Restrain RJRT From Engaging In
Future RICO Violations. …………… 22

C. This District Court’s Reasons For Denying RJRT’s Rule
60(b)(4) Motion Are Legally Erroneous. …………. 25

1. This Court Has Squarely Held That § 1964(a) Constrains
The District Court’s Remedial Jurisdiction………….. 26

2. RJRT Did Not “Inherit” B&W Tobacco’s Obligations Under
Order #1015. ……………. 29

II. Alternatively, RJRT Is Entitled To Relief Under Rule 60(b)(6)
Because Requiring RJRT To Run A Second, Redundant Set Of
Corrective Statements On Television Is Unjust. ……………. 32

A. There Is No Logical Basis For Requiring RJRT To Run Two
Sets of Corrective Statements On Television. …………… 32

B. The District Court Abused Its Discretion In Denying RJRT’s
Rule 60(b)(6) Motion. …………… 35

CONCLUSION …………..41

CERTIFICATE OF COMPLIANCE ……………..43

CERTIFICATE OF SERVICE ……………..44

TABLE OF AUTHORITIES

Cases

Am. Steel Foundries v. Tri–City Cent. Trades,

257 U.S. 184 (1921) …………31

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) …………29

Austin v. Smith,

312 F.2d 337 (D.C. Cir. 1962) ……………. 18, 19

* Bell Helicopter Textron, Inc. v. Islamic Republic of Iran,

734 F.3d 1175 (D.C. Cir. 2013) ………….. 17, 18, 22, 26, 29

* Authorities upon which we chiefly rely are marked with asterisks.

Combs v. Nick Garin Trucking,

825 F.2d 437 (D.C. Cir. 1987) ……………. 18, 22

Commodity Futures Trading Comm’n v. Nahas,

738 F.2d 487 (D.C. Cir. 1984) …………..18

Computer Prof’ls for Social Responsibility v. U.S. Secret Serv.,

72 F.3d 897 (D.C. Cir. 1996) ……… 16, 41

David v. Dist. of Columbia,

252 F.R.D. 56 (D.D.C. 2008) …………….22

Doe v. U.S. Dep’t of Justice,

753 F.2d 1092 (D.C. Cir. 1985) …………18

F.T.C. v. Boehringer Ingelheim Pharm., Inc.,

778 F.3d 142 (D.C. Cir. 2015) ……………. 16, 35

Foretich v. Am. Broad. Cos.,

198 F.3d 270 (D.C. Cir. 1999) …………..16

Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982) …………18

* Karsner v. Lothian,

532 F.3d 876 (D.C. Cir. 2008) …………. 17, 18, 26, 29

Klapprott v. United States,

335 U.S. 601 (1949) …………32

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) …………28

Lightfoot v. Dist. of Columbia,

555 F. Supp. 2d 61 (D.D.C. 2008) ………. 40, 41

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988) …………32

Loughlin v. United States,

393 F.3d 155 (D.C. Cir. 2004) …………..16

Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC,

464 F. Supp. 2d 495 (E.D. Va. 2006) ………….31

Marino v. Drug Enforcement Admin.,

685 F.3d 1076 (D.C. Cir. 2012) …………16

Morrison v. Nat’l Austl. Bank, Ltd.,

561 U.S. 247 (2010) …………29

Muwekma Tribe v. Norton,

206 F. Supp. 2d 1 (D.D.C. 2002) ……….22

Nw. Airlines, Inc. v. County of Kent, Mich.,

510 U.S. 355 (1994) …………29

Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365 (1978) …………18

Practical Concepts, Inc. v. Republic of Bolivia,

811 F.2d 1543 (D.C. Cir. 1987) …………17

Richard v. Hoechst Celanese Chem. Grp. Inc.,

355 F.3d 345 (5th Cir. 2003) ……………..27

* S.E.C. v. Bolla,

550 F. Supp. 2d 54 (D.D.C. 2008) …………. 18, 19, 20

* Salazar ex rel. Salazar v. Dist. of Columbia,

633 F.3d 1110 (D.C. Cir. 2011) ……….. 32, 37, 38, 41

Smith v. Widman Trucking & Excavating, Inc.,

627 F.2d 792, 798 & n.7 (7th Cir. 1980) ……….38

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) …………..29

Twelve John Does v. Dist. of Columbia,

841 F.2d 1133 (D.C. Cir, 1988) …………16

United States ex rel. Cyr v. SWL Inc.,

No. 97-7048, 1998 WL 104584 (D.C. Cir. Jan. 30, 1998) ……… 16, 35

United States v. Carson,

52 F.3d 1173 (2d Cir. 1995) ………27

United States v. Philip Morris USA, Inc.,

321 F. Supp. 2d 72 (D.D.C. 2004) ………. 6

* United States v. Philip Morris USA Inc.,

396 F.3d 1190 (D.C. Cir. 2005) …………… 2, 4, 6, 7, 17, 20,

21, 25, 26, 27, 28

United States v. Philip Morris USA, Inc.,

449 F. Supp 2d 1 (D.D.C. 2006) ……… 8, 21, 24

* United States v. Philip Morris USA Inc.,

566 F.3d 1095 (D.C. Cir. 2009) ……………. 2, 5, 6, 10, 11, 22, 23,

25, 27, 28, 36, 39

United States v. Philip Morris USA, Inc.,

907 F. Supp. 2d 1 (D.D.C. 2012) …………… 12, 30, 40

* United States v. Philip Morris USA Inc.,

801 F.3d 250 (D.C. Cir. 2015) …………….. 5, 10, 11, 15, 23,

25, 28, 33, 34, 38

United States v. Thomas,

572 F.3d 945, 949 (D.C. Cir. 2009) ………38

Statutes

* 18 U.S.C. § 1964(a) …………. 2, 3, 4, 5, 6, 7, 10, 13, 14, 15, 17, 20

22, 23, 25, 26, 27, 28, 29, 33, 41

28 U.S.C. § 1292 ……….. 1, 5, 6, 12, 38

28 U.S.C. § 1331 ………….. 1

28 U.S.C. § 1345 ………….. 1

28 U.S.C. § 2201 ………….. 1

Rules

Circuit Rule 28 …………….. 1

Fed. R. App. P. 4 ………….. 1

* Fed. R. Civ. P. 60 ……… 3, 13, 14, 15, 16, 17, 18, 19, 20, 22,

25, 26, 32, 34, 35, 37, 38, 39, 40, 41

Other Authorities

11 Charles Alan Wright, et al.,

FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2864 (3d ed.) ………….39

11 Charles Alan Wright, et al.,

FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2866 (3d ed.) ………….38

GLOSSARY

Pursuant to Circuit Rule 28(a)(3), Defendant-Appellant R.J. Reynolds Tobacco Company provides this list of abbreviations, acronyms, and initialisms used in its brief:

B&W Tobacco Brown & Williamson Tobacco Corporation

BATCo British American Tobacco (Investments) Limited

BWH Brown & Williamson Holdings, Inc.

LTC Lorillard Tobacco Company

RICO Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968

RJRT R.J. Reynolds Tobacco Company

JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction in this action under 28 U.S.C. §§ 1331, 1345, and 2201. On July 23, 2015, Defendant-Appellant RJRT (individually and as successor to B&W Tobacco) filed its Notice of Appeal from Order #55-Remand, entered by the district court on May 28, 2015. (JA103.) Because the Defendant-Appellant filed this appeal fewer than sixty days after the district court issued Order #55-Remand, the appeal is timely. See Fed. R. App. P. 4(a)(1)(B). Because this is an appeal from an interlocutory order refusing to modify an injunction, this Court has jurisdiction under 28 U.S.C. § 1292(a).

STATEMENT OF THE ISSUES

(1) This Court held that the district court had jurisdiction “only to enter orders ‘to prevent and restrain’” future RICO violations. United States v. Philip Morris USA Inc., 396 F.3d 1190, 1992 (D.C. Cir. 2005) (quoting 18 U.S.C. § 1964(a)). B&W Tobacco ceased to exist when it merged its tobacco business with RJRT two years before the district court entered Order #1015. Given that B&W Tobacco cannot engage in future RICO violations, does the district court have authority to enforce provisions of Order #1015 that impose affirmative obligations on “Brown & Williamson”?

(2) This Court affirmed the corrective-statements remedy on the theory that requiring the tobacco companies “to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.” United States v. Philip Morris USA Inc., 566 F.3d 1095, 1140 (D.C. Cir. 2009). The district court ordered RJRT to broadcast the corrective statements on national television once each week on its own behalf and a second time each week on behalf of B&W Tobacco. Should the district court have granted RJRT’s motion for relief from the weekly requirement to sponsor—on behalf of a non-existent company—a second, redundant television broadcast that provides no additional restraint against future RICO violations?

PERTINENT STATUTORY PROVISIONS

The relevant portion of RICO provides:

The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

18 U.S.C. § 1964(a).

Federal Rule of Civil Procedure 60 provides, in relevant part:

Rule 60. Relief From a Judgment or Order

. . .

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

. . .

STATEMENT OF RELEVANT FACTS

This appeal arises out of long-running litigation commenced in 1999, in which the Government sued numerous tobacco manufacturers, including R.J. Reynolds Tobacco Company (“RJRT”) and Brown & Williams Tobacco Corporation (“B&W Tobacco”) under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Among other things, the district court invoked its remedial jurisdiction under 18 U.S.C. § 1964(a) to order the Defendant tobacco companies to publish corrective statements in a variety of forums, including on television. Of relevance here, the district court imposed this remedial obligation on “each Defendant” and now asserts that this includes both RJRT and B&W Tobacco. As discussed below, however, by the time this case proceeded to trial—and at the time the district court entered its remedial order— B&W Tobacco no longer existed. Consequently, the issue in this appeal is whether the district court exceeded its remedial jurisdiction under § 1964(a) in ordering B&W Tobacco to publish corrective statements on television.

Set forth below are the facts and circumstances relevant to the resolution of this issue. A more detailed understanding of the procedural history of this case can be found in this Court’s prior opinions addressing various issues that have arisen during the course of this long-running case, including United States v. Philip Morris USA Inc., 396 F.3d 1190 (D.C. Cir. 2005) (“Disgorgement Decision”);

United States v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009) (“Remedial Decision”); and United States v. Philip Morris USA Inc., 801 F.3d 250 (D.C. Cir. 2015) (“Corrective Statements Decision”).

1. This case commenced in 1999, when the United States filed suit against major tobacco companies and industry organizations, alleging that they had violated RICO by working together to conceal information about cigarette smoking and health. Both RJRT and B&W Tobacco were named defendants in the Government’s complaint. (See Dkt. No. 1, filed Sept. 22, 1999).

The Government relied upon a single remedial provision of RICO, which grants district courts authority to issue “appropriate orders” that will “prevent and restrain” future RICO violations. 18 U.S.C. § 1964(a). Based on that narrow statutory authorization, the Government requested that the district court require the tobacco companies to disgorge $289 billion in profits from past cigarette sales and enter a broad, permanent injunction imposing numerous restrictions on the companies’ cigarette businesses.

The Defendant tobacco companies moved for partial summary judgment on the disgorgement issue, arguing that the proposed remedy exceeded the district court’s limited authority under 18 U.S.C. § 1964(a) “to prevent and restrain” future RICO violations. In May 2004, the district court denied Defendants’ motion and, thereafter, certified its disgorgement order for interlocutory appeal under 28 U.S.C.

§ 1292(b). See United States v. Philip Morris USA, Inc., 321 F. Supp. 2d 72 (D.D.C. 2004). On July 15, 2004, this Court granted Defendants’ petition to appeal the disgorgement order. (Dkt. No. 3458, filed July 15, 2004.)

2. On July 30, 2004—two months before this case went to trial— Defendant B&W Tobacco merged all of its domestic tobacco operations with Defendant RJRT. See Reynolds Am. Inc., Quarterly Report (Form 10-Q) at 6 (Nov. 5, 2004). As a result, B&W Tobacco ceased to exist as a separate entity. The remnants of B&W Tobacco were “reconstituted into Brown & Williamson Holdings (‘BWH’).” Remedial Decision, 566 F.3d at 1135. BWH, however, did not engage in the design, manufacturing, distribution, marketing, or sales in the United States of cigarette products; those functions, rather, were merged with RJRT.

3. This case then proceeded to trial. The trial began in September 2004 and concluded in June 2005. Throughout the trial, the only “Brown & Williamson” entity that existed was BWH. See Notice of Name Change of Def. B&W Tobacco (JA001).

4. In February 2005, while trial in this case was ongoing in the district court, this Court issued its decision on the disgorgement issue, holding that § 1964(a) does not authorize district courts to award disgorgement of past profits. See Disgorgement Decision, 396 F.3d at 1192. In reaching its conclusion, this

Court repeatedly held that § 1964(a) limited the district court’s remedial jurisdiction. As this Court explained, § 1964(a) “conferred jurisdiction on the District Court only to enter orders ‘to prevent and restrain violations of [RICO]’” and “provide[d] jurisdiction … limited to forward-looking remedies that are aimed at future violations.” Id. at 1192, 1198 (quoting 18 U.S.C. § 1964(a)) (emphases added). As a result, this Court concluded, the district court’s power to enter remedies in this case was “restricted by the statutory language” of § 1964(a), which “granted only the jurisdiction which we set forth above,” id. at 1197-99 (emphasis added).

In response to this Court’s Disgorgement Decision, the district court gave the Government additional time to formulate and offer evidentiary support for new remedies it had not previously requested. See Order #898 (Dkt. No. 5013, filed Mar. 16, 2005). The district court also allowed six public health organizations to intervene in the litigation “‘for the very limited purpose of being heard on the issue of the permissible and appropriate remedies in this case, should the Court find the defendants liable.’” Mem. Op. (Dkt. No. 5565, filed July 22, 2005). All parties— the Government, Defendants, and the Public Health Intervenors—then filed extensive proposed findings of fact and post-trial briefing. (See Dkt. Nos. 5595, 5597 & 5599, filed Aug. 15, 2005; Dkt. No. 5606, filed Aug. 24, 2005; Dkt. No. 5641-2, filed Sept. 1, 2005; Dkt. Nos. 5656 & 5659, filed Sept. 7, 2005; Dkt. No.

5669-1, filed Sept. 14, 2005; Dkt. Nos. 5673 & 5674, filed Sept. 19, 2005; Dkt. No. 5679, filed Sept. 26, 2005; Dkt. No. 5680, filed Sept, 27, 2005; Dkt. No. 5686, filed Sept. 29, 2005.)

5. Approximately one year later, on August 17, 2006, the district court issued its Final Judgment and Remedial Order (“Order #1015”), which set forth extensive factual findings and imposed the vast majority of the injunctive restrictions that the Government and Intervenors had sought. See United States v. Philip Morris USA, Inc., 449 F. Supp 2d 1 (D.D.C. 2006). Order #1015, by its own terms, “applie[d] to each of the Defendants, except Liggett, The Council for Tobacco Research, Inc. and The Tobacco Institute to whom it shall not apply, (hereinafter ‘Defendants’) and to each of their current and future directors, officers, agents, servants, employees, subsidiaries, attorneys, assigns and successors.” Order #1015 at § II (JA018). The district court’s lengthy opinion included a footnote identifying B&W Tobacco as one of the Defendants. See Philip Morris USA, Inc., 449 F. Supp. 2d at 31 n.4.

Among other remedial provisions, Order #1015 required the Defendant tobacco companies to make corrective statements on five topics related to cigarette smoking and health. See Order #1015 at ¶5 (JA020). Order #1015 obligated Defendants to publish those statements:

• “in a prominent position on any publicly-accessible website of each Defendant for the duration” of the Court’s injunction, id. at ¶6 (JA020-

21);

• on onserts “affix[ed] to cigarette packaging” during six separate two- week periods over two years, id. at ¶7.a (JA021);

• “as a full-age advertisement in the first section of the Sunday edition” of each of dozens of specified newspapers, id. at ¶7.c (JA022-25); and

• “as an advertisement on one or more of the three major television networks … at least once per week” during primetime broadcasts for one year, id. at ¶7.d (JA025).

Order #1015 imposed these corrective-statements obligations on “Each Defendant.” Id. at ¶¶ 5, 7.a, 7.c, 7.d (JA020-25). Consequently, for television, “[e]ach Defendant” is required to, among other things, publish the corrective statements on national, primetime television broadcasts once per week for 52 weeks.

Order #1015 referred more specifically to “Brown & Williamson” in four places. First, it required corrective statements be placed on “any publicly- accessible website of each Defendant,” including “www.rjrt.com (including www.bw.com).” Id. at ¶6.c (JA021).1 Second, it instructed that Defendants were to publish the corrective statements on package onserts affixed “in the same manner as certain Defendants, such as Philip Morris and Brown & Williamson, have

1 The www.bw.com website referenced in Order #1015 no longer exists. The Government, the Intervenors, and the district court have therefore acknowledged that no corrective statements will need to be published at that website. See Order #51-Remand at 27 (JA077) (incorporating Dkt. No. 6081-2, filed Apr. 22, 2014).

utilized package onserts in the past.” Id. at ¶7.a (JA021). Third, it required “B&W” to publish corrective statements in certain newspapers. Id. at ¶7.c(3) (JA024). Fourth, it provided that “Defendants Philip Morris, R.J. Reynolds, Lorillard, and Brown & Williamson, shall maintain Internet Document Websites” at their own expense. Id. at ¶8 (JA026). As noted, however, the only “Brown & Williamson” entity that existed when the district court entered Order #1015 was BWH; B&W Tobacco had merged with RJRT more than two years earlier.

6. Defendants then filed an omnibus appeal from Order #1015, raising over a dozen challenges. Two are relevant to the present appeal.

First, Defendants challenged the corrective-statements remedy as (among other things) going beyond the district court’s remedial authority under § 1964(a). This Court rejected Defendants’ argument. See Remedial Decision, 566 F.3d at 1140, 1144-45. As this Court later explained in its Corrective Statements Decision, which invalidated the preamble of the corrective statements ultimately ordered by the district court:

Although we endorsed the district court’s corrective-disclosure remedy and the statements’ proposed topics, we did so on exceedingly narrow grounds. Specifically, we declined to adopt the government’s argument that the statements were necessary to correct and prevent ongoing consumer misconception about cigarettes. Instead, we held simply that the corrective-statement remedy was permissible under section 1964 because defendants, if compelled to tell the truth about cigarettes, would, at the same time, be “impaired in making false and misleading assurances.” [Remedial Decision, 566 F.3d] at 1140. In other words, “requiring Defendants to reveal the previously hidden

truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.” Id.

801 F.3d at 257.

Second, Defendants argued that “one defendant—BWTC [B&W Tobacco]—has since become the passive holding company, BWH,” such that “there is no ongoing fraudulent activity—and no likely RICO violation—to enjoin.” See Br. for Defs.-Appellants at *17, *58-59, United States v. Philip Morris USA Inc., Nos. 06-5267-5272, 06-5332, 06-5367, 07-5102, 07-5103 (Consol.), 2008 WL 2682541 (D.C. Cir. May 19, 2008). Defendants argued that, because this Court had “failed to make any findings, nor was any evidence presented, that the post-merger BWH, as reconstituted, manufactures, sells, or markets tobacco products” or had a reasonable likelihood of future RICO violations, there was no “jurisdiction to enjoin” BWH. Id. at *59. In response, this Court remanded for “further factfinding and clarification,” noting that, “[b]ecause the district court failed to make any findings about the extent of BWH’s control over tobacco operations, we cannot know the company’s current capabilities” and, therefore, “cannot determine whether a reasonable likelihood exists that BWH will commit future RICO violations.” Remedial Decision, 566 F.3d at 1135.

7. On remand, the district court undertook further proceedings on these two issues (as well as others).

a. As to the Brown & Williamson issue, the parties agreed on remand that BWH was a passive holding company that did not engage in the manufacturing, distribution, marketing, or sale of cigarettes and, therefore, that there was no likelihood that it would commit future RICO violations. The district court accordingly made clear that BWH—the only “Brown & Williamson” entity that existed—was not a defendant in this case: “ORDERED, that, by consent of the parties, Brown & Williamson Holdings is deemed not to be a defendant and is therefore not subject to Order #1015.” Order #7-Remand at 1 (JA037).

b. As to the corrective-statements issue, after extensive briefing and argument by all parties, the district court issued an order setting forth the text of each corrective statement and ordering the parties to engage in mediation to attempt to reach agreement on the implementation details for the corrective- statements remedy. See United States v. Philip Morris USA, Inc., 907 F. Supp. 2d 1 (D.D.C. 2012). Defendants immediately appealed the district court’s order, but at their request, this Court held their appeal in abeyance pending resolution of the implementation mediation. (Dkt. No. 6000, filed Jan. 25, 2013.)

Mediation lasted for more than a year. During that process, the parties reached agreement on the vast majority of the details governing the technical implementation of the corrective-statements remedy (while reserving their appellate rights). See Order #51-Remand (JA051-77). The parties were not,

however, able to reach agreement on the status of “Brown & Williamson” under Order #1015. Consequently, the Consent Order on implementation expressly preserved the parties’ respective rights on this issue, providing:

No provision of this Consent Order waives either any R.J. Reynolds Tobacco Company challenge to the requirement that it publish Corrective Statements on television in its capacity as successor to Brown & Williamson Tobacco Co. [sic] or any response Plaintiffs may present to such a challenge. The obligations regarding Corrective Statements on television will conform to the outcome of any such further litigation, such that, should R.J. Reynolds Tobacco Company prevail, there will be four sets of Corrective Statement spots on television.

Id. at ¶VI.4 (JA072).

8. The district court entered the implementation Consent Order on June 2, 2014. See id. at 24 (JA074). Eight days later, on June 11, 2014, Defendant RJRT filed the Rule 60(b) motion presently under review, in which it asked the district court to clarify that RJRT was not subject to any redundant obligation to publish the corrective statements on television on behalf of B&W Tobacco. (Dkt. No. 6103, filed June 11, 2014.) RJRT argued that relief was required under Rule 60(b)(4) because, under § 1964(a), the district court lacked remedial jurisdiction to require B&W Tobacco (or RJRT on B&W Tobacco’s behalf) to publish corrective statements on television. Alternatively, RJRT argued that relief was required under Rule 60(b)(6) because it would be unjust to require RJRT to run two sets of redundant corrective statements on television.

The district court denied RJRT’s motion in Order #55-Remand. (JA098-

102.) In a five-page opinion, the district court held that, with respect to Rule 60(b)(4), because “[t]here can be no question that [the district court] had jurisdiction when it issued its 2006 Remedial Order,” it follows that “the corrective action statements included in that Order are not void.” Id. at 5 (JA102). The district court similarly dismissed then RJRT’s arguments under Rule 60(b)(6) as untimely, waived, and failing to present “extraordinary circumstances.” See id. at 2-3 (JA099-100).

RJRT filed this timely appeal. (JA103.)

SUMMARY OF THE ARGUMENT

The district court committed reversible error when it denied RJRT’s motion for relief from the requirement that B&W Tobacco publish corrective statements on television.

RJRT is entitled to relief under Federal Rule of Civil Procedure 60(b)(4) because the district court lacked authority to impose this obligation on B&W Tobacco. The district court’s remedial jurisdiction in this case is limited by 18 U.S.C. § 1964(a). That provision authorizes only forward-looking remedies designed to prevent and restrain future RICO violations. Prior to trial—and more than two years before the district court issued its remedial injunction—B&W Tobacco ceased to exist. That development foreclosed any possibility that B&W

Tobacco would violate RICO in the future. It follows that the district court lacked jurisdiction to impose any remedial obligations against B&W Tobacco and that requirement of Order #1015 is, therefore, void.

Nor does the district court have jurisdiction under § 1964(a) to require RJRT to run two sets of identical corrective statements on television. As this Court has explained, the corrective-statements remedy is permissible only to further “exceedingly narrow grounds”: “defendants, if compelled to tell the truth about cigarettes, would, at the same time, be ‘impaired in making false and misleading assurances’” in the future. Corrective Statements Decision, 801 F.3d at 257. Requiring RJRT to make the same set of corrective statements on television twice, however, does nothing to further that purpose. In other words, there is no conceivable argument that forcing RJRT to publish two sets of identical corrective statements on television will make RJRT any more or less likely to make fraudulent statements in the future. The only conceivable purpose, rather, is either to punish RJRT or to educate the public—both rationales that this Court has squarely held are impermissible under § 1964(a).

Alternatively, RJRT is entitled to relief under Rule 60(b)(6). Requiring RJRT—on B&W Tobacco’s behalf—to sponsor a second, redundant television broadcast every week for a year makes no sense. It will not further prevent and restrain RJRT from engaging in future RICO violations. It is impermissibly

punitive. And it unfairly treats RJRT differently from other, similarly situated Defendants, each of which is required to run a single set of corrective-statement broadcasts on television. Such inequitable treatment requires relief.

STANDARD OF REVIEW

This Court reviews decisions denying requests to modify a final order for abuse of discretion, unless denial is “‘rooted in an error of law.’” Computer Prof’ls for Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996) (quoting Twelve John Does v. Dist. of Columbia, 841 F.2d 1133, 1138 (D.C. Cir,

1988)). This Court “must consider underlying legal issues de novo.” Marino v. Drug Enforcement Admin., 685 F.3d 1076, 1080 (D.C. Cir. 2012). Because “federal jurisdiction determinations are purely legal,” Loughlin v. United States, 393 F.3d 155, 162 (D.C. Cir. 2004), “[t]his court reviews jurisdictional issues de novo,” Foretich v. Am. Broad. Cos., 198 F.3d 270, 273 (D.C. Cir. 1999). “A district court necessarily abuses its discretion if it applies the incorrect legal standard, a question that is reviewed de novo.” F.T.C. v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 148 (D.C. Cir. 2015); accord, e.g., United States ex rel. Cyr v. SWL Inc., No. 97-7048, 1998 WL 104584, at *1 (D.C. Cir. Jan. 30,

1998) (per curiam) (holding, in reviewing denial of a Rule 60(b) motion, that “application of an incorrect legal standard merits remand even under the deferential abuse-of-discretion standard”).

ARGUMENT

I. RJRT Is Entitled To Relief Under Rule 60(b)(4) Because The District Court Lacked Jurisdiction To Require B&W Tobacco To Publish Corrective Statements On Television.

Rule 60(b)(4) requires relief from a judgment that is “void”—including one entered that exceeds a court’s jurisdiction. Here, 18 U.S.C. § 1964(a) limited the district court’s remedial jurisdiction to orders that “prevent and restrain” future RICO violations. Disgorgement Decision, 396 F.3d at 1192. The district court’s order requiring B&W Tobacco—a non-existent entity—to publish corrective statements on television cannot “prevent and restrain” future RICO violations and, therefore, that portion of the order exceeded the district court’s remedial jurisdiction. Accordingly, the district court erred in denying RJRT’s motion under Rule 60(b)(4).

A. A Provision Of An Order That Exceeds The District Court’s Jurisdiction Is “Void” Under Rule 60(b)(4).

Federal Rule of Civil Procedure 60(b)(4) authorizes a court to grant relief from a “final judgment, order, or proceeding” that “is void.” Fed. R. Civ. P. 60(b)(4). An order is “void” within the meaning of Rule 60(b)(4) “whenever the issuing court lacked jurisdiction,” Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1180 (D.C. Cir. 2013) (citing Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1545 (D.C. Cir. 1987)), such that “‘the rendering court was powerless to enter it,’” Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) (quoting Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987)). Federal jurisdiction “extends only so far as Congress provides by statute.” Commodity Futures Trading Comm’n v. Nahas, 738 F.2d 487, 492 (D.C. Cir. 1984) (citing Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02 (1982)). “[L]imits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1122 (D.C. Cir. 1985).

Where a court has acted outside of its authority, Rule 60(b)(4) mandates relief from that part of the court’s decree that is ultra vires. See, e.g., S.E.C. v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 2008). Rule 60(b)(4) “‘places no time limit on an attack upon a void judgment, nor can such a judgment acquire validity because of laches on the part of him who applies for relief from it.’” Bell Helicopter Textron, 734 F.3d at 1180 (quoting Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir.

1962)). “Under Rule 60(b)(4), the only question for the court is whether the judgment is void.” Id. at 1179-80 (quoting Austin, 312 F.2d at 343). “‘[T]here is no question of discretion on the part of the court when a motion is under Rule 60(b)(4); if the judgment is void, relief is mandatory.’” Id. at 1179 (quoting Combs, 825 F.2d at 441).

Judge Kollar-Kotelly’s opinion in Bolla illustrates the application of these principles. There, the S.E.C. filed a civil complaint against the Washington Investment Network (“WIN”) and Robert Radano. After a bench trial, Judge Kollar-Kotelly found WIN liable for violating the Investment Advisers Act of 1940 and Radano liable for aiding and abetting WIN’s violations. The district court thus enjoined WIN and Radano from committing future violations and imposed fines against both of them. On appeal, this Court affirmed the district court’s finding of liability but remanded for greater specificity in the remedial injunction. On remand, Radano filed a Rule 60(b)(4) motion seeking relief from the monetary penalty, arguing that the Investment Advisers Act does not authorize fines for aiding and abetting violations of the statute and, therefore, that the trial court lacked jurisdiction to impose such penalties. See 550 F. Supp. 2d at 56.

Judge Kollar-Kotelly granted Radano’s Rule 60(b)(4) motion. She first explained that Rule 60(b)(4) “places no time limit on an attack upon a void judgment.’” Id. at 58 (quoting Austin, 312 F.2d at 343). Radano, therefore, was free to raise his argument for the first time on remand. Judge Kollar-Kotelly then held that because “Section 209(e) of the Advisers Act does not authorize the SEC to seek, or grant this Court jurisdiction to impose, monetary penalties upon Defendant Radano for his aiding and abetting violations of that Act,” see id. at 63, relief under Rule 60(b)(4) was required. On that basis, Judge Kollar-Kotelly

“vacate[d] that portion of [the] … Order imposing a $15,000 civil monetary fine upon Defendant Radano,” while holding that “[t]he remainder of the Court’s … Order shall remain in effect.” Id.

Here, the district court ordered B&W Tobacco to publish corrective statements pursuant to its authority under § 1964(a). As this Court squarely held in its Disgorgement Decision, § 1964(a)—like § 209(e) of the Advisors Act in Bolla—limits the district court’s remedial jurisdiction: it “provides the District Courts jurisdiction only for forward-looking remedies that prevent and restrain violations of [RICO].” Disgorgement Decision, 396 F.3d at 1192 (emphasis added). Consequently, if Order #1015’s requirement that B&W Tobacco run corrective statements on television does not “prevent and restrain” future RICO violations, then, like the monetary penalties in Bolla, it exceeds the district court’s jurisdiction and is “void” under Rule 60(b)(4).

B. Ordering B&W Tobacco To Publish Corrective Statements On Television Will Not “Prevent And Restrain” Future RICO Violations.

The District Court’s order requiring B&W Tobacco to publish corrective statements on television cannot possibly “prevent and restrain” future RICO violations. First, it cannot prevent and restrain B&W Tobacco from committing future RICO violations because, by the time this case went to trial, B&W Tobacco had ceased to exist. It is obviously impossible to prevent and restrain a non-existent entity from committing future violations of law. Second, the district court’s order will also not prevent and restrain RJRT from engaging in future RICO violations. The sole basis upon which this Court upheld the corrective statements remedy was to lock Defendants into a particular position on smoking and health issues, thereby undermining their ability to make contrary statements in the future. Requiring RJRT to make the same statements on television twice cannot possibly advance that goal. Accordingly, the district court lacked jurisdiction to order B&W Tobacco (or RJRT on B&W Tobacco’s behalf) to publish corrective statements on television.

1. B&W Tobacco No Longer Exists And Therefore Cannot Engage in Future RICO Violations.

Order #1015 provides in relevant part: “Each Defendant shall cause at least one of the corrective statements approved pursuant to Section III(B)(¶5) of this Final Judgment and Remedial Order to appear as an advertisement on one or more of the three major television networks, i.e., CBS, ABC, or NBC.” Order #1015 at ¶7.d (JA025). The district court’s Final Opinion identifies B&W Tobacco as a Defendant. See Philip Morris USA, Inc., 449 F. Supp. 2d at 31 n.4. Order #1015, therefore, on its face, imposes corrective statements obligations on B&W Tobacco.

Here, requiring B&W Tobacco to publish the corrective statements on television cannot logically constitute a “forward-looking remed[y] … aimed at future violations.” Disgorgement Decision, 396 F.3d at 1198. From the time this

case went to trial—and indeed, to this day—B&W Tobacco has not existed. It therefore does not design, manufacture, distribute, market, or sell cigarettes. Nor does it make statements about cigarettes or related issues. Because B&W Tobacco is defunct, B&W Tobacco “cannot possibly commit future RICO violations.” Remedial Decision, 566 F.3d at 1135. It logically follows that requiring the publication of corrective statements on television by B&W Tobacco—or by RJRT on B&W Tobacco’s behalf—cannot serve to prevent and restrain B&W Tobacco from committing future RICO violations.

Thus, Order #1015’s requirement that B&W Tobacco publish corrective statements on television “‘proceeded beyond the powers granted to [this Court] by law’” under 18 U.S.C. § 1964(a), rendering that provision of the Order “void” within the meaning of Rule 60(b)(4). David v. Dist. of Columbia, 252 F.R.D. 56, 59 (D.D.C. 2008) (quoting Muwekma Tribe v. Norton, 206 F. Supp. 2d 1, 3 (D.D.C. 2002)). In such a case, “‘relief is mandatory,’” Bell Helicopter Textron, 734 F.3d at 1179 (quoting Combs, 825 F.2d at 441).

2. Requiring RJRT To Publish The Same Statements Twice Will Not Prevent And Restrain RJRT From Engaging In Future RICO Violations.

Nor can requiring RJRT to publish two identical sets of corrective statements on television—one for itself and one for the non-existent B&W Tobacco—prevent and restrain RJRT from engaging in future RICO violations.

This Court’s Remedial Decision and Corrective Statements Decision both make clear the “exceedingly narrow” basis upon which corrective statements are justified. They are not intended to punish Defendants for past misconduct by requiring them to expend money to remedy their past misconduct. See 566 F.3d at 1140; 801 F.3d at 257. Nor are the corrective statements intended to educate the public about the health effects of cigarettes. This Court, rather, has repeatedly rejected remedies based on these rationales. See Corrective Statements Decision, 801 F.3d at 256 (§ 1964(a) prohibits remedies “that seek to punish prior wrongdoing or correct the effects of past conduct”); id. at 257 (rejecting “the government’s argument that the statements were necessary to correct and prevent ongoing consumer misperception about cigarettes”).

Instead, the sole purpose of the corrective-statements remedy—and the sole reason the remedy is permissible under § 1964(a)—is to lock Defendants into a particular position on smoking and health issues which, in turn, will undermine their ability to take the opposite position in the future. See id. But there is no possible basis for concluding that making RJRT run the same television statements twice will further this remedial purpose. In other words, forcing RJRT to run the same statements on television a second time does not prevent and restrain RJRT from making false statements in the future any more effectively than making them publish such statements once does.

The structure of Order #1015, moreover, confirms as much. That order requires each Defendant to run a single set of corrective statements on television. It does not allocate the corrective-statements burden based on market share, such that larger companies must publish more statements than smaller ones, even though the district court was aware of that common method of imposing requirements on tobacco companies. See Philip Morris USA, Inc., 449 F. Supp. 2d at 841 (describing Master Settlement Agreement’s market share-based provisions). Nor does it make the Defendants jointly and severally liable for a specified number of corrective statements, such that if one Defendant is dismissed from the case, the remaining defendants must shoulder that Defendant’s burden. For example, British American Tobacco (Investments) Limited (“BATCo”), an original Defendant in this case, was dismissed from this action on remand because it did not engage in cigarette operations in the United States. See Order #16-Remand at 2 (JA046) The district court, however, did not re-assign BATCo’s corrective-statement obligations to the other Defendants. Instead, as a result of BATCo’s dismissal, there were simply a smaller number of corrective statements, reflecting the smaller number of Defendants. This, in turn, reflects the “exceedingly narrow” purpose of the corrective-statements remedy, which is to undermine Defendants’ ability to make future false statements, rather than to punish Defendants by forcing them to spend money on corrective statements or to educate the public by flooding the airwaves with the statements. And the permissible purpose of the corrective- statements remedy is simply not furthered by forcing any particular Defendant to make the same set of statements in the same forum twice.

Any requirement that RJRT televise a second set of corrective statements on behalf of B&W Tobacco exceeds the district court’s jurisdiction under 18 U.S.C. § 1964(a) and is, therefore, “void” under Rule 60(b)(4).

C. This District Court’s Reasons For Denying RJRT’s Rule 60(b)(4) Motion Are Legally Erroneous.

Because the bases upon which the district court denied RJRT’s Rule 60(b)(4) motion are legally erroneous, they constitute an abuse of discretion. The district court’s sole reason for denial was its conclusion that RJRT’s argument under 18 U.S.C. § 1964(a) “deals with the merits of the relief order, not this Court’s jurisdiction.” Order #55-Remand at 4 (JA101). That conclusion, however, is squarely contrary to binding Circuit precedent and the law of the case. See Disgorgement Decision, 396 F.3d at 1192, 1198-99; Remedial Decision, 566 F.3d at 1139-40, 1147; Corrective Statements Decision, 801 F.3d at 256-57, 261, 263. Nor did RJRT somehow “inherit” B&W Tobacco’s remedial obligations. B&W Tobacco had already ceased to exist when this case went to trial, did not exist when the district court imposed its remedy, and indeed does not exist to this day. There were, therefore, no obligations for RJRT to inherit.

1. This Court Has Squarely Held That § 1964(a) Constrains The District Court’s Remedial Jurisdiction.

The sole basis upon which the district court rejected RJRT’s Rule 60(b)(4) argument was its conclusion that RJRT’s “argument addresses deals [sic] with the merits of the relief order, not this Court’s jurisdiction.” Order #55-Remand at 4 (JA101). The district court’s conclusion is wrong. Under Rule 60(b)(4), an order is “void” “whenever the issuing court lacked jurisdiction,” Bell Helicopter Textron, 734 F.3d at 1180, such that “‘the rendering court was powerless to enter it,’” Karsner, 532 F.3d at 886. And this Court has made clear that, under § 1964(a), district courts lack “jurisdiction” to enter orders that do not “prevent and restrain” future RICO violations, rendering them “powerless” to enter such orders.

Indeed, this Court’s Disgorgement Decision could hardly be clearer on these issues:

• Section 1964(a) “provides the District Courts jurisdiction only for forward-looking remedies that prevent and restrain violations of [RICO].” Disgorgement Decision, 396 F.3d at 1192 (emphasis added).

• “Section 1964(a) conferred jurisdiction on the District Court only to enter orders to prevent and restrain violations of the statute.” Id. (emphasis added).

• “Section 1964(a) provides jurisdiction to issue a variety of orders … limited to forward-looking remedies that are aimed at future violations.” Id. at 1198 (emphasis added).

• “The statute under which the Government sued Appellants, 18 U.S.C. § 1964(a), granted only the jurisdiction which we set forth above. The District Court, so far as is relevant to actions under that section, has jurisdiction only ‘to prevent and restrain violations of RICO by issuing appropriate orders …’” Id. at 1199 (quoting 18 U.S.C. § 1964(a)) (first and second emphases added).

See also, e.g., United States v. Carson, 52 F.3d 1173, 1182 (2d Cir. 1995) (“[T]he jurisdictional powers in § 1964(a) serve the goal of foreclosing future violations, and do not afford broader redress.”); Richard v. Hoechst Celanese Chem. Grp. Inc., 355 F.3d 345, 355 (5th Cir. 2003) (recognizing that under § 1964(a)’s grant of authority “equitable remedies are available only to prevent ongoing and future conduct”).

This Court’s Remedial Decision likewise repeatedly holds that § 1964(a) imposes a constraint on the district court’s remedial jurisdiction:

• “Section 1964(a) grants district courts jurisdiction ‘to prevent and restrain’ RICO violations. Hence, before a district court may order remedies under RICO it must find the defendant exhibits a reasonable likelihood of committing future violations of the Act.” 566 F.3d at 1131 (emphasis added).

• “A district court that finds a defendant civilly liable for violating RICO has jurisdiction ‘to prevent and restrain violations of RICO by issuing appropriate orders.’ Congress limited relief under section 1964(a) to forward-looking remedies aimed at preventing and restraining future RICO violations.” 566 F.3d at 1139 (quoting 18 U.S.C. § 1964(a)) (emphasis added).

• “Section 1964(a) authorizes only remedies that prevent and restrain future RICO violations, not all future effects of past RICO violations.” Remedial Decision, 566 F.3d at 1140 (citing Disgorgement Decision, 396 F.3d at 1198) (emphasis added).

• “Under section 1964(a), the district court may craft only forward- looking remedies aimed at preventing and restraining future RICO violations. Remedies ‘focused on remedying the effects of past conduct’ or ‘awarded without respect to whether the defendant will act unlawfully in the future’ are beyond the court’s statutory jurisdiction.” Id. at 1147 (emphasis added).

Finally, this Court’s most recent Corrective Statements Decision is of a piece, similarly making clear that § 1964(a) limits the district courts’ “jurisdiction” and “power” “to issue remedies for one purpose—to ‘prevent and restrain’ future RICO violations—and our decisions read this mandate narrowly.” 801 F.3d at 257. As this Court explained, “[f]ederal courts ‘possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.’” Id. at 256 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It thus reiterated that “RICO’s civil-remedy provision, 18 U.S.C. § 1964(a), … grants district courts jurisdiction ‘to prevent and restrain violations of the Act by issuing appropriate orders,’” emphasizing that “[w]e have carefully defined the power authorized by section 1964.” Id. (emphasis added).

This Court’s repeated rulings clearly establish that remedies cannot be sustained if they “‘reach beyond the bounds of section 1964(a), which authorizes the district court to order injunctions only to prevent and restrain fraudulent statements about smoking and health and addiction.’” Id. at 263 (quoting Remedial Decision, 566 F.3d at 1149) (emphasis added). In short, binding Circuit precedent (as well as law of this case) makes clear that under § 1964(a), a court “lack[s]

29

jurisdiction,” Bell Helicopter Textron, 734 F.3d at 1180, and is “powerless to enter,” Karsner, 532 F.3d at 886, a remedial order that does not “prevent and restrain” future RICO violations. The district court’s conclusion that RJRT was not challenging its jurisdiction and power to do so, therefore, was plainly wrong.2

2. RJRT Did Not “Inherit” B&W Tobacco’s Obligations Under Order #1015.

Nor did RJRT somehow inherit B&W Tobacco’s obligations under Order #1015 “in its capacity as successor to B&W Tobacco’s interests.” Order #55- Remand at 1 (JA098). Indeed, such a conclusion would defy the laws of time. RJRT merged with B&W Tobacco before this case even went to trial. At the time of the merger, therefore, B&W Tobacco had no obligations under Order #1015 that RJRT could inherit. To be sure, RJRT may well have inherited certain B&W Tobacco obligations that B&W Tobacco held at that time. But RJRT obviously did 2 The district court cited several cases in support of its holding. See Order #55- Remand at 4-5 (JA101-02) (citing Nw. Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 365 (1994); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998); Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 253-54 (2010); Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006)). None of these cases, however, even purports to address whether § 1964(a) limits the district court’s jurisdiction or power to enter orders that do not prevent and restrain future RICO violations. Instead, they stand for the unremarkable proposition that there is a difference between jurisdictional and merits issues. Here, RJRT does not challenge the district court’s merits holding that Defendants violated RICO. It does, however, challenge the district court’s jurisdictional authority to impose a particular remedy—namely, a requirement that B&W Tobacco publish corrective statements on television. None of the cases the district court cited even arguably addresses this issue.

USCA Case #15-5210 Document #1598898 Filed: 02/16/2016 Page 40 of 55 not inherit obligations that B&W Tobacco had not yet incurred and, by virtue of its ceasing to exist, would never be able to incur.

A comparison to RJRT’s recent merger with Defendant Lorillard Tobacco Company (“LTC”) is instructive. At the time of that merger, LTC had already been adjudicated to have violated civil RICO and was subject to certain remedial obligations under Order #1015. On June 12, 2015, LTC merged with and into RJRT. By virtue of that merger, RJRT inherited LTC’s remedial obligations because, unlike with the B&W Tobacco merger, those obligations in fact existed and therefore were LTC liabilities at the time of the merger. Thus, in seeking and obtaining the district court’s approval of certain brand transfers in conjunction with that merger, RJRT informed the district court that:

RJRT will remain subject to all requirements of Order #1015 and the Court’s subsequent Orders in this matter. In addition, RJRT will assume LTC’s obligations regarding public disclosure of documents produced in litigation and administrative actions, production of disaggregated marketing data, and publication of the corrective statements on television, in newspapers, on onserts (other than for transferred brands), and on applicable websites (subject, of course, to the outcome of the pending appeals concerning the corrective- statement text, United States v. Philip Morris USA, Inc., 907 F. Supp. 2d 1 (D.D.C. 2012), appeal docketed, Nos. 13-5028 & 14-5161 (D.C. Cir. argued Feb. 23, 2015)); as well as any order concerning the point- of-sale corrective-statement displays currently pending before the Court (again subject to the outcome of any appeals). See, e.g., Dkt. Nos. 6096-6101, 6104-6108 (most recent briefing). Likewise, those LTC subsidiaries subject to the mandates of Order #1015 will become RJRT subsidiaries and will remain subject to Order #1015.

Notice of Transaction Involving Defendants R.J. Reynolds Tobacco Company and Lorillard Tobacco Company at 8 (emphasis added) (JA085).

Here, in contrast, the situation is markedly different. At the time of the merger with B&W Tobacco, neither RJRT nor B&W Tobacco had been found liable under civil RICO or assessed obligations under Order #1015, for the simple reason that this case had not yet gone to trial. Nor could the district court subsequently impose such obligations or liabilities on B&W Tobacco because, again, by the time this case went to trial, B&W Tobacco had ceased to exist. To be sure, the district court could—and did—impose liability on RJRT for RJRT’s conduct. It likewise could—and did—impose remedial obligations on RJRT with respect to B&W Tobacco-legacy brands that RJRT manufactures, markets, and distributes. Hence, RJRT is required to place corrective-statement onserts on packages of the cigarette brands it acquired from B&W Tobacco, just as it is required to place corrective-statement onserts on packages of brands that it developed itself. But RJRT cannot possibly inherit forward-looking obligations that no court ever did or could impose on B&W Tobacco. See, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 464 F. Supp. 2d 495, 504 (E.D. Va.

2006) (quoting Am. Steel Foundries v. Tri–City Cent. Trades, 257 U.S. 184, 201 (1921)) (“‘[R]elief by injunction operates in futuro and the right to it must be determined as of the time of the hearing.’”). Thus, RJRT simply did not and could not have inherited B&W Tobacco’s ostensible obligation to run corrective statements on television—an obligation that never was imposed nor could have been imposed on B&W Tobacco.

II. Alternatively, RJRT Is Entitled To Relief Under Rule 60(b)(6) Because Requiring RJRT To Run A Second, Redundant Set Of Corrective Statements On Television Is Unjust.

In the alternative, RJRT sought relief under Federal Rule of Civil Procedure 60(b)(6). That provision “‘grants federal courts broad authority to relieve a party from a final judgment “upon such terms as are just.”’” Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988)). Rule 60(b)(6) thus “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949). Here, it would be unjust to require RJRT to run two sets of redundant corrective statements on television.

A. There Is No Logical Basis For Requiring RJRT To Run Two Sets of Corrective Statements On Television.

For many of the reasons outlined above, there is simply no basis in logic or law for requiring RJRT to run the same set of corrective statements on television twice. Indeed, for three reasons, requiring such a remedy would be arbitrary and impermissibly punitive.

First, as explained at length above, see supra at 22-25, requiring RJRT to run two sets of corrective statements on television would not “prevent and restrain” RJRT from engaging in future RICO violations. RJRT is no more likely to take a position contrary to the district court’s findings of fact on smoking and health issues in the future if it is forced to disseminate those findings through one versus two sets of identical corrective statements on television. RJRT will be equally locked into its position either way. A second, redundant set of statements, therefore, will not further “impair” RJRT from “making false and misleading assurances” in the future. Corrective Statements Decision, 801 F.3d at 257.

Second, requiring RJRT to televise two sets of corrective statements would, therefore, either be punitive or a back-door attempt at a public education campaign. Both are impermissible. As this Court recently explained in its Corrective Statements Decision, § 1964(a) prohibits remedies “that seek to punish prior wrongdoing or correct the effects of past conduct.” Id. at 256. “[I]f general deterrence were a permissible objective, ‘the phrase “prevent and restrain” would read “prevent, restrain, and discourage,” and would allow any remedy that inflicts pain.’” Id. at 257. This Court thus “rejected general deterrence remedies aimed wide of the statutorily-ordained mark and emphasized that a remedy may not be justified simply on the ground that whatever hurts a civil RICO violator necessarily serves to prevent and restrain future RICO violations.” Id. (citations and internal quotation marks omitted). Likewise, the corrective statements may not be used to educate the public; to the contrary, this Court rejected “the government’s argument that the statements were necessary to correct and prevent ongoing consumer misperception about cigarettes.” Id. Here, however, since requiring RJRT to televise two sets of corrective statements will not further prevent and restrain future RICO violations, the only conceivable functions doing so could serve are these impermissible ones.

Third, the district court’s remedy would treat RJRT differently from its similarly situated co-Defendants. Order #1015 was structured to require each Defendant—Altria Group Inc., BATCo, Philip Morris USA Inc., RJRT, and LTC—to run one set of corrective statements on television. This, indeed, is the entire structure of the Order. Thus, as noted above, when BATCo was dismissed, its remedial obligations were not shifted onto the other Defendants as if they were jointly and severally liable. See supra at 24-25. This makes sense, insofar as each separate entity was adjudicated liable under RICO. But there is no basis—except for the impermissible ones discussed above—for imposing a double-obligation on a single Defendant.

Because it would be “unjust” to impose a double obligation on RJRT and RJRT alone, RJRT is, alternatively, entitled to relief under Rule 60(b)(6).

B. The District Court Abused Its Discretion In Denying RJRT’s Rule 60(b)(6) Motion.

The district court offered three conclusory bases for denying RJRT’s Rule 60(b)(6) motion. Each one was legally erroneous and, therefore, amounts to an abuse of discretion. “A district court necessarily abuses its discretion if it applies the incorrect legal standard.” Boehringer Ingelheim Pharm., Inc., 778 F.3d at 148; see also SWL Inc., 1998 WL 104584, at *1 (holding that “application of an incorrect legal standard merits remand even under the deferential abuse-of- discretion standard”).

1. First, the district court held that RJRT’s motion was not timely. See Order #55-Remand at 2 (JA099). That is plainly wrong. RJRT’s motion was timely and, regardless, the district court identified no legally cognizable prejudice that would result from resolving the motion on its merits.

Rule 60(c)(1) requires that a Rule 60(b)(6) motion “be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). As the procedural history shows, RJRT raised this issue at the earliest possible opportunity:

. B&W Tobacco notified the district court that, “effective July 30, 2004, Defendant Brown & Williamson Tobacco Corporation changed its corporate name to Brown & Williamson Holdings, Inc.” Notice of Name Change of Def. B&W Tobacco (JA001).

. In their post-trial brief, Defendants urged that “Brown & Williamson” should not be subject to judgment because it “poses no risk of future RICO violations.” See Post-Trial Br. of Joint Defs. at 144 (JA016).

. The district court rejected Defendants’ position and, in Order #1015, imposed certain remedial obligations, including the obligation to publish the corrective statements on television, upon “All Defendants” or “Each Defendant.” See Order #1015 at ¶7.d (JA025). Although Order #1015 generally addressed “Brown & Williamson,” at that time, the only “Brown & Williamson” entity in existence was BWH.

. When Defendants appealed the district court’s final opinion and remedial order, the status of B&W Tobacco—now operating as BWH—was presented to this Court. See Br. for Defs.-Appellants, 2008 WL 2682541 at *17, *58-59. Defendants’ brief explained that “one defendant—BWTC [B&W Tobacco]—has since become the passive holding company, BWH,” such that “there is no ongoing fraudulent activity—and no likely RICO violation—to enjoin.” Id. at

*17. Defendants argued that, because the district court “failed to make any findings, nor was any evidence presented, that the post-merger BWH, as reconstituted, manufactures, sells, or markets tobacco products” or had a reasonable likelihood of future RICO violations, there was no “jurisdiction to enjoin” BWH. Id. at *59.

. This Court acknowledged that B&W Tobacco “merged all domestic tobacco operations with [RJRT] and was reconstituted into Brown & Williamson Holdings.” Remedial Decision, 566 F.3d at 1135. It remanded with instructions for the district court to conduct “further fact finding and clarification” on “the extent of BWH’s control over tobacco operations.” Id.

. On remand, the district court “ORDERED, that, by consent of the parties, Brown and Williamson Holdings is deemed not to be a defendant and is therefore not subject to Order #1015.” Order #7- Remand at 1 (JA037).

. During mediation on implementation of the corrective statements, the parties were unable to agree on how to handle the “Brown & Williamson” issue. Therefore, the Consent Order on implementation expressly preserved RJRT’s right to “challenge to the requirement that it publish Corrective Statements on television in its capacity as successor to Brown & Williamson Tobacco Co. [sic]” Order #51- Remand at ¶VI.4 (JA072).

. RJRT filed the motion currently at issue review just eight days after the district court entered its implementation order. (See Dkt. No. 6103, filed June 11, 2014.)

As the foregoing chronology demonstrates, RJRT’s Rule 60(b)(6) motion plainly was timely.

But regardless, as this Court held in Salazar, a finding of prejudice to the non-moving party is a necessary predicate before a Rule 60(b)(6) motion can be deemed untimely. See 633 F.3d at 1119. In Salazar, this Court explained: “Rule 60(b)’s concern with finality, embodied … in the ‘reasonable time’ requirement, does not carry the same significance in long-running equitable relief as it would in an action where the court’s role had ended and the litigants relied on the repose inherent in the end of litigation.” Id. at 1116. For that reason, “[i]n a complex and long-running … case such as this, [] it would be an abuse of discretion to rule that a Rule 60(b)(6) motion is not filed within a reasonable time without finding that the movant’s delay has prejudiced the non-moving party.” Id. at 1119. It is, therefore, established law in this Circuit that a Rule 60(b)(6) motion should not be rejected as untimely absent a showing of prejudice on the part of the opposing party. And here, the district court made absolutely no finding that any party would suffer prejudice.3

3 Indeed, the Government did not even claim prejudice in the court below. And while the Intervenors did, it was not the kind of prejudice cognizable under Rule 60(b)(6). That is, the Intervenors claimed prejudice because they would be denied the remedy at issue—namely, a second, redundant set of televised corrective statements. The Intervenors, however, obviously suffer no legally cognizable prejudice through the denial of a remedy that is legally impermissible. In any event, the relevant prejudice is not the denial of a remedy to which a party is not entitled, but rather, a party’s inability to respond to a motion adequately due to the lapse of time. See Salazar, 633 F.3d at 1119 (assessing prejudice “caused by the timing of” of Rule 60(b)(6) motion); see also, e.g., Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 798 & n.7 (7th Cir. 1980) (dismissing as “without merit” claims of prejudice that were not “the result of [movant’s] delay in filing [a Rule 60(b)] motion, but rather the result of the fact that the motion was granted at all, whenever filed, and the fact that [opponents] did not ultimately prevail on the merits”); 11 Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2866 (3d ed.) (Rule 60(b) motion can be deemed untimely if “the party opposing the motion has been prejudiced by the delay in seeking relief.”). The Intervenors did not argue that they were subject to the relevant form of prejudice.

Accordingly, the district court erred in holding that RJRT’s Rule 60(b)(6) motion was not timely.

2. Second, the district court held that RJRT waived its right to challenge the requirement that B&W Tobacco publish corrective statements. See Order #55- Remand at 3 (JA100). That too was clearly erroneous. Under the waiver rule, “‘a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, governs future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.’” Corrective Statements Decision, 801 F.3d at 257 (quoting United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009)). Here, however, as explained immediately above, Defendants raised this issue at every possible opportunity—including during trial (see JA001); in post-trial briefing (see JA015-16); in the merits appeal, see Remedial Decision, 566 F.3d at 1135; Br. for Defs.- Appellants at *17, *58-59, 2008 WL 2682541; on remand therefrom, see Order #7- Remand at 1 (JA037); during mediation, see Order #51-Remand at ¶VI.4 (JA072); and in the motion currently under review (see Dkt. No. 6103, filed June 11, 2014). RJRT, therefore, did not remotely waive this issue.

3. Third, the district court held that RJRT failed to present “extraordinary circumstances” justifying the relief it seeks. See Order #55-Remand at 2 (JA099). But that too is wrong. There is no “extraordinary circumstances” requirement where, as here, RJRT could not have raised this issue at an earlier time. And in any event, this case plainly presents “extraordinary circumstances” sufficient to justify relief under Rule 60(b)(6).

The “extraordinary circumstances” standard is not applicable here. The “extraordinary circumstances” test applies “to allow relief in deserving cases without generally abrogating the time restrictions when relief is sought more than a year after judgment is entered.” 11 Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2864 (3d ed.). But if the relief requested could not have been raised under another provision of Rule 60(b) at an earlier time and “the movant clearly demonstrates some ‘other reason’ justifying relief outside of the earlier clauses in the rule, then the ‘extraordinary circumstances’ test is not invoked.” Id.

Here, RJRT could not have sought relief earlier under another prong of Rule 60(b). Any arguable mistake—Rule 60(b)(1)—in mentioning “Brown & Williamson” as part of the corrective statements remedy was remedied by BWH’s dismissal in Order #7-Remand. Neither newly discovered evidence nor fraud— Rule 60(b)(2) and (b)(3), respectively—was present. This argument applies only if this Court holds that Rule 60(b)(4) does not apply here. And Rule 60(b)(5) is inapplicable since, as explained, BWH had already been dismissed and RJRT had no basis to know the Government and Intervenors’ view of the “Brown & Williamson” issue until mediation, which did not even begin until two years after the district court’s dismissal of BWH. See Philip Morris USA, Inc., 907 F. Supp. 2d at 27. In short, because there was no way RJRT could have obtained relief under any of subsections (1)-(5) of Rule 60(b), the “extraordinary circumstances” test is inapplicable to RJRT’s motion under subsection (b)(6).

But even if the “extraordinary circumstances” test applied, this case would certainly qualify. See, e.g., Lightfoot v. Dist. of Columbia, 555 F. Supp. 2d 61, 70 (D.D.C. 2008). The district court asserted that “[t]he circumstances presented in [RJRT’s] Motion are not extraordinary.” Order #55-Remand at 3 (JA100). But that conclusory statement cannot be squared with the record. At the very least, the status of the “Brown & Williamson” issue was unclear until the conclusion of mediation, since B&W Tobacco no longer existed and the only “Brown & Williamson” entity that did exist—BWH—had been dismissed from the case. The confusion surrounding this issue in this complex and long-running case is itself sufficiently “extraordinary” under Rule 60(b)(6). The relief being challenged, moreover, is likewise “extraordinary,” since in awarding it, the district court plainly exceeded its authority under § 1964(a) in contravention of this Court’s repeated holdings regarding the limits of the district court’s remedial jurisdiction. In short, this “case is ‘not the ordinary one.’”Lightfoot, 555 F. Supp. 2d at 70 (quoting Computer Prof’ls for Social Responsibility, 72 F.3d at 903).

Simply put, there is no conceivable argument by which requiring RJRT to run two sets of corrective statements on television could “prevent and restrain” it from engaging in future RICO violations any more than requiring it to run one set of statements would. Nor is there any argument that, in the tortuous procedural history of this case, RJRT demonstrated “a lack of diligence [that would] preclude a finding of extraordinary circumstances.” Salazar, 633 F.3d at 1121-22. Accordingly, the “extraordinary circumstances” test, even if it applies, is satisfied here.

CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s order denying R.J. Reynolds Tobacco Company’s Motion for Relief from Provisions of Order #1015 That Require Brown & Williamson Tobacco Corporation to Publish

Corrective Statements on Television and direct the district court to grant the relief sought.

Dated: February 16, 2016 Respectfully submitted,

Noel J. Francisco

Peter J. Biersteker

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Jeffrey A. Mandell

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Madison, WI 53703

Telephone: (608) 256-0226

Facsimile: (608) 259-2600

Geoffrey K. Beach

WOMBLE CARLYLE SANDIDGE & RICE, LLP

One West Fourth Street

Winston-Salem, NC 27101

Telephone: (336) 721-3600

Facsimile: (336) 733-8389

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation)

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation established by Federal Rule of Appellate Procedure 32(a)(7)(B)(i) because it contains 10,000 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: February 16, 2016

/s/ Jeffrey A. Mandell

Jeffrey A. Mandell

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as success to Brown & Williamson Tobacco Corporation)

CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2016, I electronically filed the foregoing Appellant’s Opening 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/ Jeffrey A. Mandell

Jeffrey A. Mandell

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation)

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