6193: JOINT MOTION TO ENTER SUPERSEDING CONSENT ORDER IMPLEMENTING CORRECTIVE STATEMENTS, Apr 8, 2016

April 8, 2016 7:40 pm by Gene Borio

The PDF is Here

EXCERPT:

On remand from the D.C. Circuit’s decision in United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015), this Court issued revised text of the Corrective Statements in the memorandum opinion accompanying Order #62-Remand. At the same time, this Court required that the parties “determine what minor changes are needed to implement the Consent Order.” Order #62-Remand at 1. The parties spent the last two months discussing, with the Special Master’s assistance, those minor implementation changes. The parties’ discussions culminated in a (Proposed) Superseding Consent Order, which combines into one document the Court’s revised text and the changed implementation obligations of Defendants (superseding Order #51-Remand (Dkt. No. 6095)) and Remedies Parties (partially superseding Order#56-Remand (Dkt. No. 6151)).

The (Proposed) Superseding Consent Order generally tracks the essential compromises and negotiated trade-offs by all parties that led to the Consent Order in Order #51-Remand….The minor modifications to the Consent Order (i) incorporate the revised text across all executions (newspapers, television, websites, and onserts); (ii) revise font sizes in online newspaper placements and onserts to account for the shorter preambles; (iii) update the language that must appear on the home pages and full-text pages of Covered Websites and social media; (iv) make minor changes as necessary to incorporate the Remedies Parties into the Consent Order and also modify the sequence of Defendants’ names on ITG Brands’ websites and onserts;1 (v) update cross-references; and (vi) make definitional and formatting edits for clarity.

1 Order #56-Remand required Altria and Philip Morris USA to be listed first and second on ITG Brands websites, social media, and onserts. The parties have agreed that the previous maker of the pertinent ITG brand (whether Lorillard or R.J. Reynolds) will appear last, and the other entity from which ITG acquired a brand or brands (either R.J. Reynolds or Lorillard) will appear first.

2 As the Court will see, the redline shows many additions and deletions from Order #51-Remand, but most of them simply reflect the Court’s new wording and the addition of the Remedies Parties.

3 Rather than re-creating website mock-ups for Defendants, the parties agreed to refer to the website mock-ups filed as Exhibit F to the Joint Praecipe Regarding Issues Raised at the January 22, 2014 Status Conference, but to use the specific words for the revised Corrective Statements.

The parties attach to this motion:

• a redline comparing the (Proposed) Superseding Consent Order to the prior Consent Order in Order #51-Remand (Exhibit 8);2

• the (Proposed) Superseding Consent Order (Exhibit 9);

• Spanish language translations of the revised Corrective Statements (Exhibits 1-2); and

• mock-ups showing the way the revised Corrective Statements will appear on ITG Brands’ company websites3 and in print newspapers, online newspapers, television, and onserts (Exhibits 3-7).

As with the prior Consent Order, the parties believe that the mock-ups contained in the (Proposed) Superseding Consent Order effectively implement the revised Corrective Statements. Accordingly, the parties respectfully request that the Court approve the Superseding Consent Order and accompanying mock-ups without modification.

END EXCERPT

FULL TEXT:

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS

ACTION FUND, et al.

Plaintiff-Intervenors

v.

PHILIP MORRIS USA INC., et al.,

Defendants,

and

ITG BRANDS, LLC, et al.,

Post-Judgment Parties Regarding Remedies.

Civil Action No. 99-CV-2496 (GK)

Next scheduled court appearance: None scheduled

____________________________________)

JOINT MOTION TO ENTER SUPERSEDING CONSENT ORDER IMPLEMENTING CORRECTIVE STATEMENTS

Pursuant to Order #62-Remand (Dkt. No. 6184), the United States and Public Health Intervenors (collectively “Plaintiffs”); Philip Morris USA Inc., Altria Group, Inc., and R.J. Reynolds Tobacco Company (individually, as successor in interest to Brown & Williamson Tobacco Corporation and American Tobacco Co, and as successor to Lorillard Tobacco Company) (collectively “Defendants”); and ITG Brands, LLC, Commonwealth Brands, Inc., and Commonwealth-Altadis, Inc. (collectively “Remedies Parties”) respectfully submit this joint motion in support of their (Proposed) Superseding Consent Order Implementing Corrective Statements Remedy.

On remand from the D.C. Circuit’s decision in United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015), this Court issued revised text of the Corrective Statements in the memorandum opinion accompanying Order #62-Remand. At the same time, this Court required that the parties “determine what minor changes are needed to implement the Consent Order.” Order #62-Remand at 1. The parties spent the last two months discussing, with the Special Master’s assistance, those minor implementation changes. The parties’ discussions culminated in a (Proposed) Superseding Consent Order, which combines into one document the Court’s revised text and the changed implementation obligations of Defendants (superseding Order #51-Remand (Dkt. No. 6095)) and Remedies Parties (partially superseding Order#56-Remand (Dkt. No. 6151)).

The (Proposed) Superseding Consent Order generally tracks the essential compromises and negotiated trade-offs by all parties that led to the Consent Order in Order #51-Remand. See generally Joint Praecipe Regarding Issues Raised at the January 22, 2014 Status Conference and Revised (Proposed) Consent Order (Dkt. No. 6081; filed Apr. 22, 2014) (describing compromises and negotiation process). The minor modifications to the Consent Order (i) incorporate the revised text across all executions (newspapers, television, websites, and onserts); (ii) revise font sizes in online newspaper placements and onserts to account for the shorter preambles; (iii) update the language that must appear on the home pages and full-text pages of Covered Websites and social media; (iv) make minor changes as necessary to incorporate the Remedies Parties into the Consent Order and also modify the sequence of Defendants’ names on ITG Brands’ websites and onserts;1 (v) update cross-references; and (vi) make definitional and formatting edits for clarity.

1 Order #56-Remand required Altria and Philip Morris USA to be listed first and second on ITG Brands websites, social media, and onserts. The parties have agreed that the previous maker of the pertinent ITG brand (whether Lorillard or R.J. Reynolds) will appear last, and the other

entity from which ITG acquired a brand or brands (either R.J. Reynolds or Lorillard) will appear first.

2 As the Court will see, the redline shows many additions and deletions from Order #51-Remand, but most of them simply reflect the Court’s new wording and the addition of the Remedies Parties.

3 Rather than re-creating website mock-ups for Defendants, the parties agreed to refer to the website mock-ups filed as Exhibit F to the Joint Praecipe Regarding Issues Raised at the January 22, 2014 Status Conference, but to use the specific words for the revised Corrective Statements.

The parties attach to this motion:

• a redline comparing the (Proposed) Superseding Consent Order to the prior Consent Order in Order #51-Remand (Exhibit 8);2

• the (Proposed) Superseding Consent Order (Exhibit 9);

• Spanish language translations of the revised Corrective Statements (Exhibits 1-2); and

• mock-ups showing the way the revised Corrective Statements will appear on ITG Brands’ company websites3 and in print newspapers, online newspapers, television, and onserts (Exhibits 3-7).

As with the prior Consent Order, the parties believe that the mock-ups contained in the (Proposed) Superseding Consent Order effectively implement the revised Corrective Statements. Accordingly, the parties respectfully request that the Court approve the Superseding Consent Order and accompanying mock-ups without modification.

Dated: April 8, 2016 Respectfully submitted,

___/s/_____________________________

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

JONATHAN F. OLIN

Deputy Assistant Attorney General

MICHAEL BLUME, Director

ANDREW CLARK, Assistant Director

Consumer Protection Branch

Case 1:99-cv-02496-GK Document 6193 Filed 04/08/16 Page 4 of 6

___/s/_____________________________

DANIELK. CRANE-HIRSCHTrial AttorneyCivil DivisionUnited States Department of JusticePO Box 386Washington, DC 20044-0386Telephone: 202-616-8242Facsimile: 202-514-8742

daniel.crane-hirsch@usdoj…

Attorneys for Plaintiff United States ofAmerica

____/s/ _____________

Howard M. Crystal (D.C. BarNo. 446189)

KatherineA. Meyer (D.C. Bar 244301)

MEYER GLITZENSTEIN & EUBANKS

LLC4115 Wisconsin Ave., N.W. Suite 210Washington, DC 20016202-588-5206

hcrystal@meyerglitz.com

Attorneys for the Public HealthPlaintiff-Intervenors

____/s/ _________________

Anand AgneshwarARNOLD & PORTERLLP399 Park AvenueNew York, NY10022-4690Telephone: (212) 715-1107Fax: (212)715-1399

MiguelA. Estrada (D.C. Bar No. 456289)

GIBSON, DUNN &CRUTCHER LLP1050 ConnecticutAvenue, N.W. Washington, D.C. 20036-5306Telephone: (202) 955-8257Fax: (202) 530-9016

Attorneys for DefendantsAltria Group, Inc. and Philip Morris USA

4

Inc.

____/s/________________________

Noel J. Francisco (D.C. Bar No. 464752)

Peter J. Biersteker (D.C. Bar No. 358108)

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

Fax: (202) 626-1700

Geoffrey K. Beach

R. Michael Leonard

WOMBLE CARLYLE SANDRIDGE &

RICE, PLLC

One West Fourth Street

Winston-Salem, NC 27101

Telephone: (336) 721-3721

Fax: (336) 733-8389

Jeffrey A. Mandell (D.C. Bar No. 999791)

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Madison, WI 53703

Telephone: (608) 256-0226

Fax: (608) 259-2600

Attorneys for Defendant

R.J. Reynolds Tobacco Company

(individually and as successor by merger to

Brown & Williamson Tobacco Corporation and as successor to Lorillard Tobacco Company)

____/s/_________________

Robert J. Brookhiser, Jr. (D.C. Bar No.
202168)

Elizabeth B. McCallum (D.C. Bar No.
451361)

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5304

Telephone: (202) 861-1500

Fax: (202) 861-1783

Attorneys for Post-Judgment Parties Regarding Remedies ITG Brands, LLC; Commonwealth Brands, Inc. and Commonwealth-Altadis, Inc.

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