USA v. MO APPEAL: BRIEF FOR THE INTERVENORS, Mar 31, 2016

March 31, 2016 5:50 pm by Gene Borio

The PDF is Here

EXCERPT:

It is far too late for RJR to seek relief from its obligations under the 2006 Remedial Order, including its responsibility to run a set of television advertisements as the corporate successor to B&W. Its arguments that the district court lacks the authority to direct remedies at B&W, to be carried out by RJR, are waived, and its claim that district court must separately justify each component of the corrective statements remedy has already been rejected by this Court, and may not be re-litigated here.

The district court did not abuse its discretion in denying RJR’s effort to weaken the corrective statements remedy. The court appropriately found that RJR is not entitled to relief under any prong of Rule 60(b), and RJR provides no basis for this Court to second guess that ruling.

END EXCERPT

FULL TEXT:

[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,

TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors-Appellees,
v.

PHILIP MORRIS USA INC., et al.,
Defendants-Appellants,

and

R.J. REYNOLDS TOBACCO CO., et al.,
Defendant-Appellant.

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

BRIEF FOR THE PLAINTIFF-INTERVENORS TOBACCO-FREE KIDS ACTION FUND, et al.

Howard M. Crystal Katherine A. Meyer
MEYER GLITZENSTEIN & EUBANKS LLC
4115 Wisconsin Ave., N.W. Suite 210
Washington, DC 20016
202-588-5206
202-588-5029 (facsimile)

No. 15-5210

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee, TOBACCO FREE KIDS ACTION FUND, et al.,
Plaintiff Intervenors-Appellees,
v.

PHILIP MORRIS USA INC., et al.,

Defendants-Appellants.

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

INTERVENOR APPELLEES= CERTIFICATE
AS TO PARTIES, RULINGS AND RELATED CASES AND CORPORATE DISCLOSURE STATEMENT

Parties, Intervenors And Amici

Parties, intervenors and amici appearing before the district court and in this Court are listed in Appellants= Certificate.

PLAINTIFF-INTERVENOR APPELLEES= RULE 26.1 CORPORATE DISCLOSURE STATEMENT

The Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, and Americans for Nonsmokers= Rights, are non-profit education and advocacy organizations dedicated to a number of public health issues, including working to prevent and reduce tobacco use and its harms. The National African American Tobacco Prevention Network is a national non-profit organization dedicated to facilitating the development and implementation of comprehensive and community competent tobacco control programs to benefit communities and people of African descent.
None of the Intervenors has any parent companies or issues any stock or partnership shares.
Rulings Under Review

Reference to the ruling at issue appears in Appellants= Certificate.

Related Cases

Related cases are listed in Appellant=s certificate.

2

TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES iii
GLOSSARY. v
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 4
RJR and B&W’s Participation In The RICO Enterprise 4
RJR’s Acquisition of B&W 8
RJR’s Efforts To Escape Its Obligation To Run Television Advertisements As The Corporate Successor To B&W 10
SUMMARY OF ARGUMENT 15
ARGUMENT 16
RJR MAY NOT NOW CHALLENGE THE ORDER TO RUN TELEVISION ADVERTISEMENTS. 16
RJR Has Waived Its Arguments Concerning The Scope Of Its
Obligations As Corporate Successor To B&W. 18
RJR Was Required To Pursue This Issue In The First Appeal From The 2006 Remedial Order 18
RJR’s Arguments That It Could Not Have Raised This Issue Prior To This Appeal Are Meritless 20

Brown and Williamson Holdings Is Entirely Irrelevant To RJR’s Obligation to Carry Out The Remedial Order In Its Capacity As Successor To B&W 20
RJR Has Always Understood Its Obligations To Carry Out The Remedial Provisions Directed At B&W 22
RJR May Not Re-Litigate Whether Each Corrective Statement Must Independently Prevent And Restrain Further Fraud. 24
THE DISTRICT COURT DID NOT ERR IN FINDING THAT RJR IS NOT ENTITLED TO RELIEF UNDER RULE 60(b). 26
The District Court Did Not Err Under Rule 60(b)(4). 26
The District Court Was Well Within Its Broad Remedial Discretion In Concluding That No Other Rule 60(b) Relief Was Warranted 29
CONCLUSION 32
CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES
CASES PAGE
Bell Helicopter Textron Inc. v. Iran,
892 F. Supp. 2d 219 (D.D.C. 2012) 29
*Crocker v. Piedmont Aviation, Inc.,
49 F.3d 735 (D.C. Cir. 1995)……………………………………………………………… 16, 25
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc.,
134 S. Ct. 1744 (2014) 29
Holland v. Williams Mountain Coal Co.,
256 F.3d 819 (D.C. Cir. 2001) 27
Laffey v. Northwest Airlines, Inc.,
740 F.2d 1071 (D.C. Cir. 1984) 67
LeSane v. Hillenbrand Indus., Inc. v. Midmark Corp.,
791 F. Supp. 871 (D.D.C. 1992). 27
Novartis Corp. v. FTC,
223 F.3d 783 (D.C. Cir. 2000) 30
Palmer v. Kelly,
17 F.3d 1490 (D.C. Cir. 1994) 17
Securities and Exchange Comm’n v. Bolla,
550 F. Supp. 2d 54 (D.D.C. 2008) 29
*United States v. Philip Morris USA Inc.
566 F.3d 1095 (D.C. Cir. 2009)……………………….. 1, 2, 3, 8, 12, 13, 19, 20, 22, 25
United States v. Philip Morris USA Inc.,
686 F.3d 832 (D.C. Cir. 2012) 3

* Authorities upon which we chiefly rely are marked with an asterisk.
iii

United States v. Philip Morris USA Inc.,
686 F.3d 839 (D.C. Cir. 2012)………………………………………………………… 3, 11, 18
*United States v. Philip Morris USA Inc.,
801 F.3d 250 (D.C. Cir. 2015)………………………………………… 3, 14, 16, 18, 24, 25
United States v. Philip Morris USA Inc.,
No. 99-2496 (GK), 2005 WL 1830815 (D.D.C. July 22, 2005) …………………..1, 2
*United States v. Philip Morris USA Inc.,
449 F. Supp. 2d 1 (D.D.C. 2006)……………….. 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 19
United States v. Philip Morris USA, Inc.,
793 F. Supp. 2d 164 (D.D.C. 2011) 13
United States v. Philip Morris USA, Inc.,
783 F. Supp. 2d 23 (D.D.C. 2012) ………………………………………………… 14, 21, 28
United States v. Philip Morris USA, Inc.,
907 F. Supp. 2d 1 (D.D.C. 2012). 13
United States v. Philip Morris USA, Inc.,
No. 99-2496 (GK), 2016 WL 509279 (D.D.C. Feb. 8, 2016) 13
United States v. Thomas,
572 F.3d 945 (D.C. Cir. 2009)………………………………………………………. 17, 19, 20
STATUTES
18 U.S.C. § 1961-1968 1
28 U.S.C. § 1292(a) 18

* Authorities upon which we chiefly rely are marked with an asterisk.
iv

GLOSSARY
B&W Brown and Williamson Tobacco Company BWH Brown and Williamson Holdings, Inc.
RICO Racketeer Influenced and Corrupt Organizations Act RJR R.J. Reynolds Tobacco Company

v

STATEMENT OF THE ISSUES

Whether R.J. Reynolds Tobacco Company (“RJR”) may re-litigate the district court’s 2006 Remedial Order requiring the company to run a set of television advertisements as the corporate successor to Brown and Williamson Tobacco Company (“B&W”).
Whether the district court abused its discretion in rejecting RJR’s latest effort to reduce the scope of the corrective statements remedy.
STATEMENT OF THE CASE

In this case under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, the district court found that RJR and B&W, among others, engaged in a massive conspiracy to deceive the American people about the toxicity and addictiveness of cigarettes. United States v. Philip Morris USA Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff’d in part, 566 F.3d 1095 (D.C. Cir.
2009) (“Affirmance Opinion”). The Public Health Intervenors are six national nonprofit public health organizations – 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 – who intervened to seek strong and vitally important remedies to prevent and restrain this deception. See United States v. Philip Morris USA Inc.,

No. 99-2496 (GK), 2005 WL 1830815, at *6 (D.D.C. July 22, 2005) (“In a case of

this magnitude, which could potentially affect the health and welfare of the American public . . . it will serve the public interest for major public health organizations, such as Intervenors, who have long experience with smoking and health issues, to contribute their perspectives on what appropriate and legally permissible remedies may be imposed should liability be found.”).
Upon finding Defendants’ fraud likely to continue, the district court considered eight categories of remedies, finding only a few of them appropriate to prevent and restrain further fraud. See 2006 Remedial Order (JA017).1 One of those remedies requires “each Defendant” – including RJR and B&W – to run a single television advertisement each week for a year informing the public of the truth about cigarettes. 2006 Remedial Order at 9 (JA025). The 2006 Remedial Order also requires each of the companies – again, including both RJR and B&W – to run the same corrective statements on their websites and in cigarette pack onserts and newspapers – none of which RJR takes issue with here. Id. at 4-8 (JA020-24).

RJR erroneously claims the district court afforded the “vast majority” of the requested relief, RJR Br. at 8, when, in fact, the court rejected all of the most
far-reaching remedies. See Affirmance Opinion 566 F.3d at 1147-50 (affirming district court’s rejection of hundreds of billions of dollars requested for smoker cessation, public education, and youth smoking reduction remedies).

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This Court affirmed almost all of the district court’s findings and remedies, see Affirmance Opinion, 566 F.3d 1095, and has since largely rejected three additional appeals. See United States v. Philip Morris USA Inc., 686 F.3d 832 (D.C. Cir. 2012); United States v. Philip Morris USA Inc., 686 F.3d 839 (D.C. Cir. 2012) (“Marketing Data Opinion”); United States v. Philip Morris USA Inc., 801 F.3d 250 (D.C. Cir. 2015) (“Corrective Statements Opinion”).
Before the district court entered its judgment, RJR acquired B&W and accepted responsibility for all of B&W’s tobacco-related legal liabilities. See infra at 9-10. As a consequence, RJR acknowledges that where the 2006 Remedial Order refers to obligations of B&W, those obligations automatically flow to RJR.
Nonetheless, with this fifth appeal since the district court’s judgment, RJR seeks to reduce the scope of the corrective statement remedy by eliminating the requirement that RJR run a television advertisement each week for a year in its capacity as successor to B&W. Instead, without any explanation as to how its position is the least bit consistent, RJR urges that it only be required to fulfill B&W’s obligations under the Court’s 2006 Remedial Order with respect to the other corrective statements media.

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STATEMENT OF FACTS

A. RJR and B&W’s Participation In The RICO Enterprise

Relying on more than 4,000 Findings of Fact (“FF”), the district court found that RJR, B&W, and other tobacco companies engaged in a massive and
decades-long coordinated campaign to deceive millions of American consumers, and particularly young people, about the true nature of their cigarette brands. 449
F. Supp. 2d at 35-851 (FF 1-4088). The court found that RJR and B&W engaged in massive fraud in six specific areas: (1) “falsely den[ying], distort[ing] and minimiz[ing] the significant adverse health consequences of smoking for decades”;
“conceal[ing] and suppress[ing] research data and other evidence that nicotine is addictive”; (3) “falsely den[ying] that they can and do control the level of nicotine delivered in order to create and sustain addiction”; (4) “falsely market[ing] and promot[ing] low tar/light cigarettes as less harmful than full-flavored cigarettes in order to keep people smoking and sustain corporate revenues”; (5) “publicly den[ying] what they internally acknowledged: that [second-hand smoke] is hazardous to nonsmokers”; and (6) “spen[ding] billions of dollars every year on their marketing activities in order to encourage young people to try and then continue purchasing their cigarette products in order to provide the replacement smokers they need to survive.” FF 509-1763; FF 2023-3862.

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The district court found that the Presidents of RJR and B&W attended the very first meetings, in 1953, where the tobacco company Defendant enterprise devised the “‘open question’ position that it would maintain for more than forty years – that smoking was not a proven cause of lung cancer; that cigarettes were not injurious to health; and that more research on smoking and health issues was needed.” FF 18; see also FF 17 (finding that the Presidents of Reynolds and B&W “subscribed to” this “Frank Statement” on cigarettes). RJR and B&W also were central players in the industry’s “sophisticated public relations vehicle[s] – based on the premise of conducting independent scientific research – to deny the harms of smoking and reassure the public.” FF 21-59; FF 113 (RJR and B&W form the Tobacco Institute).
Among other misconduct, both companies also participated in “Special Projects” designed to “obtain and develop witnesses favorable to Defendants for testimony before Congress and other regulatory bodies, for use in litigation, and for support of industry public statements.” FF 213; see also FF 280 (“Lawyers’ Special Accounts” funded by RJR and B&W). Moreover, as the district court found, RJR and B&W were both central players in each facet of Defendants’ fraud, including the following:

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RJR and B&W knew the adverse health effects of smoking (FF 672-76; 681-87; 694; 698-99), but continuously denied this knowledge to the public (FF 714; 724-27; 747-49; 774; 777-78; 781-4; 798-801; 814);

RJR and B&W knew the addictiveness of cigarettes (FF 957-87; 1080-117), but continuously denied that smoking is addictive (FF 1116-82; 1194-98);

RJR and B&W manipulated nicotine levels to create and sustain addiction (FF 1396-99; 1425-72; 1496-503; 1535-52) but denied doing so (FF 1707, 1712-20); see also FF 1717 (claiming additional nicotine levels in Barclay cigarettes used “for its taste”) FF 1544 (citing “studies done to raise the nicotine delivery of Pall Mall and Lucky Strike cigarettes and to raise nicotine delivery in low tar cigarettes”);

RJR and B&W falsely marketed Low Tar/Light cigarettes as less harmful (FF 2369-72; 2484-556), while knowing otherwise (FF 2159-67; 2201-11; 2262-79);

RJR and B&W recognized the dangers of second-hand smoke (FF 3408-11; 3418), but denied that smoking is hazardous to nonsmokers (FF 3432; 3435-828; 3830; 3859-62).
In furtherance of this fraud, RJR and B&W sold billions of cigarettes, promoting their many brands, which have included RJR brands such as Camel and Salem, and B&W brands such as Kool, Pall Mall, and Viceroy. Among the Court’s many findings associated with the marketing and sale of these specific RJR and B&W brands are:
RJR representing that the “physical condition of athletes would not be impaired by the smoking of as many Camel cigarettes as desired,” and that “the smoking of Camel cigarettes was soothing, restful, and comforting to the nerves, and protected one against becoming ‘jittery’ or ‘unsure’ when subjected to intense nerve strain.” FF 2029 (citations omitted).

6

A study reflecting that a Camel Light marketing campaign “stressed that Camel Lights provided a product to individuals who wanted to smoke a low tar cigarette, but did not want to compromise on ‘rich taste and smoking satisfaction.’ The message itself was ‘a specific low tar message.’” FF 2265 (citations omitted).

The 2010 Surgeon General Report explaining that: “The role of advertising is perhaps best epitomized by [RJR] Camel brand campaign (initiated in 1988) using the cartoon character ‘Joe Camel.’ Considerable research has demonstrated the appeal of this character to young people and the influence that the advertising campaign had on minors’ understanding of tobacco use and on their decision to smoke.” FF 2657.

B&W’s “B Kool” campaign designed to “re-position Kool as a brand for so-called ‘young adult smokers’ when market research showed that Kool received low ratings for ‘leading brand,’ ‘kept up with times,’ and ‘for a younger adult.’” FF 2838.

B&W’s Kool Mix campaign aimed at African-American youth. FF 2950-2952, 3133, 4063; see also, e.g., Navid Hafez & Pamela M. Ling, Finding the Kool Mixx: how Brown & Williamson used music marketing to sell cigarettes, Tobacco Control, Oct. 2006, at 359 (finding that “[t]he 2004 ‘Kool Mixx’ campaign both returned to Brown & Williamson’s historic practice targeting young African‐American males and also exploited a musical genre with much more potential to bring Kool more universal appeal, as hip‐hop music is increasingly popular among diverse audiences”).

B&Ws marketing of Pall Mall as providing “a new milder taste.” FF 2383.

B&W marketing of the Viceroy brand by “touting its Estron filter and proclaiming that Viceroy gives you ‘double filtering action.’’’ FF 1784.

7

RJR’s Acquisition of B&W

In 2004, RJR and B&W engaged in a complex corporate restructuring effort, creating a new parent corporation – Reynolds American, Inc. – and ultimately absorbing the sale and marketing of B&W cigarette brands into RJR. See RJR Br. at 6; see also Affirmance Opinion, 566 F.3d at 1135. A company called “Brown and Williamson Holdings Company” (“BWH”) continues to exist, but does not sell or market B&W brands. Id. (discussing BWH as a “passive holding company”).
As a result of the merger, RJR now markets and sells the former B&W brands, including, e.g., Pall Mall. As the company explains on its websites:
Reynolds Tobacco’s Pall Mall brand is the largest-selling value cigarette brand in the U.S., and the third best-selling brand overall, driven by the brand’s successful evolutions over more than a century of history.

See www.reynoldsamerican.com/… (under

“cigarettes” tab) (emphasis added) (last visited March 28, 2016).

The district court made extensive findings that consumers are loyal to the cigarette brands to which they become addicted. E.g. FF 2637 (“[S]mokers are remarkably brand-loyal”); see also, e.g., FF 2637-40, 2642, 2772, 2875, 2674 (quoting RJR document stating that “[t]he majority of younger adult smokers will stay loyal to their first brand choice.”); FF 2646 (according to the then “CEO of BATIC (a former parent of B&W Tobacco and holding entity for B&W Tobacco),”

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“there tends to be a great deal of loyalty in cigarette brands. So, just a natural mathematical equation would suggest if you – if you don’t have thirty-year-olds smoking your product, you won’t have forty year-olds and fifty-year-olds. It’s a very brand loyal business.”). Accordingly, by acquiring the B&W cigarette brands, RJR acquired B&W’s addicted smokers and all the other benefits of B&W’s deceptive marketing and promotion of brands now sold by RJR.
RJR also largely acquired B&W’s personnel. As the district court found, after the acquisition RJR’s “senior management team” included “many senior managers from B&W,” including Susan Ivey, Chairman of RJR and former B&W CEO, and Brendan Dawson, Senior Vice-President of RJR and former B&W
vice-president. FF 4082.

Finally, and critically for purposes of this appeal, RJR also expressly acquired B&W’s legal liabilities. Thus, as stated in RJR’s Securities and Exchange Commission filings, upon the merger RJR:
agreed to indemnify B&W and its affiliates for, among other things, all liabilities arising before or after the closing that relate to B&W’s U.S. cigarette and tobacco business. These liabilities include B&W’s historic and

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future tobacco-related litigation liabilities and all liabilities under the MSA and other state settlement agreements.

RJR 2004 10Q, at 6 (Nov. 5, 2004) (cited in RJR Br. at 6) (emphasis added).2

RJR’s Efforts To Escape Its Obligation To Run Television Advertisements As The Corporate Successor To B&W

In 2005, during post-trial briefing and before the district court rendered its decision, RJR and B&W argued that, in light of the merger, the district court must rule in favor of B&W. Post-Trial Br. of Joint Defs.’ at 144, Sept. 7, 2005 (ECF No. 5659) (JA016). As they argued, “Brown & Williamson – which no longer exists as an entity that manufactures and sells cigarettes [ ] – poses no risk of future RICO violations and should have judgment entered in its favor . . . .” Id. (emphasis added). Other defendants – most notably, the Tobacco Institute and the Center for Tobacco Research – made similar arguments. Id. at 143 (JA015).
In its 2006 decision, the district court found RJR, B&W, and other defendants had engaged in fraud that was likely to continue. 449 F. Supp. 2d at 908-33. On the other hand, the court agreed that the Tobacco Institute and Center for Tobacco Research – which no longer existed and, in contrast to B&W, had no successors in interest – were not likely to commit further legal violations. Id. at 917-18. In light

Available at www.sec.gov/Archives/edga… 10vq.htm (last visited March 28, 2016).

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of its findings regarding RJR and B&W, the court entered judgment against both companies and set forth specific remedies, including measures to be carried out by B&W – remedies that RJR does not dispute ran automatically to it as the successor company to B&W.
The 2006 Remedial Order principally (a) enjoined Defendants from further RICO violations; (b) mandated corrective statements; (c) required certain transparency-enhancing remedies; and (d) prohibited brand descriptors that convey a misleading health message. Id. at 938-44. Certain parts of the Remedial Order identify specific Defendants, including “B&W.” E.g., id. at 940 (directing B&W to run a separate newspaper ad). Other portions direct that “all” or “each” Defendant, including B&W, take – or refrain from taking – certain actions. E.g., id. at 938 (enjoining “All Defendants” from further racketeering, and requiring “[e]ach Defendant” to make corrective statements). Finally, to protect against efforts to avoid the court’s remedies, the district court prohibited Defendants from selling or transferring any of their cigarette brands or brand names, unless the acquirer either is
(a) already a defendant in the case, or (b) agrees to carry out all the obligations in the Court’s Remedial Order. Id. at 945.3

Thus, for example, when ITG Brands LLC acquired certain cigarette brands in 2015, including, e.g. the Salem brand, under this provision the company agreed to carry out the obligations of the Remedial Order with respect to those brands,

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RJR and other Defendants appealed the district court’s merits ruling on numerous grounds. Affirmance Opinion, 566 F.3d 1095. Several Defendants – including, e.g., Altria and Brown and Williamson Holdings – argued on appeal that the district court erred in finding them likely to commit future legal violations because they do not sell cigarettes. Id. at 1134-35. As to Altria, the Court found that Altria’s control over Philip Morris USA, Inc. supports the Court’s jurisdiction to impose remedies on that company. Id. As regards Brown and Williamson Holdings, the Court found that, although the company “could not have participated in this RICO enterprise as it did not then exist,” it could nonetheless be enjoined from misconduct “if it exercises plenary control over the tobacco operations of its subsidiaries,” and remanded for further fact-finding. Id.
Defendants also challenged numerous specific remedies, including the corrective statements remedy, id. at 1138-45, and even challenged one of the specific corrective statements venues – the point-of-sale remedy. Id. at 1141-42.
However, during the appeal RJR elected not to raise any concerns about whether it was appropriate for the Court to identify certain obligations of “B&W,” obligations running to RJR as B&W’s successor. E.g., 449 F. Supp. 2d at 940. This Court

including the corrective statements remedy. See Order #56-Remand (Docket No. 6151, June 8, 2015).

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upheld the corrective statements remedy, including their dissemination on television. Affirmance Opinion, 566 F.3d at 1138-44.
As the district court has observed, since the Affirmance Opinion, “Defendants have presented a litany of other arguments for clarifying, limiting, reformulating, or entirely vacating this Court’s factual findings and Remedial Order.” United States
v. Philip Morris USA, Inc., 793 F. Supp. 2d 164, 167 (D.D.C. 2011). These efforts have all been rejected, and, in November 2012, the district court determined the precise wording of the corrective statements, United States v. Philip Morris USA, Inc., 907 F. Supp. 2d 1 (D.D.C. 2012), after which the parties negotiated a Consent Order governing the manner in which the statements will appear in newspapers and on television, as well as on Defendants’ websites and cigarette packs.4
As required by the 2006 Remedial Order, the Consent Order provides for five

separate days of newspaper advertisements, one of which the district court had specifically assigned to “B&W.” 2006 Remedial Order at 8 (JA024).5 It also

This Court subsequently directed that the district court remove the words “deliberately deceived” from each of the corrective statements, Corrective Statements Opinion, 801 F.3d 250, and last month the district court issued slightly revised corrective statements language, directing the parties to negotiate any changes in implementation needed in light of the new wording. United States v. Philip Morris USA, Inc., No. 99-2496 (GK), 2016 WL 509279 (D.D.C. Feb. 8, 2016).

Although the Order had also called for a separate day of advertisements by

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provides that RJR will run corrective statement onserts on all the cigarette brands formerly owned by B&W, including, e.g., Pall Mall. See RJR Br. at 31 (recognizing that RJR “is required to place corrective-statement onserts on packages of the cigarette brands it acquired from B&W Tobacco . . . .”).6
However, despite having failed to pursue the issue in the earlier appeal, in the

Consent Order RJR included a statement that it was not “waiv[ing] its challenge to the requirement that it publish corrective statements on television in its capacity as successor to Brown and Williamson Tobacco Co.” Consent Order at 22 (JA072). At the same time, Plaintiffs, including both the United States and the Public Health Intervenors, stated that the Order did not waive “any response Plaintiffs may present to such a challenge,” id., including that any such challenge had in fact been waived. The company subsequently filed the motion at issue in this appeal, asking the district court to relieve it only of the additional television advertisement obligation, but not to relieve it of the obligation to make corrective statements in any other required

BATCo, id. at 7 (JA023), that company was subsequently dismissed from the suit.
United States v. Philip Morris USA, Inc., 783 F. Supp. 2d 23 (D.D.C. 2012).

Similarly, to the extent RJR operates websites promoting the sale of former B&W brands, the corrective statements will appear there as well. See Consent Order at 2 (JA 052) (defining “Covered Websites”).

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forum in its capacity as the successor to B&W. RJR Mot. (Dckt. No. 6103, June 11, 2014).
The district court denied that motion. Order #55-Remand (Dckt. No. 6147, May 28, 2015) (JA098). As the court explained, when it “imposed its post-trial injunctive remedies in 2006, they applied to RJR in its own right, and to RJR in its capacity as successor to B&W Tobacco’s interests.” Id. (emphasis added).
Indeed, RJR does not contest this point, acknowledging that, by its terms, the Remedial Order’s references to obligations of B&W apply to RJR.
Accordingly, the district court found RJR ineligible for relief, because (a) the issue was waived after not being pursued in the original appeal; (b) the court had jurisdiction to issue the 2006 Remedial Order; and (c) there is no other basis to consider RJR’ request “at this late date.” Order # 55-Remand at 3 (JA098-102).
SUMMARY OF ARGUMENT

It is far too late for RJR to seek relief from its obligations under the 2006 Remedial Order, including its responsibility to run a set of television advertisements as the corporate successor to B&W. Its arguments that the district court lacks the authority to direct remedies at B&W, to be carried out by RJR, are waived, and its claim that district court must separately justify each component of

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the corrective statements remedy has already been rejected by this Court, and may not be re-litigated here.
The district court did not abuse its discretion in denying RJR’s effort to weaken the corrective statements remedy. The court appropriately found that RJR is not entitled to relief under any prong of Rule 60(b), and RJR provides no basis for this Court to second guess that ruling.
ARGUMENT

RJR MAY NOT NOW CHALLENGE THE ORDER TO RUN TELEVISION ADVERTISEMENTS.

As this Court explained in the Corrective Statements Opinion, the law of the case doctrine provides that “court[s] involved in later phases of a lawsuit should not re-open questions decided” in earlier rounds. 801 F.3d at 257 (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)). Rather, “‘[w]hen there are multiple appeals taken in the course of a single piece of litigation . . . decisions rendered on the first appeal should not be revisited on later trips to the appellate court.’” Id. (emphasis added). Moreover, as the Court further explained, waiver – “sometimes understood as an application of law-of-the-case doctrine” – also precludes the re-litigation of “prior rulings of the trial court that could have been but were not challenged on an earlier appeal.” Id. (first emphasis in original; second emphasis added); see also Laffey v. Northwest Airlines, Inc., 740 F.2d 1071,
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1089 (D.C. Cir. 1984) (“a party waives a contention that could have been but was not raised on a prior appeal.”); United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009)) (“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.’”); Palmer v. Kelly, 17 F.3d 1490, 1495-96 (D.C. Cir. 1994).
In light of these legal principles, there is no basis for this Court to consider RJR’s latest bid to diminish the scope of the corrective statements remedy, for two reasons. First, although in 2005 RJR urged the district court to enter judgment for B&W, the court instead found B&W liable under RICO and ordered the company to undertake certain remedies – including corrective statements. RJR failed to appeal that ruling in the original appeal. It may not do so now.
Second, in the last appeal in this case this Court rejected the argument by RJR and the other Defendants that requiring corrective statements in multiple venues would not prevent and restrain further fraud. Corrective Statements Opinion, 801 F.3d at 263. Accordingly, RJR may not again obtain review over the appropriate

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scope of the corrective statements remedy, including its obligations to run the number of television advertisements required by the district court’s remedial Order.7
RJR Has Waived Its Arguments Concerning The Scope Of Its Obligations As Corporate Successor To B&W.

RJR Was Required To Pursue This Issue In The First
Appeal From The 2006 Remedial Order.

Before making a final decision in this case, the district court afforded the parties an opportunity to present post-trial briefs. As RJR frankly acknowledges, RJR Br. at 35, in the post-trial brief RJR argued that because it had merged with B&W there was no basis to find B&W liable or to order remedies against that company. Post-Trial Br. of Joint Defs.’ at 144, Sept. 7, 2005 (ECF No. 5659) (JA016) (arguing that because “Brown & Williamson . . . no longer exists as an entity that manufactures and sells cigarettes, the company “should have judgment entered in its favor . . . .”).

It is also not evident that this Court has jurisdiction over this appeal under 28
U.S.C. § 1292(a). In the Marketing Data Opinion, this Court ruled that there is no interlocutory review over an Order that does not change the “legal relationship of the parties to the decree.” 686 F.3d at 844-45 (citations omitted) (finding Court had no jurisdiction to consider appeal of marketing data disclosure remedy). Here, the Order on appeal did not change the relationship of the parties, since all parties agree that the 2006 Remedial Order on its face requires RJR to run a television advertisement as the successor to B&W, which is the reason it has sought relief from that Order.

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However, the district court saw things differently, entering judgment against B&W as one of the Defendants in the case, and requiring B&W to take and refrain from certain actions in order to prevent and restrain further fraud. 449 F. Supp. 2d at 908-33. Indeed, in several places the Remedial Order specifically directs “B&W” to take certain actions. See, e.g. Remedial Order at 8 (JA024) (directing B&W to run a separate newspaper ad). Other portions of the Order directed that “all” or “each” Defendant, including B&W, take – or refrain from taking – certain actions. This included the requirement for “[e]ach Defendant” to run a separate set of television advertisements. Id. at 9 (JA025).
Despite the fact that the district court had rejected RJR’s argument to enter judgment in favor of B&W, the company ignored this issue on appeal. Affirmance Opinion, 566 F.3d 1095. Thus, while certain Defendants, including Brown and Williamson Holdings, claimed that they should be excused from the Remedial Order, no argument was presented concerning the relief afforded against RJR as the corporate successor to B&W.
Accordingly, having foregone the original opportunity to pursue this issue, RJR has waived any argument that it may not be required to run two sets of television advertisements – one for RJR and another for B&W – and may not pursue the issue now. Thomas, 572 F.3d at 949.

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RJR’s Arguments That It Could Not Have Raised This Issue Prior To This Appeal Are Meritless.

The company’s herculean effort to demonstrate that it raised this issue “at the earliest possible opportunity,” RJR Br. at 35, is based on two false premises. First, it claims it pursued this issue “in the merits appeal,” id. at 39, by arguing that “Brown and Williamson Holdings,” a company that “does not engage in the manufacturing, distribution, marketing, or sale of cigarettes,” id. at 12, should not be found liable. Second, it claims “it had no basis to know” it was obligated to run television advertisements as the successor to B&W until 2013. Id. at 40. Neither argument has any merit.
Brown and Williamson Holdings Is Entirely Irrelevant To RJR’s Obligation to Carry Out The Remedial Order In Its Capacity As Successor To B&W.

As regards Brown and Williamson Holdings (“BWH”), there is no dispute that when RJR and its affiliated companies merged with B&W, all of B&W’s marketing, sale and distribution of cigarette brands was absorbed into RJR, not BWH. RJR Br. at 6 (“B&W Tobacco merged all of its domestic tobacco operations with Defendant RJRT”). Thus, RJR acquired B&W’s brands – including, e.g., Pall Mall, and many of its employees. See supra at 9. Moreover, as demonstrated supra at 9-10, in absorbing all of B&W’s tobacco operations, RJR expressly accepted B&W’s tobacco-related liabilities. See RJR 2004 10Q, at 6 (agreeing to
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“indemnify B&W [for] all liabilities arising before or after the closing that relate to B&W’s U.S. cigarette and tobacco business,” including “B&W’s historic and future tobacco-related litigation liabilities . . . .”) (emphasis added). Thus, the fact that, on appeal, a passive holding company that shared the name “Brown and Williamson” contested its obligations under the Remedial Order is simply irrelevant to RJR’s failure to appeal whether it had any obligations under the Remedial Order as the successor in interest to B&W.
This Court’s consideration of similar arguments made by Altria in the Affirmance Opinion is instructive. 566 F.3d at 1134-35. Altria argued that because it is a holding company that does not itself market or sell cigarettes, there was no basis for the district court to impose remedies against the company. Id.
This Court rejected the argument because Altria controls the activities of its subsidiary – Philip Morris USA, Inc. – that does market and sell cigarettes, and otherwise engages in the activities that gave rise to the district court’s findings of liability and remedies. Id.
Similarly, since RJR controls the activities of the employees who formerly worked for B&W, and continues to market and sell the very brands the district court found had been the subject of fraudulent activities by Defendants, the relevant question in the Affirmance Opinion – which RJR did not pursue – was whether RJR

21

could be required to take remedial measures as a consequence of its control of B&W. See supra at 8 (noting RJR marketing of B&W brands based on the “brand’s successful evolutions over more than a century of history”). While the Court’s resolution of Altria’s argument in the Affirmance Opinion demonstrates that RJR would have lost this argument had it been made there, the salient point for present purposes is that by failing to make this argument RJR waived it, and may not present it now.
RJR Has Always Understood Its Obligations To Carry Out The Remedial Provisions Directed At B&W.

RJR’s separate argument that it “had no basis to know,” RJR Br. at 40, it was required to run a set of television advertisements as the successor to B&W until 2013 is demonstrably incorrect. Indeed, the argument is flatly inconsistent with the company’s understanding regarding former B&W brand onserts, websites, and the newspaper advertisements, as to which RJR concedes its obligations to make corrective statements as the successor to B&W. See RJR Br. at 31 (recognizing the district court properly imposed “remedial obligations on RJRT with respect to B&W Tobacco-legacy brands that RJRT manufactures, markets, and distributes” ); see also, e.g. 2014 Consent Order, Exhibit A (listing www.pallmallusa.com, a former
B&W brand, as a “Covered Website” for corrective statements) (Dckt. No. 6082-3 (Apr. 22, 2014); RJR Public Documents Repository (“This website also contains
22

documents produced from the files of the entity formerly known as Brown & Williamson Tobacco Corporation (referred to here as Brown & Williamson)”).8
The entire corrective statements remedy is directed at “Each Defendant.” 2006 Remedial Order at 4 (JA020). Therefore, if RJR did not believe those terms referred to RJR both in its own capacity and as successor to B&W, the company would have had no reason to expect that it would have to carry out any of the corrective statements remedy as the successor to B&W. In sum, since RJR has no coherent explanation for why it always has understood the reference to “each defendant” throughout the Remedial Order to include RJR separately and as the successor-in-interest to B&W everywhere except in the one place the Order specifically discusses the corrective statements on television, it is evident that the
company always understood this obligation, and therefore waived the issue by not raising it earlier.9

Available at www.rjrtdocs.com/rjrtdocs… (last visited Mar. 28, 2016).
It is also irrelevant that the onsert, newspaper, and website obligations were reiterated in the 2014 Consent Order. See, e.g., Consent Order at 4-8 (JA054-058) (providing for Defendants to collectively run newspaper advertisements on five separate Sundays). For purposes of waiver, the key question is what the 2006 Remedial Order required, and what RJR did, and did not, appeal at that time.

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RJR May Not Re-Litigate Whether Each Corrective Statement Must Independently Prevent And Restrain Further Fraud.

RJR also may not re-argue the lawfulness of the required television advertisements at issue in this appeal on the grounds that they do not separately prevent and restrain further RICO violations. RJR Br. at 20-25. Defendants, including RJR, made this argument in the last appeal, asserting that there is no basis for the district court to require corrective statements in multiple media because duplicative dissemination of the statements will not independently prevent and restrain further fraud. See Def’s Br. in United States v. Philip Morris USA, Inc., No. 13-5028 at 47 (D.C. Cir. Sept. 29, 2014) (insisting that “[b]ecause there is no need for redundant statements in all of the ordered media, as opposed to some subset, the Government cannot shoulder its burden of demonstrating that the myriad combinations of less-restrictive alternatives are insufficient to further its interest in preventing future RICO violations”).
This Court has already rejected that argument. Corrective Statements Opinion, 801 F.3d at 263. Noting that the multiple corrective statements venues and levels of exposure for each were set forth in the 2006 Remedial Order, the Court explained that the original appeal was the juncture at which Defendants should have raised any such arguments. Id. Indeed, the Court noted, Defendants did at that time challenge the corrective statements remedy, and even certain of the corrective
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statements exposure venues. Id.; see also Affirmance Opinion, 566 F.3d at 1138-42 (challenging entire corrective statements remedy as impermissible to prevent and restrain further violations, and separately challenging onsert remedy).
Accordingly, the Court concluded, any additional arguments about the levels of corrective statements exposure were necessarily waived. 801 F.3d at 263 (“The question is thus settled.”). So too here. See also Crocker, 49 F.3d at 739.
In the last appeal, Defendants, including RJR, also claimed that Plaintiffs had bargained away the waiver issue in the 2014 Consent Order, where they had agreed that Defendants “reserved the right to challenge . . . the requirement that the
court-ordered corrective statements appear in the multiple media.” 801 F.3d at 263. The Court also rejected this argument, explaining that such a reservation has no legal bearing on whether arguments have been waived. Id.
Accordingly, while the 2014 Consent Order also provides that the Order does not “waive[ ]” the arguments RJR is making in this appeal, Consent Order at 22 (JA072), that reservation also has no bearing on the fact that the arguments are in fact waived by virtue of RJR having passed up prior opportunities to press this issue at earlier stages of the litigation.10

Indeed, as noted supra at 14, that Consent Order provision also explicitly states that the Consent Order does not “waive[ ] . . . any response Plaintiffs may present” to RJR’s arguments about the television advertisements. Id. The language

25

THE DISTRICT COURT DID NOT ERR IN FINDING THAT RJR IS NOT ENTITLED TO RELIEF UNDER RULE 60(b).

The District Court Did Not Err Under Rule 60(b)(4).

As the United States explains in detail in its brief, RJR’s argument under Rule 60(b)(4) is based on the false premise that the district court somehow lacked jurisdiction to enter its Order against B&W in 2006. U.S. Br. at 16-23. Further, even assuming it were appropriate for RJR to raise this issue for the first time ten years after the district court’s ruling – during the fifth post-judgment appeal in which the company has participated – the argument ignores the legal and practical relationship between RJR and B&W.
RJR’s assertion that it did not “‘inherit’ B&W Tobacco’s remedial obligations,” RJR Br. at 25, is simply false. As discussed, RJR not only inherited B&W’s employees, brands, and addicted consumers, it expressly assumed B&W’s
therefore neither adds nor detracts from the rights RJR otherwise has to present these arguments at this late juncture.

The Court should also not be distracted by RJR’s bald – and entirely erroneous – claim that the district court has ordered defendants to “flood[ ] the airwaves” with corrective statements. RJR Br. at 25. As even the most casual observer of network television knows, an advertisement often plays multiple times during the same show or evening, and on multiple channels. Here, where RJR will be running only a single advertisement per week as B&W’s corporate successor, it can hardly be said to be flooding the airwaves. Moreover, even collectively, the five television advertisements that will run each week amount to less than one advertisement on one station per day.

26

“liabilities arising before or after the closing that relate to B&W’s U.S. cigarette and tobacco business, including “B&W’s historic and future tobacco-related litigation liabilities . . . .” See supra at 9-10 (emphasis added).11
Accordingly, the district court plainly had jurisdiction to order RJR to carry out remedies as the corporate successor to B&W. Indeed, as noted, B&W separately engaged in multiple activities in furtherance of defendants’ fraudulent scheme, and to promote its brands – including, e.g., Pall Mall, now owned and marketed by RJR. See supra at 7. Given this misconduct, which the district court found likely to continue, combined with RJR’s express assumption of B&Ws “historic and future” liabilities, the district court plainly had the authority to impose remedies on RJR both in its own capacity and separately as the successor to B&W.

RJR claims that it “would defy the laws of time” to posit that its merger with B&W somehow made it responsible for legal liabilities B&W did not incur until after the merger. RJR Br. at 29. This notion is not only impossible to reconcile with the company’s express assumption of B&W’s “historic and future
tobacco-related liabilities,” it would also mean RJR could not be held responsible for any other legal violations B&W may have committed – from the most mundane breach of contract claim to a products liability case – since B&W did not yet have an “obligation” to redress such violations at the time of the merger. This simply makes no sense. See, e.g. LeSane v. Hillenbrand Indus., Inc. v. Midmark Corp., 791 F. Supp. 871, 874-75 (D.D.C. 1992) (successor corporation liable for acquired corporate liabilities where there is “an express or implied agreement to assume the liabilities”); cf. Holland v. Williams Mountain Coal Co., 256 F.3d 819, 824 (D.C. Cir. 2001).

27

RJR’s effort to compare itself to the British company BATCo, which was dismissed from the case, RJR Br. at 24, also has no merit. The district court dismissed BATCo on the grounds that it did not engage in activities in the United States. 783 F. Supp. 2d 23. Here, by contrast, RJR not only continues its own United States operations, but has added to those operations the sale and marketing of B&W brands that gave rise to the district court’s findings of liability and relief against B&W.
RJR’s argument is also particularly difficult to square with its recognition that the district court may “impose remedial obligations on RJRT with respect to B&W Tobacco-legacy brands that RJRT manufactures, markets, and distributes.” RJR Br. at 31. That is precisely the remedial obligation at issue here – the remedial obligations that the 2006 Remedial Order directs at B&W, which now automatically run to RJR. In short, if RJR must put corrective statements on other media in its capacity as successor to B&W, including on former B&W brand cigarette packs (as RJR recognizes), it must necessarily run a set of television advertisements in this capacity as well.
Moreover, as the United States explains, this simply is not a jurisdictional issue, as RJR does not dispute the district court’s jurisdiction to impose remedies on it. U.S. Br. at 16-23. Indeed, the one case RJR discusses, RJR Br. at 19 (citing

28

Securities and Exchange Comm’n v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 2008)), does not support its position, for there the statute did not allow for the specific remedy the court had imposed, under any factual circumstances, and it was on that basis that the court concluded it had no jurisdiction to impose that remedy. 550 F. Supp. 2d at 63.
Here, by contrast, RJR does not dispute the district court’s authority to require it to run television advertisements – indeed, it recognizes it must do so in its own capacity. Rather, RJR simply claims that, under the facts of this case, the district court erred in requiring RJR to also run advertisements as B&W’s corporate successor. That is not a jurisdictional issue under Rule 60(b)(4).12

Moreover, because this is a factual rather than legal issue, RJR also errs in claiming that the district court’s ruling should be reviewed de novo, RJR Br. at 16, rather than for abuse of discretion. Cf. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748-99 (2014) (applying abuse of discretion to a largely factual matter in a case before the trial court “over a prolonged period of time”). That issue aside, even if this were a strictly legal issue, that would not eliminate RJR’s waiver of the issue by not pursuing it in the earlier appeal. See, e.g., Bell Helicopter Textron Inc. v. Iran, 892 F. Supp. 2d 219, 225 (D.D.C. 2012) (noting that the “threshold issue this Court must resolve is whether the jurisdictional question in this case has been fully and fairly litigated”).

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The District Court Was Well Within Its Broad Remedial Discretion In Concluding That No Other Rule 60(b) Relief Was Warranted.

The district court also did not abuse its discretion in refusing to relieve RJR of the set of television advertisements at issue here on the grounds that they will not “prevent and restrain” RJR. RJR Br. at 33-34. Aside from the fact that this argument has long since been waived, see supra at 24-25, it ignores the district court’s myriad findings as to the billions of dollars Defendants, including RJR, spend on their marketing efforts. See FF2639 (“In 2002, the last year for which data is available, the tobacco companies spent $12.47 billion” in marketing,
advertising and promotion); see also FTC Cigarette Report for 2011, Table 2C-2E (issued 2013) (showing billions spent per year since 2002).13 Given that Defendants will only be spending a fraction of these amounts on the required corrective statements, including the additional set of television advertisements at issue here, the district court certainly did not abuse its discretion in declining to diminish this remedy. Cf. Novartis Corp. v. FTC, 223 F.3d 783,786 (D.C. Cir.
2000) (affirming continuation of corrective advertising campaign until company

Available at
ftc.gov/sites/default/fil… ette-report-2011/130521cigarettereport.pdf (last visited Mar. 28, 2016).

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“ha[d] expended on Doan’s advertising a sum equal to the average spent annually during the eight years of the challenged campaign”).
RJR’s related argument that the district court abused its discretion by requiring RJR to run more television advertisements than the other companies also must fail. RJR Br. at 34 (arguing “it would be ‘unjust’ to impose a double obligation on RJRT and RJRT alone”). In fact, RJR will be running three sets of television advertisements, because, in merging with Lorillard, RJR also agreed to assume that company’s corrective statements obligations, including the obligation to disseminate the televisions advertisements. See Notice of Transaction (Dckt. No. 6141, Apr. 7, 2015) at 7-8 (JA 84-85). At the same time, Altria and Philip Morris USA, Inc. must also each run separate television advertisements, even though they both market and sell the Philip Morris USA brands. See JA058.
Accordingly, RJR’s premise that RICO requires some kind of equivalence in remedy associated with each company is simply mistaken. Rather, because RJR took control over brands manufactured and marketed by B&W for many decades, and obtained the benefit of the millions of addicted smokers B&W obtained through its participation in the RICO enterprise – who remain at risk from further acts of fraud and deceit – the district court was well within its broad remedial discretion in rejecting RJR’s bid to further weaken the court’s remedies, just as the

31

court has properly rejected Defendants’ myriad efforts over the past ten years to eliminate, water down, and otherwise challenge the court’s modest remedies to prevent and restrain further deceptions about the toxicity and addictiveness of cigarettes.14
CONCLUSION

For the foregoing reasons, the Public Health Intervenors respectfully urge the Court to affirm the district court’s ruling.
March 31, 2016 Respectfully submitted,

/s/ Howard M. Crystal Howard M. Crystal Katherine A. Meyer
4115 Wisconsin Ave., N.W. Suite 201
Washington, D.C. 20036
Telephone: (202) 588-5206
Facsimile: (202) 588-5049

Counsel for the Public Health Intervenors

Indeed, had B&W simply become a subsidiary of RJR (like the relationship between Altria and Philip Morris USA, Inc.), there would be no dispute that B&W would be required to run its own set of television advertisements. The outcome here cannot be different simply because the parties structured the transaction so that B&W’s tobacco operations were absorbed into RJR – while maintaining B&W historic brands and many of its employees. See supra at 8-10.

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C)

I hereby certify that the foregoing Brief for the Public Health Intervenors contains 7,404 words. The brief therefore complies with the 8,750 word limit set by this Court’s January 19, 2016 Order.

/s/ Howard M. Crystal
Howard M. Crystal

CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2016, I electronically filed the foregoing Appellee Brief with the Clerk of the D.C. Circuit, by using the CM/ECF system. All participants in this appeal are CM/ECF users, and will be served by the CM/ECF system.
/s/ Howard M. Crystal Howard M. Crystal Counsel for the
Public Health Intervenors

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