USA v. MO APPEAL: BRIEF FOR THE UNITED STATES OF AMERICA, Mar 17, 2016

March 17, 2016 4:39 pm by Gene Borio

The PDF is Here

EXCERPT:

SUMMARY OF ARGUMENT

I. In reviewing RJR’s request for relief from the 2006 remedial order under Federal Rule of Civil Procedure 60(b)(4), the “only question” for the Court “is whether the judgment is void.” Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1180 (D.C. Cir. 2013). A judgment is void in the absence of subject-matter jurisdiction or personal jurisdiction, or if a party was deprived of notice or the opportunity to be heard. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010); Bell Helicopter, 734 F.3d at 1180, 1181. RJR does not claim that any of these circumstances apply here, and thus has not demonstrated that the 2006 remedial order was void.

Whether the order exceeded the district court’s authority to “prevent and restrain” (18 U.S.C. § 1964(a)) future RICO violations does not implicate the district court’s subject-matter jurisdiction, and RJR errs in drawing a different conclusion from the language in the civil remedies provision stating that district courts “shall have jurisdiction” to issue appropriate orders “to prevent and restrain” RICO violations. 18 U.S.C. § 1964(a). The Supreme Court has recognized that a statute’s use of the term “jurisdiction” to specify the district courts’ remedial powers does not bear on the courts’ subject-matter jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Indeed, in Steel Company, the Supreme Court hypothesized a statute very much like RICO’s civil remedies provision and described as “fanciful” the idea that the statute restricts the district courts’ subject-matter jurisdiction. Id. at 91-92.

II. The district court acted well within its discretion in denying RJR’s motion for relief under Federal Rule of Civil Procedure 60(b)(6). A movant seeking relief under that rule must do so within “a reasonable time,” and must show “extraordinary circumstances” justifying relief from judgment. Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011). A movant that “had an opportunity for appeal and forwent that appeal” cannot make the “compelling showing of inequity or hardship” necessary to establish extraordinary circumstances, unless there were “circumstances that essentially made the decision not to appeal an involuntary one.” Id. at 1120, 1121 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).

The district court entered the remedial order from which RJR seeks relief on August 17, 2006. JA34. Since that date, RJR has been party to multiple appeals before this Court. In none of those appeals did RJR seek this Court’s review of its obligation under the remedial order to televise corrective statements in connection with its acquisition of B&W’s tobacco operations. Because RJR could have raised the issue, but did not, in its prior appeals, RJR cannot establish extraordinary circumstances.

RJR is plainly mistaken in claiming that it raised the issue “at the earliest possible opportunity” (Br. 35) based on the assertion that it did not understand the requirements of the 2006 remedial order until 2014. RJR cites no authority for the proposition that a party is entitled to relief under Rule 60(b)(6) eight years after an order issues on the ground that it took that long for the party to grasp its scope. In any event, even on its own theory, RJR could have raised the issue in its 2014 appeal from the remedial order but failed to do so.

Although RJR argues that it would be “arbitrary and impermissibly punitive” (Br. 32) to require it to publish corrective statements in connection with its acquisition of B&W’s tobacco operations, it told quite a different story in 2015 when it notified the district court of its merger with Lorillard. At that time, RJR declared that the merger “will not weaken the remedial impact” of the 2006 remedial order because, among other reasons, RJR “will assume [Lorillard’s] obligations,” including “publication of the corrective statements on television.” JA85. In light of RJR’s own representations, the district court most certainly did not abuse its discretion in declining to grant RJR relief under Rule 60(b)(6).

END EXCERPT

FULL TEXT:

USCA Case #15-5210 Document #1604384 Filed: 03/17/2016 Page 1 of 45

[ORAL ARGUMENT NOT YET SCHEDULED]

No. 15-5210

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-Appellees,

and

R.J. REYNOLDS TOBACCO CO.,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES OF AMERICA

BENJAMIN C. MIZER

Principal Deputy Assistant

Attorney General

CHANNING D. PHILLIPS

United States Attorney

MARK B. STERN

ALISA B. KLEIN

LEWIS S. YELIN

Attorneys, Appellate Staff

Civil Division, Room 7239

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530

(202) 514-3425

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as follows:

A. Parties and Amici

1. Parties

a. The United States of America was the plaintiff in the district court proceedings and is an appellee in this Court.

b. R.J. Reynolds Tobacco Co. was a defendant in the district court and is the appellant in this Court.

The following entities were defendants in the district court and are listed as appellees in this Court: Altria Group, Inc. (formerly Philip Morris Cos., Inc.); American Tobacco Co.; British American Tobacco, P.L.C.; British American Tobacco (Investments) Ltd.; Brown & Williamson Tobacco Corp.; The Council for Tobacco Research–U.S.A., Inc.; Liggett Group, Inc.; Lorillard Tobacco Co.; Philip Morris USA Inc. (formerly Philip Morris Inc.); and The Tobacco Institute, Inc.

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c. The following entities were intervenors in the district court and have entered appearances as appellees in this Court: American Cancer Society; American Heart Association; American Lung Association; Americans for Nonsmokers’ Rights; National African American Tobacco Prevention Network; and Tobacco-Free Kids Action Fund.

The following entities were intervenors in the district court and are listed as appellees in this Court: Elan Corp., PLC; GlaxoSmithKline Consumer Healthcare, L.P.; Impax Laboratories, Inc.; Novartis Consumer Health, Inc.; Pfizer, Inc.; Pharmacia Corp.; and Smithkline Beecham Corp.

The following entities intervened in the district court as post-judgment parties regarding remedies: Commonwealth-Altadis, Inc.; Commonwealth Brands, Inc.; and ITG Brands, LLC.

d. Richard A. Levie was the Special Master in the district court and is listed as an appellee in this appeal.

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2. Amici

The following entities were amici in the district court: A&E Television Networks, LLC; Asian-Pacific Islander American Health Forum; 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; Black Network in Children’s Emotional Health; Citizen’s Commission to Protect the Truth; City and County of San Francisco; CW Television Network; Essential Action; Fox Broadcasting Co.; Interactive One, LLC; Little Rock Sun; National Association for the Advancement of Colored People; National Association of Black Owned Broadcasters; National Newspaper Publishers Ass’n; Radio One, Inc.; Regents of the University of California; San Francisco African American Tobacco Free Project; Tobacco Control Legal Consortium; Turner Broadcasting System, Inc.; TV One, LLC; Univision Communications Inc.; and Viacom Inc.

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No amicus has entered an appearance in this appeal to date.

B. Rulings Under Review

The ruling under review is Order No. 55-Remand (Docket Entry
6147) of the United States District Court for the District of Columbia, Gladys Kessler, J., denying R.J. Reynolds Tobacco Co.’s motion for relief under Federal Rule of Civil Procedure 60(b), entered on May 28, 2015, and reproduced in the Joint Appendix at 98-102.

C. Related Cases

This case was previously before this Court in the following appeals: United States v. Philip Morris Inc., No. 01-5244 (July 23, 2001); United States v. Philip Morris Inc., No. 02-5210 (July 3, 2002); United States v. British American Tobacco (Investments) Ltd., Nos. 04-5207 (June 3, 2004) and 04-5208 (June 3,
2004); United States v. Philip Morris USA Inc., No. 04-5252 (July 15, 2004); United States v. British American Tobacco Australia Services Ltd., Nos. 04-5358 (Oct. 5, 2004) and 05-5129 (Mar. 30 , 2005); United States v. Philip Morris USA Inc., Nos. 06-5267 (Sept. 11, 2006), 06-5268 (Sept. 11, 2006), 06-5269 (Sept. 11,

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2006), 06-5270 (Sept. 11, 2006), 06-5271 (Sept. 11, 2006), 06-5272 (Sept. 11,
2006), 06-5332 (Oct. 23, 2006), 06-5367 (Nov. 15, 2006), 07-5102 (Apr. 5,
2007), and 07-5103 (Apr. 6, 2007); United States v. Philip Morris USA Inc., No. 11-5145 (June 14, 2011); United States v. Philip Morris USA Inc., No. 11-5146 (June 15, 2011); and United States v. Philip Morris USA Inc., Nos. 13-5028 (June 30, 2013) and 14-5161 (June 30, 2014).

s/ Lewis S. Yelin

LEWIS S. YELIN

Counsel for Appellee United States of America

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TABLE OF CONTENTS

Page:

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

TABLE OF AUTHORITIES…………………………………………………………………………ii

GLOSSARY ………………………………………………………………………………………………..v

STATEMENT OF JURISDICTION ……………………………………………………………..2

STATEMENT OF THE ISSUES …………………………………………………………………..2

PERTINENT STATUTE………………………………………………………………………………3

STATEMENT OF THE CASE……………………………………………………………………..4

SUMMARY OF ARGUMENT…………………………………………………………………..12

STANDARD OF REVIEW ………………………………………………………………………..16

ARGUMENT…………………………………………………………………………………………….16

I. Because the 2006 Remedial Order Was Not Void, the District Court Properly Denied RJR’s Request for Relief Under Rule 60(b)(4) …….16

II. The District Court Properly Denied RJR’s Request for Relief Under Rule 60(b)(6) Because RJR Could Have Raised the Issue, But Failed to, in Its Prior Appeals ………………………………………………………………….23

CONCLUSION …………………………………………………………………………………………31

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES*

Cases: Page:

Ackermann v. United States, 340 U.S. 193 (1950) …………………………………………………………….. 14, 24

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175 (D.C. Cir. 2013) …………………………………. 12, 16, 17, 22

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 892 F. Supp. 2d 219 (D.D.C. 2012) ………………………………………………9

Birmingham Fire Fighters Ass’n 117 v. Jefferson City, 280 F.3d 1289 (11th Cir. 2002) …………………………………………………..27

Bowyer v. District of Columbia, 779 F. Supp. 2d 159 (D.D.C. 2011) …………………………………………….10

Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987) …………………………………………………….17

Gonzalez v. Crosby, 545 U.S. 524 (2005) ……………………………………………………………………24

Marino v. Drug Enf’t Admin., 685 F.3d 1076 (D.C. Cir. 2012) …………………………………………………..16

Morrison v. National Austl. Bank Ltd., 561 U.S. 247 (2010) …………………………………………………………….. 11, 20

*Salazar v. District of Columbia, 633 F.3d 1110 (D.C. Cir. 2011) ……………………………. 14, 16, 23, 24, 25

* Authorities on which we chiefly rely are marked with an asterisk.
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Securities & Exchange Comm’n v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 2008) ………………………………………………21

*Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) …………………………………………. 11, 13, 19, 20, 21, 22

Twelve John Does v. District of Columbia, 841 F.2d 1133 (1988)………………………………………………………………….23

United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011) …………………………………………………….22

United States v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009) ……………………………………………….5, 25

United States v. Philip Morris USA Inc., 686 F.3d 832 (D.C. Cir. 2012) …………………………………………………….25

United States v. Philip Morris USA Inc., 686 F.3d 839 (D.C. Cir. 2012) ……………………………………………… 25, 27

*United States v. Philip Morris USA Inc., 801 F.3d 250 (D.C. Cir. 2015) ………………………… 6, 7, 8, 12, 25, 26, 27

United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) ………………………………………………….4

*United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) ………………………………………………….. 12, 17, 22, 23

Statutes and Treaties:

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968………………………………………………………………..2

18 U.S.C. § 1962…………………………………………………………………. 19, 20

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*18 U.S.C. § 1964(a)………………………………………. 3, 4, 7, 13, 19, 20, 21

15 U.S.C. § 80b-9(e)(1) ……………………………………………………………………..21

28 U.S.C. § 1292(a)(1)…………………………………………………………………………2

28 U.S.C. § 1331 ……………………………………………………………………………2, 18

28 U.S.C. § 1345 ……………………………………………………………………………2, 18

28 U.S.C. § 2201 ……………………………………………………………………………….18

42 U.S.C. § 11046(c)………………………………………………………………………….19

Rules:

Fed. R. App. P. 4(a)(1)(B)(ii) ………………………………………………………………2

Fed. R. Civ. P. 60(b) ………………………………………………………………. 2, 16, 31

Fed. R. Civ. P. 60(b)(1)-(5)………………………………………………………………..23

Fed. R. Civ. P. 60(b)(4)……………………….. 3, 9, 10, 12, 16, 17, 19, 21, 22, 23

Fed. R. Civ. P. 60(b)(6)…………………………… 3, 10, 11, 13, 15, 23, 27, 28, 30

Other Authorities:

11 Charles Alan Wright et al., Federal Practice and Procedure (3d ed. 2008)………………………………………………………………………. 17, 24

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GLOSSARY

B&W Brown & Williamson Tobacco Company

RICO Racketeer Influenced and Corrupt Organizations Act

RJR R.J. Reynolds Tobacco Company

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-5210

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILIP MORRIS USA INC., et al.,

Defendants-Appellees,

and

R.J. REYNOLDS TOBACCO CO.,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES OF AMERICA

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STATEMENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345. On May 28, 2015, the district court denied the motion of R.J. Reynolds Tobacco Company (RJR) for partial relief from an injunction under Federal Rule of Civil Procedure 60(b). JA98-103. RJR filed a notice of appeal on July 23, 2015, within the sixty-day period prescribed by Federal Rule of Appellate Procedure 4(a)(1)(B)(ii). JA104. This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).

STATEMENT OF THE ISSUES

After RJR was found liable, along with other tobacco companies, of violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO), the district court entered a remedial order in 2006 imposing obligations on RJR, including obligations stemming from RJR’s acquisition of the tobacco operations of another defendant, Brown & Williamson Tobacco Company (B&W). In 2014, RJR filed a motion asking the district court to relieve it from some of its obligations related to its acquisition of B&W’s tobacco operations. The questions presented are:

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1. Whether the district court correctly denied RJR’s motion for relief under Federal Rule of Civil Procedure 60(b)(4) because RJR failed to establish that the district court lacked subject-matter jurisdiction, and therefore that the district court’s remedial order was “void”;

2. Whether the district court abused its discretion by denying RJR’s motion for relief under Federal Rule of Civil Procedure 60(b)(6) because RJR could have, but did not, raise the issue of its obligations with respect to its acquisition of B&W’s tobacco operations in its prior appeals in this case.

PERTINENT STATUTE

18 U.S.C. § 1964(a) 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.

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STATEMENT OF THE CASE

1. In 1999, the United States initiated this RICO action against various tobacco companies, including RJR and B&W, whose tobacco operations RJR acquired in 2004. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 26, 34 n.4 (D.D.C. 2006). After years of pre-trial proceedings, the district court held a nine-month bench trial in which it found “overwhelming evidence” that the tobacco-company defendants had for decades engaged in a racketeering enterprise in violation of one provision of RICO and had conspired to do so in violation of another. Id. at 27; see id. at 851-908.

In fashioning a remedy designed to “prevent and restrain” future violations of RICO, 18 U.S.C. § 1964(a), the district court entered an injunction requiring the defendants to make “corrective statements” concerning subjects such as the adverse health effects of smoking and the addictiveness of smoking and nicotine—topics about which the defendants had previously misled the American public through mail and wire fraud, JA20; see, e.g., Philip Morris, 449 F. Supp. 2d at 852-67. The court ordered

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the corrective statements published in various media such as company websites, cigarette package “onserts,” newspapers, and television. JA20-25. In 2009, this Court affirmed the district court’s liability determination and upheld the use of corrective statements as a proper exercise of the district court’s remedial authority under RICO. United States v. Philip Morris USA Inc., 566 F.3d 1095, 1138-40, 1150 (2009).1

On remand from this Court’s 2009 decision, the district court in 2014 entered a consent order implementing the corrective statements remedy by specifying the contents of the statements and providing instructions for their publication. JA51-77. The order recognized that the parties did not waive their right to challenge the consent order on appeal. JA72. In particular, the order stated that RJR does not waive any challenge to the requirement that it televise corrective statements based on its acquisition of B&W’s tobacco operations. Id. The order also stated that defendants

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1 The Court partially vacated the remedial order and remanded for further consideration insofar as it obliged the tobacco companies to require their “participating retailers” to employ point-of-sale displays of the corrective statements. Philip Morris, 566 F.3d at 1141-42.

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reserve the right to challenge the content of the corrective statements and the requirement that the corrective statements be published in different media. Id.

Four of the tobacco-company defendants—including “R.J. Reynolds Tobacco Company (individually and as successor to Brown & Williamson Tobacco Corporation)”—appealed from the consent order. United States v. Philip Morris USA Inc., 801 F.3d 250, 256 (D.C. Cir. 2015). Although the consent order specifically provided that it did not waive a challenge to the requirements that RJR televise corrective statements based on its acquisition of B&W’s tobacco operations, JA72, RJR did not raise that issue in that appeal.

This Court held that the district court lacked authority under RICO to require certain preambles to the corrective statements that would have announced that a federal court had ruled that the defendants had deliberately deceived the American public about the dangers of smoking. Philip Morris, 801 F.3d at 261. Such language, this Court held, went beyond

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RICO’s authorization of equitable remedies that “prevent and restrain” future RICO violations. Id. at 262 (quoting 18 U.S.C. § 1964(a)).

The Court rejected the remainder of the defendants’ challenges, however. The defendants challenged language required by the 2014 consent order addressing the defendants’ manipulation of cigarette design and chemical composition to maximize nicotine delivery. Philip Morris, 801 F.3d at 258. The Court held that the defendants had waived the right to challenge that language because the district court’s earlier, “2006 remedial order warned defendants that they would be required to make just such corrective statements,” yet the defendants did not object to that requirement when they previously appealed from the remedial order. Id.

The Court likewise held that the defendants had waived their First Amendment challenge to the requirement that they publish corrective statements in multiple media. Id. at 263. The defendants could have challenge that requirement, but did not, when they previously appealed from the 2006 remedial order, and defendants’ purported reservation of their right in the 2014 consent order to challenge the multiple-media

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requirement “cannot operate retroactively or otherwise resurrect waived claims.” Id.2

2. On June 11, 2014—nearly eight years after the district court entered the 2006 remedial order—RJR filed in the district court a motion for relief from that order insofar as it requires RJR to publicize the corrective statements on television in connection with its acquisition of B&W’s tobacco operations. Dkt. No. 6103. RJR’s motion made clear that it sought only that limited relief. Id. at 1 n.2. Thus, for example, RJR did not challenge the requirement that it affix “onserts” to cigarette packages for the B&W brands that it continues to sell. See id. at 13. Nor did the motion seek relief from the requirement that RJR televise corrective statements “on its own behalf.” Id. at 6. The motion sought only relief from RJR’s obligation to televise corrective statements “twice—once on its own behalf and then again on B&W Tobacco’s behalf.” Id.

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2 In addition to the two appeals discussed in the text, this case has been before this Court on several other occasions. See Certificate as to Parties, Rulings, and Related Cases, supra.

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RJR made two arguments in support of its request for partial relief from the 2006 remedial order. First, RJR argued that it was entitled to relief under Federal Rule of Civil Procedure 60(b)(4). Dkt. No. 6103, at 10-17. That rule requires a court to grant relief from a judgment if the judgment is “void.” Id. at 7 (quoting Fed. R. Civ. P. 60(b)(4)). A judgment is void if the district court entering it “lacked . . . subject-matter jurisdiction.” Id. (ellipsis in original) (quoting Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 892 F. Supp. 2d 219, 222 (D.D.C. 2012)). RJR argued that the district court lacked “jurisdiction” to impose a television-publication requirement on RJR related to RJR’s acquisition of B&W’s tobacco operations. Id. at 2. It urged that RICO only authorizes courts to impose equitable remedies to prevent and restrain future RICO violations. Id. at 11. Because B&W “no longer exists,” RJR argued, any requirement that RJR televise corrective statements on behalf of B&W could not prevent and restrain future RICO violations by B&W. Id. Accordingly, the requirement “exceed[s] the statutory basis for the [district court’s] jurisdiction in this suit and therefore [is] void,” id. at 16.

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Second, RJR argued that it was entitled to relief under Rule 60(b)’s catch-all provision, which authorizes relief “upon such terms as are just.” Dkt. No. 6103, at 9 (quoting Bowyer v. District of Columbia, 779 F. Supp. 2d 159, 162 (D.D.C. 2011)); see Fed. R. Civ. P. 60(b)(6). RJR claimed that relief would be appropriate because “[t]here is no legal or evidentiary basis that would justify requiring [RJR] to engage in multiple, repeated publications of the corrective statements—above and beyond the requirements applicable to other Defendants.” Id. at 17. RJR argued that its request for relief was timely because it did not understand, prior to the mediation leading to the 2014 consent order, that the 2006 remedial order required RJR to televise corrective statements not only on its own behalf, but also in connection with its acquisition of B&W’s tobacco operations. Id. at 19.

The district court rejected both of RJR’s arguments and denied its motion for partial relief from the 2006 remedial order. JA98-102. The court rejected RJR’s contention that it was entitled to relief under Rule 60(b)(4) because RJR’s argument about the district court’s authority to “subject [it] to a permanent injunction in its capacity as successor to B&W Tobacco’s

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operations” concerned “the merits of the relief order, not this Court’s jurisdiction.” JA98, 101; see JA101 (discussing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998), and Morrison v. National Austl. Bank Ltd., 561 U.S. 247 (2010)). The district court denied RJR’s request for relief under Rule 60(b)(6) because it was untimely and because RJR had failed to dispute its obligation to televise corrective statements in its prior appeals. JA99-100.

3. In April 2015, ten months after RJR filed the Rule 60(b) motion, RJR and defendant Lorillard Tobacco Co. filed a notice with the district court informing the court that Lorillard was “merging into” RJR. JA78. A provision of the 2006 remedial order prohibits the sale of any defendant’s cigarette business to another without prior consent of the court, unless the sale is to another defendant already subject to the 2006 remedial order. JA33-34. RJR and Lorillard explained that they did not believe prior court approval of the merger was required because the transaction involved the merger of one defendant’s cigarette operations with those of another. JA84. In addition, the notice explained that the merger “will not weaken the remedial impact” of the 2006 remedial order because, after the merger, RJR

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“will remain subject to all requirements” of the order, and RJR “will assume [Lorillard’s] obligations,” including “publication of the corrective statements on television.” JA85. The notice observed that RJR’s assumption of Lorillard’s obligations concerning the corrective statements was “subject, of course, to the outcome of the pending appeals” from the 2014 consent order. Id.; see United States v. Philip Morris USA Inc., 801 F.3d 250 (D.C. Cir. 2015) (deciding those appeals).

SUMMARY OF ARGUMENT

I. In reviewing RJR’s request for relief from the 2006 remedial order under Federal Rule of Civil Procedure 60(b)(4), the “only question” for the Court “is whether the judgment is void.” Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1180 (D.C. Cir. 2013). A judgment is void in the absence of subject-matter jurisdiction or personal jurisdiction, or if a party was deprived of notice or the opportunity to be heard. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010); Bell Helicopter, 734 F.3d at 1180, 1181. RJR does not claim that any of these circumstances

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apply here, and thus has not demonstrated that the 2006 remedial order was void.

Whether the order exceeded the district court’s authority to “prevent and restrain” (18 U.S.C. § 1964(a)) future RICO violations does not implicate the district court’s subject-matter jurisdiction, and RJR errs in drawing a different conclusion from the language in the civil remedies provision stating that district courts “shall have jurisdiction” to issue appropriate orders “to prevent and restrain” RICO violations. 18 U.S.C. § 1964(a). The Supreme Court has recognized that a statute’s use of the term “jurisdiction” to specify the district courts’ remedial powers does not bear on the courts’ subject-matter jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Indeed, in Steel Company, the Supreme Court hypothesized a statute very much like RICO’s civil remedies provision and described as “fanciful” the idea that the statute restricts the district courts’ subject-matter jurisdiction. Id. at 91-92.

II. The district court acted well within its discretion in denying RJR’s motion for relief under Federal Rule of Civil Procedure 60(b)(6). A movant

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seeking relief under that rule must do so within “a reasonable time,” and must show “extraordinary circumstances” justifying relief from judgment. Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011). A movant that “had an opportunity for appeal and forwent that appeal” cannot make the “compelling showing of inequity or hardship” necessary to establish extraordinary circumstances, unless there were “circumstances that essentially made the decision not to appeal an involuntary one.” Id. at 1120, 1121 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).

The district court entered the remedial order from which RJR seeks relief on August 17, 2006. JA34. Since that date, RJR has been party to multiple appeals before this Court. In none of those appeals did RJR seek this Court’s review of its obligation under the remedial order to televise corrective statements in connection with its acquisition of B&W’s tobacco operations. Because RJR could have raised the issue, but did not, in its prior appeals, RJR cannot establish extraordinary circumstances.

RJR is plainly mistaken in claiming that it raised the issue “at the earliest possible opportunity” (Br. 35) based on the assertion that it did not

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understand the requirements of the 2006 remedial order until 2014. RJR cites no authority for the proposition that a party is entitled to relief under Rule 60(b)(6) eight years after an order issues on the ground that it took that long for the party to grasp its scope. In any event, even on its own theory, RJR could have raised the issue in its 2014 appeal from the remedial order but failed to do so.

Although RJR argues that it would be “arbitrary and impermissibly punitive” (Br. 32) to require it to publish corrective statements in connection with its acquisition of B&W’s tobacco operations, it told quite a different story in 2015 when it notified the district court of its merger with Lorillard. At that time, RJR declared that the merger “will not weaken the remedial impact” of the 2006 remedial order because, among other reasons, RJR “will assume [Lorillard’s] obligations,” including “publication of the corrective statements on television.” JA85. In light of RJR’s own representations, the district court most certainly did not abuse its discretion in declining to grant RJR relief under Rule 60(b)(6).

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STANDARD OF REVIEW

This Court reviews de novo a district court’s denial of a request for relief under Federal Rule of Civil Procedure 60(b)(4) because that rule provides for relief from a void judgment, and whether a judgment is void is a question of law. Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1179 (D.C. Cir. 2013). By contrast, district court rulings on other motions under Rule 60(b) “are subject to only limited and deferential appellate review.” Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011); see Bell Helicopter, 734 F.3d at 1179 (same). However, the Court reviews any “underlying legal issues de novo.” Marino v. Drug Enf’t Admin., 685 F.3d 1076, 1080 (D.C. Cir. 2012).

ARGUMENT

I. BECAUSE THE 2006 REMEDIAL ORDER WAS NOT VOID, THE DISTRICT COURT PROPERLY DENIED RJR’S REQUEST FOR RELIEF UNDER RULE 60(b)(4)

A. Federal Rule of Civil Procedure 60(b)(4) provides for relief “from a final judgment, order, or proceeding” if “the judgment is void.” See Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1179-80 (D.C. Cir. 2013) (“Under [Rule 60(b)(4)] . . . , the only question for the court is

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whether the judgment is void.”) (alterations in original). The Supreme Court has instructed that Rule 60(b)(4) applies to an “exceedingly short” list of district court decisions: those involving “the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). This Court has elaborated the types of jurisdictional error that make a judgment void. Any judgment entered “in excess of subject-matter jurisdiction” is void, as is any judgment entered in the absence of personal jurisdiction over the defendant. Bell Helicopter, 734 F.3d at 1180-1181; see Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987).

“A judgment is not void,” however, “simply because it is or may have been erroneous.” Espinosa, 559 U.S. at 270. “Similarly, a motion under Rule 60(b)(4) is not a substitute for a timely appeal.” Id. Allowing relief under those circumstances would permit “Rule 60(b)(4)’s exception to finality [to] swallow the rule.” Id.; see also 11 Charles Alan Wright et al., Federal Practice and Procedure § 2862 (3d ed. 2008) (“[I]f the court finds that

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there was subject-matter or personal jurisdiction, or that no due-process violation has occurred, the motion will be denied.” (footnotes omitted) (collecting cases).

RJR concedes that the district court had subject-matter jurisdiction over this civil RICO action. See Br. 1 (“The district court had subject matter jurisdiction in this action under 28 U.S.C. §§ 1331, 1345, and 2201.”). RJR does not dispute that the district court had personal jurisdiction over it. And RJR does not contend that it was deprived of notice or an opportunity to be heard concerning the 2006 remedial order. Accordingly, RJR has not established that the 2006 remedial order was void. That ends the inquiry.

B. RJR argues, however, (1) that RICO’s civil remedies provision grants district courts subject-matter jurisdiction; (2) that any remedial order that cannot “prevent and restrain” RICO violations exceeds the civil remedies provision’s grant of jurisdiction; (3) that the 2006 remedial order cannot prevent and restrain RICO violations insofar as it requires RJR to televise corrective statements in connection with its acquisition of B&W’s tobacco operations; and (4) that, therefore, the district court was without

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subject-matter jurisdiction to impose that requirement, which, accordingly, is void and subject to relief under Rule 60(b)(4). Br. 17-32.

The premise of RJR’s argument—that RICO’s civil remedies provision defines the courts’ subject-matter jurisdiction—is mistaken. RICO’s civil remedies provision states that “[t]he district courts of the United States shall have jurisdiction to prevent and restrain violations of [18 U.S.C. § 1962] by issuing appropriate orders.” 18 U.S.C. § 1964(a). The Supreme Court has made clear, however, that when used in this fashion, “jurisdiction” specifies a court’s remedial authority and not its subject- matter jurisdiction.

Thus, for example, in Steel Company v. Citizens for a Better Environment, the Supreme Court considered a statute that provided: “The district court shall have jurisdiction in actions brought under subsection (a) of this section against an owner or operator of a facility to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement.” 523 U.S. 83, 90 (1998) (quoting 42 U.S.C. § 11046(c)). The Court explained that subject-matter jurisdiction concerns

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“the courts’ statutory or constitutional power to adjudicate the case.” Id. (emphasis added; other emphasis omitted); see also Morrison v. National Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (same). It held that, rather than specifying the scope of the district courts’ subject-matter jurisdiction, the statutory provision at issue identified “the remedial powers of the court, viz., to enforce the violated requirement and to impose civil penalties.” Steel Co., 523 U.S. at 90 (emphasis added; other emphasis omitted); see id. (“[I]t is commonplace for the term [‘jurisdiction’] to be used as it evidently was here.”) (identifying other statutes).

In a passage particularly relevant to this appeal, Steel Company described as “fanciful” the idea “that a statute saying ‘the district court shall have jurisdiction to remedy violations [in specified ways]’ renders the existence of a violation necessary for subject-matter jurisdiction.” 523 U.S. at 91-92 (alteration in original). RICO’s civil remedies provision has the same structure as the statute hypothesized by the Court. See 18 U.S.C. § 1964(a) (“The district courts of the United States shall have jurisdiction to prevent and restrain violations of [18 U.S.C. § 1962] by issuing appropriate

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orders.”). Just as it would be fanciful to construe the hypothetical statue as making “the existence of a cause of action for past violations” jurisdictional, Steel Co., 523 U.S. at 91, it would be equally fanciful to construe such a statute’s authorization of remedies to address a violation as limiting the courts’ subject-matter jurisdiction.3

RJR notes (Br. 26-29) that this Court’s prior decisions in this case refer to the district court’s “jurisdiction” to enter forward-looking remedial orders to prevent and restrain RICO violations. Br. 26-28 (collecting quotations). But nothing in those decisions turned on the jurisdictional status of the district courts’ remedial authority under 18 U.S.C. § 1964(a), and it is unsurprising that this Court’s decisions tracked the statutory

—–

3 Accordingly, RJR’s reliance (Br. 19-20) on the district court’s decision in Securities & Exchange Comm’n v. Bolla, 550 F. Supp. 2d 54 (D.D.C.
2008), is unavailing. The statute at issue in that case—like the hypothetical statute in Steel Company and like RICO’s civil remedies provision— provided for district court “jurisdiction” to remedy violations of a statute in specified ways. See Bolla, 550 F. Supp. 2d at 59 (quoting 15 U.S.C. § 80b-9(e)(1)). Under Steel Company, it is clear that the district court erred in granting relief under Rule 60(b)(4) based on its conclusion that the order in question was void because it provided a remedy the court later determined was not authorized by the statute. See id. at 59-63.

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language. Subject-matter jurisdiction was not contested and the cited language would constitute at most the sort of “‘drive-by jurisdictional rulings’ where jurisdiction is ‘assumed by the parties[] and . . . assumed without discussion by the Court’ [that] have ‘no precedential effect.’” United States v. Monzel, 641 F.3d 528, 541 n.13 (D.C. Cir. 2011) (fist two alterations in original) (quoting Steel Co., 523 U.S. at 91).

Thus, whether a remedial order will prevent and restrain RICO violations is a merits question, as the district court correctly held. JA101. Even assuming that the 2006 remedial order incorrectly requires RJR to televise corrective statements in connection with its acquisition of B&W’s tobacco operations, see RJR Br. 20-25, 29-32, that order would be mistaken but not void. See Espinosa, 559 U.S. at 270 (“A judgment is not void * * * simply because it is or may have been erroneous.”). Indeed, if RJR’s contrary understanding were correct, no civil remedy under RICO or similarly worded statutes would ever truly be final, because Rule 60(b)(4) “places no time limit on an attack upon a void judgment.” Bell Helicopter, 734 F.3d at 1180. Congress does not intend that result when it specifies the

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scope of a court’s remedial authority. See Espinosa, 559 U.S. at 270 (“The list of [void judgments] is exceedingly short; otherwise Rule 60(b)(4)’s exception to finality would swallow the rule.”).

II. THE DISTRICT COURT PROPERLY DENIED RJR’S REQUEST FOR RELIEF UNDER RULE 60(b)(6) BECAUSE RJR COULD HAVE RAISE THE ISSUE, BUT FAILED TO, IN ITS PRIOR APPEALS

A. 1. If relief is not available under Federal Rule of Civil Procedure 60(b)(1)-(5), Rule 60(b)(6) authorizes a district court to grant relief from a judgment or order for “any other reason that justifies relief.” This Court has repeatedly “cautioned that [Rule 60(b)(6)] should be only sparingly used,” and it requires a “compelling showing of inequity or hardship.” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (1988) (quotation marks omitted); see, e.g., Salazar v. District of Columbia, 633 F.3d 1110, 1120 (D.C. Cir. 2011) (same).

There are two central requirements for relief under Rule 60(b)(6). First, a party seeking relief under Rule 60(b)(6) must do so within “a reasonable time.” Salazar, 633 F.3d at 1116. “Second, the Supreme Court cases have required a movant seeking relief under Rule 60(b)(6) to show

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‘“extraordinary circumstances” justifying the reopening of a final judgment.’” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). Thus, RJR’s contention that it need not show extraordinary circumstances, Br. 39 (citing Federal Practice and Procedure, supra § 2864), is at odds with this Court’s precedent.

2. A movant that “had an opportunity for appeal and forwent that appeal” cannot make the “compelling showing of inequity or hardship” necessary to establish extraordinary circumstances, unless there were “circumstances that essentially made the decision not to appeal an involuntary one.” Salazar, 633 F.3d at 1120-1121 (citing Ackermann v. United States, 340 U.S. 193, 197-98 (1950)); see Federal Practice and Procedure, supra § 2864 (“A party remains under a duty to take legal steps to protect his own interests. In particular, it ordinarily is not permissible to use a Rule 60(b)(6) motion to remedy a failure to take an appeal.”) (footnote omitted). Thus, “strategic choices that later turn out to be improvident,” Salazar, 633 F.3d at 1120, or “lack of diligence in pursuing review” of an issue, Gonzalez , 545 U.S. at 537, preclude a finding of extraordinary circumstances.

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The district court entered the remedial order from which RJR seeks relief on August 17, 2006. JA34. Since that date, RJR has been party to four appeals before this Court—the 2015 corrective statements appeal, 801 F.3d 250; the 2012 appeal challenging the district court’s order clarifying the defendants’ obligation to disclose certain marketing data, 686 F.3d 839; the 2012 appeal from the district court’s order denying defendants’ motion to vacate the judgment, 686 F.3d 832; and the 2009 appeal from the district court’s liability determination and remedies order, 566 F.3d 1095. In none of those appeals did RJR seek this Court’s review of its obligation under the remedial order to televise corrective statements in connection with its acquisition of B&W’s tobacco operations. Neither in the district court (see Dkt. No. 6103, at 17-20) nor in this Court (see Br. 32-41) did RJR attempt to show that its decision not to raise that issue on appeal was “essentially
* * * involuntary.” Salazar, 633 F.3d at 1121.

B. RJR’s contention that it raised the issue of its obligations with respect to B&W “at the earliest possible opportunity” (Br. 35) is plainly mistaken. RJR claims that, until the mediation that preceded the 2014

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consent order, it was unaware of its obligation under the 2006 remedial order to televise corrective statements in connection with its acquisition of B&W’s tobacco operations. Br. 40; see id. 12, 13, 36; see also JA51-77 (2014 consent order). Even accepting that contention for purposes of argument, RJR could have raised the issue when it appealed from the 2014 consent order. RJR appealed from that order, “individually and as successor to Brown & Williamson Tobacco Corporation.” Philip Morris, 801 F.3d at 256. Among the issues RJR challenged in that appeal was the requirement under the remedial and consent orders that it publish corrective statements “on [its] company websites and cigarette packages, as well as in newspaper and television ads.” Id. at 263; see id. (holding that tobacco company defendants waived their challenge to the multiple-media requirement by failing to present it in an earlier appeal). Yet, although RJR was clearly aware at that point that the district court’s orders required it to televise corrective statements with respect to its acquisition of B&W’s tobacco operations (see Br. 40), and even though RJR in the consent order purported to “expressly preserve[ RJR’s] right to ‘challenge * * * the requirement

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that it publish Corrective Statements on television in its capacity as successor to [B&W]’” (Br. 36 (quoting JA72)), RJR nevertheless failed to present that issue to this Court in its appeal from the 2014 consent order. RJR is again attempting to use “piecemeal appeals, cloaked in the guise of jurisdictional inquires, [to] come in through the back door.” Philip Morris, 686 F.3d at 844 (quoting Birmingham Fire Fighters Ass’n 117 v. Jefferson Cty., 280 F.3d 1289, 1293 (11th Cir. 2002)). But as this Court previously instructed RJR, “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.” Philip Morris, 801 F.3d at 257.

In any event, RJR cites no authority to support the contention that a party’s failure to fully grasp the scope of its obligations under a remedial order compels a district court to grant a Rule 60(b)(6) motion eight years after entry of the order. RJR’s argument is particularly anomalous because the 2006 order provided that any sale or transfer of a defendant’s tobacco

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business would oblige the purchaser to comply with the remedial order. JA33-34. Although that provision did not address RJR’s completed acquisition of B&W’s tobacco operations, it was clear that the district court did not believe that acquisition of one defendant by another vitiated obligations to make corrective disclosures with regard to both companies. At an absolute minimum, RJR could not reasonably assume a contrary reading and then declare after eight years that the interests of justice required relief under Rule 60(b)(6).

Finally, even putting aside RJR’s earlier failures to appeal, RJR has not made the compelling showing of inequity or hardship necessary for relief under Rule 60(b)(6). RJR argues that it would be “arbitrary and impermissibly punitive” to require it to publish corrective statements on television “twice,” once on its own behalf and once in connection with its acquisition of B&W’s tobacco operations. Br. 32 (emphasis omitted). Such a requirement, RJR argues, would do nothing to “prevent and restrain” RJR from committing future RICO violations. Br. 33. Moreover, it would be “unjust,” RJR contends, to treat it differently from the other tobacco

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company defendants, which are only required to publish one set of corrective statements on television. Br. 34.

RJR’s protestations are difficult to square with its representation to the district court that its merger with Lorillard “will not weaken the remedial impact” of the 2006 remedial order because, after the merger, RJR “will remain subject to all requirements” of the order, and RJR “will assume [Lorillard’s] obligations,” including “publication of the corrective statements on television.” JA85. If, in connection with its merger with Lorillard, RJR undertook to publish corrective statements on television twice—once for itself and once for Lorillard—it is difficult to see why it would be “arbitrary and impermissibly punitive” to require it to undertake the same steps in connection with its acquisition of B&W’s tobacco operations. Similarly, RJR’s proffer of its willingness to take on Lorillard’s publication obligations as a reason why the merger would not undermine the district court’s remedial orders forecloses RJR’s argument now that imposing a publication requirement on RJR in connection with its

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acquisition of B&W’s tobacco operations would do nothing to prevent and restrain future RICO violations.

At the very least, these considerations establish that the district court acted well within its discretion in denying RJR’s request for relief under Rule 60(b)(6) from its obligation to publish corrective statements on television in connection with its acquisition of B&W’s tobacco operations.

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CONCLUSION

The Court should affirm the district court’s order denying RJR relief under Federal Rule of Civil Procedure 60(b).

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant

Attorney General

CHANNING D. PHILLIPS

United States Attorney

MARK B. STERN

ALISA B. KLEIN

s/ Lewis S. Yelin

LEWIS S. YELIN

Attorneys, Appellate Staff

Civil Division, Room 7239

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530

(202) 514-3425

March 17, 2016

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the requirements of Fed.

R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Palatino Linotype, a proportionally spaced font.

I further certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,385 words, excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.

s/ Lewis S. Yelin

LEWIS S. YELIN

Counsel for Appellee

United States of America

USCA Case #15-5210 Document #1604384 Filed: 03/17/2016 Page 44 of 45

CERTIFICATE OF SERVICE

I hereby certify that on March 17, 2016, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system, which, under the Court’s rules, constitutes service on all parties registered with the CM/ECF system.

I further certify that on March 17, 2016, I caused service to be effected by regular mail on the following:

David M. Bernick

Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654 Suite 1100E

Judah Best

Debevoise & Plimpton LLP

555 13th Street, NW

Washington, DC 20004

Clausen Ely Jr.

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW Suite 700

Washington, DC 20001

Stephen Printiss Murphy

Locke Lord LLP

701 8th Street, NW

Washington, DC 20001-4956

Michael Asher Schlanger

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001-4956

Arnon D. Siegel

Dechert, LLP

1900 K Street, NW

Washington, DC 20006-1110

USCA Case #15-5210 Document #1604384 Filed: 03/17/2016 Page 45 of 45

David Jacques Smith

Arent Fox LLP

1717 K Street, NW

Washington, DC 20006-5344

I further certify that on March 17, 2016, I caused eight paper copies of this brief to be filed with the Court.

s/ Lewis S. Yelin

LEWIS S. YELIN

Counsel for Appellee

United States of America

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