USA v. MO APPEAL: APPELLANT’S REPLY BRIEF, Apr 14, 2016

April 14, 2016 4:43 pm by Gene Borio

The PDF is Here

EXCERPT:

I. RJRT is entitled to relief under Federal Rule of Civil Procedure 60(b)(4).

The district court lacked jurisdiction to require B&W Tobacco to publish corrective statements on television because Section 1964(a) of title 18 limits the court’s jurisdiction to preventing and restraining RICO violations. And ordering a non-existent entity such as B&W Tobacco to publish corrective statements on television or an existent entity such as RJRT to publish such statements twice does not advance that goal. Against this straightforward argument, the Government and Intervenors attempt to restrict Rule 60(b)(4) to orders exceeding subject-matter or personal jurisdiction. But they cite no case for that proposition, and this Court and others have squarely held that “a judgment may be void for purposes of Rule 60(b)(4) if the court, although having jurisdiction over the parties and subject matter, entered a decree not within the powers granted to it by the law.” . . .

The Government and Intervenors also argue that this Court’s clear holdings that Section 1964(a) limits jurisdiction are “driveby” jurisdictional rulings. But this Court’s pages-long analysis of the limits on the district court’s power cannot be cast away, and, in any event, is correct. See Disgorgement Decision, 396 F.3d at 1197-1202. Finally, the Intervenors claim that RJRT’s challenge has been waived by inaction or foreclosed by the terms of its merger with B&W Tobacco. But Defendants raised and prevailed on this issue in their very first merits appeal. In any event, Rule 60(b)(4) contains no time limit and parties may not enlarge federal court jurisdiction through waiver or otherwise.

II. Alternatively, RJRT is entitled to relief under Rule 60(b)(6).

Requiring RJRT to run a second, duplicative set of corrective statements on television is unjust. The Government and Intervenors’ contrary arguments are premised on a fundamental error, namely, that RJRT automatically inherited the television corrective-statements obligation that the district court imposed on “Brown & Williamson.” That position conflicts with this Court’s view in the Remedial Decision that such obligations automatically accrued not to RJRT, but to BWH, which was subsequently dismissed from this case. RJRT did not and could not inherit obligations imposed on “Brown & Williamson” in 2006 by acquiring assets from “B&W Tobacco” in 2004. The LTC merger, moreover, confirms RJRT’s position, because unlike the B&W Tobacco merger, it was subject to the district court’s new requirement, in the remedial order entered after the B&W Tobacco merger, that transfers of assets be accompanied by transfers of obligations. The Government and Intervenors finally urge that RJRT should have appealed this issue before now. But Defendants did. They appealed this issue immediately and prevailed in this Court’s Remedial Decision. It was not until mediation that RJRT learned that the Government and Intervenors viewed that victory as illusory.

END EXCERPT

FULL TEXT:

USCA Case #15-5210 Document #1608854 Filed: 04/14/2016 Page 1 of 40

ORAL ARGUMENT NOT YET SCHEDULED

No. 15-5210

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILIP MORRIS USA INC., et al.,

Defendants-Appellants.

On Appeal from Order of the United States District Court For the District of Columbia

1:99-cv-02496-GK

APPELLANT’S REPLY BRIEF

Noel J. Francisco Geoffrey K. Beach

Peter J. Biersteker WOMBLE CARYLE

JONES DAY SANDRIDGE & RICE LLP

51 Louisiana Avenue, N.W. One West Fourth Street

Washington, DC 20001 Winston-Salem, NC 27101

Telephone: (202) 879-3939 Telephone: (336) 721-3600

Facsimile: (202) 626-1700 Facsimile: (336) 721-3660

Jeffrey A. Mandell Counsel for Appellant

STAFFORD ROSENBAUM LLP R.J. Reynolds Tobacco Company

222 West Washington Avenue (individually and as successor to

Madison, WI 53703 Brown & Williamson Tobacco

Telephone: (608) 256-0226 Corporation)

Facsimile: (608) 259-2600

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TABLE OF CONTENTS

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

GLOSSARY ………………………………………………………………………………………………… 1

INTRODUCTION ……………………………………………………………………………………….. 2

SUMMARY OF ARGUMENT ……………………………………………………………………… 3

ARGUMENT ………………………………………………………………………………………………. 5

I. RJRT Is Entitled To Relief Under Rule 60(b)(4) Because The District Court Lacked Jurisdiction To Require B&W Tobacco To Publish Corrective Statements On Television. ……………………………………………………. 5

A. A provision of an order that exceeds the district court’s jurisdiction is “void” under Rule 60(b)(4). ……………………………………. 7

B. Section 1964(a) limits the district court’s jurisdiction. ………………….. 10

C. Contrary to the Intervenors’ argument, the parties cannot enlarge the district court’s jurisdiction under Section 1964(a). ………. 16

II. Alternatively, RJRT Is Entitled To Relief Under Rule 60(b)(6) Because Requiring RJRT To Run A Second, Redundant Set Of Corrective Statements On Television Is Unjust. ……………………………………. 19

A. The television corrective-statements obligation imposed on “Brown & Williamson” did not automatically accrue to RJRT. …….. 20

B. There is no logical basis for requiring RJRT to run two sets of corrective statements on television. ……………………………………………. 26

C. RJRT could not have appealed before now. …………………………………. 28

CONCLUSION ………………………………………………………………………………………….. 32

CERTIFICATE OF COMPLIANCE …………………………………………………………….. 33

CERTIFICATE OF SERVICE …………………………………………………………………….. 34

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TABLE OF AUTHORITIES

Cases

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) …………………………………………………………………….. 11, 13, 14

* Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175 (D.C. Cir. 2013) ………………………………………………………… 5, 7, 17 Brumfield v. Louisiana State Bd. of Educ., 806 F.3d 289 (5th Cir. 2015) …………………………………………………………… 7, 10, 25

Cassata v. Fed. Sav. & Loan Ins. Corp., 445 F.2d 122 (7th Cir. 1971) ………………………………………………………………………. 8

Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (per curiam) …………………………………………………. 6

Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987) …………………………………………………………………7, 9

Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963) ……………………………………………………………………….. 8

Ford Motor Co. v. Mustangs Unlimited, Inc., 420 F. App’x 522 (6th Cir. 2011) (unpublished) …………………………………………. 30

Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974) ………………………………………………………………………. 8

* Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008) ………………………………………………………… 2, 4, 8, 9 Klapprott v. United States, 335 U.S. 601 (1949) ………………………………………………………………………… 4, 8, 18

Knox v. Lichtenstein, 654 F.2d 19 (8th Cir. 1981) ………………………………………………………………………. 30

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

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LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc) ……………………………………………………. 10

Narragansett Tribe v. Guilbert, 989 F.2d 484 (1st Cir. 1993) (unpublished) ………………………………………………….. 8

Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606 (6th Cir. 2011) ………………………………………………………………………. 8

Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d 227 (D.C. Cir. 2013) ……………………………………………………………. 12, 14

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ………………………………………………………………………………… 17

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380 (1993) ………………………………………………………………………………… 30

Porter v. Warner Holding Co., 328 U.S. 395 (1946) …………………………………………………………………….. 11, 12, 13

Prince v. Stewart, 580 F.3d 571 (7th Cir. 2009) …………………………………………………………………….. 30

Rumsfeld v. Padilla, 542 U.S. 426 (2004) ………………………………………………………………………………… 18

S.E.C. v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 2008) ………………………………………………………… 9, 18 Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110 (D.C. Cir. 2011) ………………………………………………………….. 19, 30

Salazar ex rel. Salazar v. Dist. of Columbia, 671 F.3d 1258 (D.C. Cir. 2012) ………………………………………………………………… 25

Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062 (10th Cir. 1980) …………………………………………………………………. 31

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ………………………………………………………………………. 11, 14, 15

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Stenswick v. Bowen, 815 F.2d 519 (9th Cir. 1987) ………………………………………………………………………. 8

Texas v. United States, 798 F.3d 1108 (D.C. Cir. 2015) ………………………………………………………………… 30

Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs, 558 U.S. 67 (2009) ………………………………………………………………………………….. 11

United States v. Indoor Cultivation Equip. from High Tech Indoor Garden Supply, 55 F.3d 1311 (7th Cir. 1995) ………………………………………………………..4, 8

United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011) ………………………………………………………………….. 13

* United States v. Philip Morris USA Inc., 396 F.3d 1190 (D.C. Cir. 2005) ……………………………. 2, 3, 4, 5, 11, 12, 13, 14, 27
* United States v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009) ………………………….. 3, 4, 6, 12, 14, 18, 20, 21, 29 United States v. Philip Morris USA Inc., 686 F.3d 839 (D.C. Cir. 2012) ………………………………………………………………….. 26

* United States v. Philip Morris USA Inc., 801 F.3d 250 (D.C. Cir. 2015) ……………………………………………… 6, 12, 22, 29, 31 United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) ………………………………………………………………. 22

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) ………………………………………………………………………………….. 7

V.T.A., Inc. v. Airco, Inc., 597 F.2d 220 (10th Cir. 1979) …………………………………………………………………….. 9

Statutes

18 U.S.C. § 1962 ………………………………………………………………………………………… 15 18 U.S.C. § 1963(j) …………………………………………………………………………………….. 15

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* 18 U.S.C. § 1964(a) ……………………………………… 3, 5, 6, 10, 11, 12, 13, 14, 15, 16

18 U.S.C. § 1964(b) ……………………………………………………………………………… 14, 15

28 U.S.C. § 1331 ………………………………………………………………………………….. 11, 14

28 U.S.C. § 1345 ………………………………………………………………………………….. 11, 14

28 U.S.C. § 2201 ………………………………………………………………………………….. 11, 14

Rules

* Fed. R. Civ. P. 60(b)(4) …………………………………… 2, 3, 5, 6, 7, 8, 9, 10, 11, 16, 17

* Fed. R. Civ. P. 60(b)(6) ………………………………………………………. 2, 3, 4, 19, 20, 30

Other Authorities

10 Cyc. of Federal Proc. § 37:16 (3d ed.) ………………………………………………………. 31

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GLOSSARY

B&W Tobacco Brown & Williamson Tobacco Corporation

BATCo British American Tobacco (Investments) Limited

FAA Federal Arbitration Act

BWH Brown & Williamson Holdings, Inc.

LTC Lorillard Tobacco Company

RICO Racketeer Influenced and Corrupt Organizations Act

RJRT R.J. Reynolds Tobacco Company

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INTRODUCTION

In its opening brief, RJRT established that it is entitled to relief under Federal Rule of Civil Procedure 60(b)(4) and (6) from the requirement that B&W Tobacco publish corrective statements on television. It is telling that the Government and Intervenors focus their attention on whether RJRT technically qualifies for relief under Rule 60(b)(4) and (6), and say nothing in defense of the lawfulness of the district court’s requirement. In light of this Court’s clear limitation of the district court’s remedial jurisdiction to preventing and restraining future RICO violations, see United States v. Philip Morris USA Inc., 396 F.3d 1190, 1192 (D.C. Cir. 2005) (“Disgorgement Decision”), there can be no doubt that the district court’s attempt to require B&W Tobacco—a nonexistent entity—to publish corrective statements on television, or RJRT—an entity already so prevented and restrained—to publish such statements twice, exceeds the district court’s remedial jurisdiction and, alternatively, is unjust.

The Government and Intervenors are thus left to defend an unlawful decision on the ground that although RJRT has a right, it has no remedy. Their efforts are unavailing, for this Court and others have authorized Rule 60(b)(4) relief in situations just like this one where a district court exceeded its remedial jurisdiction, Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008), and this Court in this very case has held that the unlawfulness of the district court’s requirement here goes to

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the court’s remedial jurisdiction, Disgorgement Decision, 396 F.3d at 1197-1202. Rule 60(b)(6) relief is similarly available where, as here, Defendants prevailed in their first challenge to the district court’s requirement, see United States v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009) (“Remedial Decision”), and then appealed as soon as it became apparent that this victory had been snatched away.

SUMMARY OF ARGUMENT

I. RJRT is entitled to relief under Federal Rule of Civil Procedure 60(b)(4). The district court lacked jurisdiction to require B&W Tobacco to publish corrective statements on television because Section 1964(a) of title 18 limits the court’s jurisdiction to preventing and restraining RICO violations. And ordering a non-existent entity such as B&W Tobacco to publish corrective statements on television or an existent entity such as RJRT to publish such statements twice does not advance that goal. Against this straightforward argument, the Government and Intervenors attempt to restrict Rule 60(b)(4) to orders exceeding subject-matter or personal jurisdiction. But they cite no case for that proposition, and this Court and others have squarely held that “a judgment may be void for purposes of Rule 60(b)(4) if the court, although having jurisdiction over the parties and subject matter, entered a decree not within the powers granted to it by the law.” United States v. Indoor Cultivation Equip. from High Tech Indoor Garden Supply, 55 F.3d

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1311, 1316 (7th Cir. 1995); see also Karsner, 532 F.3d at 886; Klapprott v. United States, 335 U.S. 601, 609-11 (1949). The Government and Intervenors also argue that this Court’s clear holdings that Section 1964(a) limits jurisdiction are “driveby” jurisdictional rulings. But this Court’s pages-long analysis of the limits on the district court’s power cannot be cast away, and, in any event, is correct. See Disgorgement Decision, 396 F.3d at 1197-1202. Finally, the Intervenors claim that RJRT’s challenge has been waived by inaction or foreclosed by the terms of its merger with B&W Tobacco. But Defendants raised and prevailed on this issue in their very first merits appeal. In any event, Rule 60(b)(4) contains no time limit and parties may not enlarge federal court jurisdiction through waiver or otherwise.

II. Alternatively, RJRT is entitled to relief under Rule 60(b)(6).

Requiring RJRT to run a second, duplicative set of corrective statements on television is unjust. The Government and Intervenors’ contrary arguments are premised on a fundamental error, namely, that RJRT automatically inherited the television corrective-statements obligation that the district court imposed on “Brown & Williamson.” That position conflicts with this Court’s view in the Remedial Decision that such obligations automatically accrued not to RJRT, but to BWH, which was subsequently dismissed from this case. RJRT did not and could not inherit obligations imposed on “Brown & Williamson” in 2006 by acquiring assets from “B&W Tobacco” in 2004. The LTC merger, moreover, confirms 4

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RJRT’s position, because unlike the B&W Tobacco merger, it was subject to the district court’s new requirement, in the remedial order entered after the B&W Tobacco merger, that transfers of assets be accompanied by transfers of obligations. The Government and Intervenors finally urge that RJRT should have appealed this issue before now. But Defendants did. They appealed this issue immediately and prevailed in this Court’s Remedial Decision. It was not until mediation that RJRT learned that the Government and Intervenors viewed that victory as illusory.

ARGUMENT

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

Federal Rule of Civil Procedure 60(b)(4) requires a court to grant relief from a “void” order. An order is “void” under Rule 60(b)(4) “whenever the issuing court lacked jurisdiction.” Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1180 (D.C. Cir. 2013). Section 1964(a) of title 18 “provides the District Courts jurisdiction only for forward-looking remedies that prevent and restrain violations of [RICO].” Disgorgement Decision, 396 F.3d at 1192. Ordering a non-existent entity such as B&W Tobacco to publish corrective statements on television obviously does not “prevent and restrain” RICO violations and, likewise, requiring RJRT to publish corrective statements on television twice

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does not advance the only permissible goal of locking RJRT into the position articulated in those statements. Remedial Decision, 566 F.3d at 1140; United States v. Philip Morris USA Inc., 801 F.3d 250, 257 (D.C. Cir. 2015) (“Corrective Statements Decision”). Accordingly, the district court lacked jurisdiction to require B&W Tobacco to publish corrective statements on television.

The Government and Intervenors notably do not contest that the district court’s order exceeds its statutory authority under Section 1964(a). They thus concede that the district court’s order is unlawful. See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (per curiam). Instead, they make three bold (and incorrect) claims. First, the Government argues that Rule 60(b)(4) pertains only to defects in subject-matter and personal jurisdiction. Yet the Government cites no case so limiting Rule 60(b)(4) and numerous precedents have squarely rejected that limitation. Second, the Government argues that the three times that this Court held that Section 1964(a) imposed “jurisdictional” limits on the district court’s authority were “drive-by” jurisdictional rulings unworthy of respect. This contention is inconsistent with a faithful reading of those decisions. Finally, the Intervenors argue that a challenge to the district court’s jurisdiction under Section 1964(a) has been waived and that the parties have agreed to increase that jurisdiction. That argument is factually wrong. This issue was vigorously pressed at every stage. The argument is also irrelevant, because in the Rule

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60(b)(4) context, the jurisdictional limitation challenged here is not subject to the parties’ whims.

A. A provision of an order that exceeds the district court’s jurisdiction is “void” under Rule 60(b)(4).

Rule 60(b)(4) authorizes relief when an order is “void,” Fed. R. Civ. P. 60(b)(4), and an order is “‘void’ whenever the issuing court lacked jurisdiction.” Bell, 734 F.3d at 1180. Rule 60(b)(4) thus applies by its terms to all orders that exceed the district court’s “jurisdiction.”

The Government nonetheless attempts to restrict Rule 60(b)(4) to orders exceeding subject-matter or personal jurisdiction. Gov. Br. 17-18. But the Government notably does not cite a single case that imposes that atextual limitation. Instead, it cites Bell, which involved subject-matter jurisdiction, and Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987), which involved personal jurisdiction. Gov. Br. 17-18. Neither case even purports to limit Rule 60(b)(4). The Government also cites United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), but that case, too, “did not mention” the Government’s proposed limitation, Brumfield v. Louisiana State Bd. of Educ., 806 F.3d 289, 301 (5th Cir. 2015).

The Government’s failure to cite supporting caselaw is unsurprising: the Supreme Court, this Court, and numerous others have squarely held that Rule 60(b)(4) authorizes relief in cases not involving subject-matter or personal

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jurisdiction. In the words of the Seventh Circuit: “[A] judgment may be void for purposes of Rule 60(b)(4) if the court, although having jurisdiction over the parties and subject matter, entered a decree not within the powers granted to it by the law.” Indoor Cultivation, 55 F.3d at 1316; see, e.g., Klapprott, 335 U.S. at 609-11 (judgment is “void” under Rule 60(b)(4) when district court issues default judgment based on statute that contains “no command and no express authority” for such judgments) (alternative holding); Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 612 (6th Cir. 2011) (“Rule 60(b)(4) would be the proper vehicle” for challenge that court is “without power” to issue a particular remedy); Stenswick v. Bowen, 815 F.2d 519, 521 (9th Cir. 1987); Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974); Cassata v. Fed. Sav. & Loan Ins. Corp., 445 F.2d 122, 126 (7th Cir. 1971); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir.
1963); see also Narragansett Tribe v. Guilbert, 989 F.2d 484, *1 (1st Cir. 1993) (unpublished) (Breyer, CJ.).

For example, in Karsner—a case that RJRT invoked yet the Government ignores—this Court held that a Rule 60(b)(4) motion is appropriate when a district court exceeds its remedial authority under the Federal Arbitration Act (“FAA”). 532 F.3d at 886-87. In Karsner, a district court confirmed an arbitration ruling that recommended expungement of a securities law violation. On appeal, this Court invoked Rule 60(b)(4) to vacate one aspect of the district court’s decision. The

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FAA, this Court observed, does “not itself bestow[]” “subject matter jurisdiction,” and no one challenged personal jurisdiction. Id. at 882. This Court nevertheless held that “[s]ection nine of the FAA provides for the judicial confirmation of an arbitration award,” “[a]n expungement recommendation, however, is not an award and, accordingly, the district court is without section 9 authority to ‘confirm’ it.” Id. at 886-87 (emphasis removed). Karsner thus establishes that Rule 60(b)(4) applies whenever “the rendering court was powerless to enter” an order, and not only when the court lacked subject-matter or personal jurisdiction. Id.

These cases make clear that Judge Kollar-Kottelly’s decision in S.E.C. v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 2008), was correct. In Bolla, Judge Kollar- Kotelly granted a Rule 60(b)(4) motion regarding monetary penalties, because the statute did not provide “jurisdiction to impose [such] monetary penalties.” Id. at
63. The Government’s sole response is that this unappealed case was wrongly decided. Gov. Br. n.3. But it is consistent with and relies on the same Rule 60(b)(4) authorities as this Court’s decision in Karsner. Compare Bolla, 550 F. Supp. 2d at 58 (quoting Combs, 825 F.2d at 442 (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979))), with Karsner, 532 F.3d at 886 (same). The Intervenors’ separate response is that there was no conceivable jurisdiction in Bolla. Interv. Br. 29. That is wrong. But, more importantly, that was not the issue

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in Bolla, which squarely held that Rule 60(b)(4) required the court to vacate a monetary penalty that exceeded the court’s authority.

In light of this tsunami of precedent, RJRT’s “concession” that the district court had subject-matter jurisdiction and personal jurisdiction hardly “ends the inquiry.” Gov. Br. 18.1

B. Section 1964(a) limits the district court’s jurisdiction.

This Court has held repeatedly that Section 1964(a) limits the district court’s “jurisdiction.” Op. Br. 26-29. That is the law of the case and the circuit and cannot be disturbed, even for a “jurisdictional question,” absent “extraordinary circumstances” such as “manifest injustice.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).

The Government does not attempt to show such “extraordinary circumstances.” Instead, it argues that this Court’s repeated holdings are “drive-by jurisdictional rulings” and that, contrary to this Court’s rulings and RJRT’s “premise,” Section 1964(a) has nothing to do with “subject-matter jurisdiction.” Gov. Br. 19, 21.

—–

1 Even if Rule 60(b)(4) extends only to subject-matter or personal jurisdiction, RJRT still merits relief because Order #1015 exceeds the court’s subject-matter jurisdiction by ordering a remedy beyond its authority. Brumfield, 806 F.3d at 298 (holding that court lacked subject-matter jurisdiction over particular remedy because it “exceeded” the limit of court’s remedial “jurisdiction”).

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The Government is wrong. At the outset, neither this Court nor RJRT take as a “premise” that Section 1964(a) concerns subject-matter jurisdiction. Subject- matter jurisdiction over RICO actions is provided, as RJRT explained, by 28 U.S.C. §§ 1331, 1345, and 2201. Op. Br. 1. Instead, as this Court has held, Section 1964(a) limits remedial jurisdiction. Limits on remedial jurisdiction, or, as this Court put it, limits on “equitable jurisdiction,” Disgorgement Decision, 396 F.3d at 1197, arise where Congress “has provided a special and exclusive remedy, thereby negativing any jurisdiction that might otherwise be asserted,” Porter v. Warner Holding Co., 328 U.S. 395, 403 (1946). And, as explained above, Rule 60(b)(4) applies to rulings that exceed a district court’s remedial jurisdiction. More fundamentally, the Government is wrong that this Court’s decisions were “drive-by jurisdictional rulings.” “Drive-by” rulings are “unrefined dispositions” where jurisdiction was “assumed” by the parties and the court and those assumptions “made no substantive difference.” Arbaugh v. Y & H Corp., 546 U.S. 500, 511 (2006); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998). This is not a high bar. In Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, for example, the Supreme Court held that one statutory requirement was not jurisdictional and also stated that a second provision not at issue “vests” or “extends” “jurisdiction.” 558 U.S. 67, 71, 82 (2009). This Court nevertheless held that this was a “non-drive-by-ruling” for the second provision.

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Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d 227, 237 (D.C. Cir.
2013) (citation omitted). In comparison, this Court’s pages-long rulings on jurisdiction across three appeals, well after Steel Co., clearly should not be considered “drive-by” rulings.

In the Disgorgement Decision, for example, this Court considered whether “disgorgement came within th[e] jurisdictional grant” of Section 1964(a). 396 F.3d at 1192. “The Government,” this Court observed, “argues that § 1964 contains a grant of equitable jurisdiction that must be read broadly to permit disgorgement in light of Porter.” Id. at 1197 (citation omitted). This Court held, however, that because “[f]ederal courts are courts of limited jurisdiction,” “[w]e will not expand upon our equitable jurisdiction if, as here, we are restricted by the statutory language.” Id. Based on pages of analysis, this Court concluded that the statutory language grants “jurisdiction only for forward-looking remedies.” Id. at 1192, 1197-1202. The question of jurisdiction was thus thoroughly analyzed. This decision—and the two subsequent decisions reaffirming it—dooms the Government’s argument. See Remedial Decision, 566 F.3d at 1138 (addressing Defendants’ objection that the corrective-statements remedy “extends beyond the court’s jurisdiction under RICO”); Corrective Statements Decision, 801 F.3d at 253, 256 (concluding backward-looking preambles exceed court’s “jurisdiction”).

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The Government refuses to engage with this Court’s decisions. Instead, it cites a case where this Court disregarded a decision because “the court’s statement of its jurisdiction was one sentence long and devoid of discussion.” Gov. Br. 22 (citing United States v. Monzel, 641 F.3d 528, 541 n.3 (D.C. Cir. 2011)). This Court’s prior decisions on Section 1964(a) run far more than a sentence and extensively discuss jurisdiction. The Government next asserts that “nothing in those decisions turned on the jurisdictional status of the district court’s remedial authority.” Gov. Br. 21. But the Disgorgement Decision, for example, relied heavily on how to interpret grants of “equitable jurisdiction” such as that in Section 1964(a). 396 F.3d at 1197-99. Indeed, the Government itself agreed there that the jurisdictional nature of the inquiry mattered, justifying the district court’s authority on the ground that “federal courts vested with equitable jurisdiction retain the full scope of their inherent equitable powers unless Congress clearly strips them,” and distinguishing various precedents on the ground that “[m]any of these decisions” in fact “did not implicate questions of equitable jurisdiction at all.” Gov. Br. at *11,
*21, Disgorgement Decision, 396 F.3d 1190, 2004 WL 1950638.

In any event, this Court’s precedents establishing that Section 1964(a) is jurisdictional are correct. Congress has made remedial limitations jurisdictional, Arbaugh, 546 U.S. at 514-15 n.11 (citing statute providing jurisdiction over actions “for the partition of lands”); Porter, 328 U.S. at 398 (considering whether statute

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restricts remedies in equitable jurisdiction), and evidences its intent to do so through language and structure, Arbaugh, 546 U.S. at 515. In Oakey, for example, this Court held that a statute that established an adjudicator “of jurisdiction not exceeding the jurisdiction which may be lawfully exercised” set forth a jurisdictional limit because the “statutory language ‘clearly states’ that the arbitration requirement is jurisdictional, expressly ‘speak[ing] in jurisdictional terms’” and establishing a jurisdictional structure. 723 F.3d at 237 (quoting Arbaugh, 546 U.S. at 515). Congress spoke in similar jurisdictional terms with a similar structure here, expressly stating that “[t]he district courts of the United States shall have jurisdiction to prevent and restrain violations . . . .” 18 U.S.C. § 1964(a). Indeed, that is exactly how the Government previously understood Section 1964(a). In its brief in the Disgorgement Decision, the Government explained that “[t]he United States invoked the jurisdiction of the district court under 18 U.S.C. § 1964(a).” Gov. Br. at *1, *10, Disgorgement Decision, 396 F.3d 1190, 2004 WL 1950638 (emphasis added); see Gov. Br. at *1, Remedial Decision, 566 F.3d 1095, 2008 WL 2682546 (“The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 1964(a) & (b) and 28 U.S.C. §§ 1331, 1345 &
2201.”).

The Government asserts that Steel Co. held that it is “fanciful” to construe “a statute saying ‘the district court shall have jurisdiction to remedy violations in

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specified ways’ [as] render[ing] the existence of a violation necessary for subject- matter jurisdiction,” that Section 1964(a) has exactly the same structure as the referenced statute, and thus that RJRT’s arguments should be rejected. Gov. Br. 20 (quoting Steel Co., 523 U.S. at 91-92). But RJRT is not arguing that language concerning remedies means that “the existence of a violation” is necessary for “subject-matter jurisdiction” over a RICO action, but rather that Section 1964(a)’s language and structure together evince Congress’ intent to limit the court’s remedial jurisdiction. 523 U.S. at 91-92.

Steel Co. supports that argument. Immediately after the portion of Steel Co. that the Government quotes, the Court distinguished the statute that the Government relies on from a statute that “after creating the cause of action, went on to say that ‘the district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties,’ to provide various forms of relief.” Id. at 90 (emphasis in original). The Court held that the “without regard to the amount . . .” language confirmed the statute addressed jurisdiction. Id. Here, similarly, RICO creates and defines a cause of action elsewhere, 18 U.S.C. §§ 1962, 1964(b), and then addresses jurisdiction in criminal and, as most relevant here, civil cases with obviously jurisdictional language. See id. § 1963(j) (“[t]he district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the location of any property . . .”)

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(emphasis added); id. § 1964(a) (“[t]he district courts of the United States shall have jurisdiction to prevent and restrain violations [regarding enterprises] the activities of which affect interstate or foreign commerce . . . .”) (emphasis added).

The Government’s last gasp is to claim that treating Section 1964(a) as jurisdictional would mean that “no civil remedy under RICO or similarly worded statutes would ever truly be final.” Gov. Br. 22-23. But that is overstated—only those orders that in fact exceed the court’s remedial jurisdiction would not be final—and unhelpful—it is not probative to say that a narrower interpretation makes a rule apply to fewer cases. What is probative is that the Government asks this Court to ignore its own Section 1964(a) precedent.

C. Contrary to the Intervenors’ argument, the parties cannot enlarge the district court’s jurisdiction under Section 1964(a).

Unlike the Government, the Intervenors suggest that RJRT’s Rule 60(b)(4) challenge has been foreclosed. The Intervenors misunderstand the factual and procedural history of this case. See Part II. But their arguments are also legally flawed in the Rule 60(b)(4) context because parties cannot enlarge the district court’s jurisdiction.

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The Intervenors first suggest that RJRT has waived its Rule 60(b)(4) challenge. E.g., Interv. Br. 26, 29 n.12.2 As explained below, this is factually wrong: Defendants raised and prevailed on this issue in their very first merits appeal and raised the issue again as soon as it became apparent the Government and Intervenors believed that victory was illusory. See Part II.C; Op. Br. 35-37. But in any event, the Intervenors’ waiver argument is irrelevant. The Intervenors do not cite any case holding that Rule 60(b)(4) motions are subject to waiver, instead pointing to only a district court case that held, contrary to this Court’s subsequent precedent, that Rule 60(b)(4) applies in some circumstances only to manifest jurisdictional errors and a “fully and fairly litigated” jurisdictional error (unlike that here) is not manifest. Interv. Br. 29 n.12. The Intervenors’ failure is unsurprising, for their proposed rule conflicts with the fundamental principle that “[t]he limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). It is also inconsistent with blackletter law that there is no time limit for filing a Rule 60(b)(4) motion, see Bell, 734 F.3d at 1180, and the practice of granting Rule 60(b)(4) motions regarding remedial

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2 The Intervenors also suggest that jurisdictional challenges should be reviewed deferentially, but against RJRT’s contrary authority, Op. Br. 16, cite only a case that did not involve a jurisdictional challenge, Interv. Br. n.12.

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jurisdiction long after the deadline for filing an appeal has passed, see, e.g., Klapprott, 335 U.S. at 609-11; Bolla, 550 F. Supp. 2d at 56.

The Intervenors next argue that because RJRT “expressly assumed B&W’s liabilities,” “the district court plainly had jurisdiction to order RJR[T] to carry out remedies as the corporate successor to B&W.” Interv. Br. 26-28. This argument too rests on incorrect premises: As explained below, that position conflicts with this Court’s Remedial Decision, 566 F.3d at 1135, and the laws of time, logic, and RICO that these obligations automatically accrued not to RJRT, but to BWH. See Part II.A; Op. Br. 29-32. And it is also irrelevant, because it makes jurisdiction the plaything of the parties. On the Intervenors’ view, it does not matter whether a remedy will prevent and restrain future RICO violations, as long as the litigants agree that it could have prevented and restrained future RICO violations of a hypothetical entity that could have existed. But courts assess jurisdiction based on reality, not counterfactual constructs. See Rumsfeld v. Padilla, 542 U.S. 426, 448 (2004) (rejecting “extraordinary proposition that a district court can exercise statutory jurisdiction based on a series of events that did not occur”). Regarding the jurisdictional reality of B&W Tobacco’s non-existence, the Intervenors are deafeningly silent. See Interv. Br. 26-29.

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

Rule 60(b)(6) “grants federal courts broad authority to relieve a party from a final judgment upon such terms as are just.” Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011) (quotation marks omitted). Here, it would be unjust to require RJRT to run two sets of redundant corrective statements on television. That doubling would not prevent and restrain RJRT from engaging in future RICO violations, is impermissibly punitive, and treats RJRT differently than similarly-situated co-defendants. See Op. Br. 32-34.

The Government and Intervenors tellingly do not engage most of RJRT’s arguments and abandon much of the district court’s reasoning. They do not explain why doubling RJRT’s burden makes sense or complies with this Court’s limitations on RICO. Instead, the Government offers only that these arguments are “difficult to square” with RJRT’s behavior in the LTC merger. Gov. Br. 29. But the LTC merger confirms the injustice, because there RJRT explicitly assumed LTC obligations that the district court had already imposed. JA084. The Intervenors point to RJRT’s marketing expenditures and argue that the doubling is not per se impermissible. Interv. Br. 30. These arguments have nothing to do with whether doubling RJRT’s burden complies with RICO.

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The Government and Intervenors also concede the error of one of the district court’s reasons for denying RJRT’s Rule 60(b)(6) motion, that RJRT untimely filed its motion. Instead, the Government and Intervenors argue that RJRT could have raised the issue in a prior appeal. The Government consequently asserts that RJRT did not establish extraordinary circumstances, while the Intervenors assert that RJRT waived the issue. Regardless of label, however, the Government and Intervenors ignore that Defendants prevailed on this issue in a prior appeal and it would have been premature for RJRT to raise the issue in any other appeal.

Before turning to the Government and Intervenors’ two arguments, however, it is important to first correct an error that infects both arguments, namely, that RJRT automatically accrued the television corrective-statements obligation imposed on “Brown & Williamson.” This error conflicts with the Remedial Decision, the laws of time, the structure of Order #1015, and this Court’s limitations on remedial authority under RICO.

A. The television corrective-statements obligation imposed on “Brown & Williamson” did not automatically accrue to RJRT.

The Government and Intervenors posit that the television corrective- statements obligation the district court imposed on “Brown & Williamson” automatically accrued to RJRT “stemming from RJR[T]’s acquisition of the tobacco operations of [B&W Tobacco].” Gov. Br. 2; see, e.g., Gov. Br. 3, 25, 26; Interv. Br. 3, 20-23. But this Court rejected that view in its Remedial Decision,

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recognizing instead that the contested obligation automatically accrued to BWH, which was subsequently dismissed “by consent of the parties.” JA037. In the Remedial Decision, this Court observed that prior to trial, named-Defendant B&W Tobacco “merged all domestic tobacco operations with Reynolds [RJRT] and was reconstituted into Brown & Williamson Holdings (BWH).” 566 F.3d at 1135 (emphasis added). Thus, while RJRT inherited B&W Tobacco’s “operations,” B&W Tobacco as a corporate entity “was reconstituted into Brown & Williamson Holdings (BWH).” Id. This Court then explained that the district court erred by “focus[ing] throughout its opinion on Brown & Williamson” and “ma[king] no factual findings specific to BWH” that “BWH will commit future RICO violations” by “exercis[ing] plenary control over the tobacco operations” of subsidiaries, as the district court found at the time regarding what it described as Altria’s “plenary power” over Philip Morris. Id. Consequently, this Court remanded the question of whether BWH should be subject to Order #1015. In so doing, this Court necessarily understood that obligations imposed on “Brown & Williamson,” such as the television corrective-statements obligation, accrued automatically to BWH, not RJRT.

This Court’s view was clearly correct. RJRT could not inherit obligations from acquiring B&W Tobacco operations that had not been imposed on B&W Tobacco yet and that, later, were imposed on “Brown & Williamson”—an entity

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that either did not exist or that had been “reconstituted into Brown & Williamson Holdings (BWH).” Id. And it is consistent with the district court’s decision, which acknowledges the merger, but imposes only one set of television obligations on “each defendant,” including “Brown and Williamson.” United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 31 n.4, 941 (D.D.C. 2006); JA058. Finally, it accords with the statutory limitations on the district court’s power: because the television corrective statements are justified only to the extent they prevent and restrain future RICO violations by locking Defendants into a position, see Corrective Statements Decision, 801 F.3d at 257, it is not lawful to impose them on either a nonexistent entity, such as B&W Tobacco, or “operations” that are part of a company that is already locked into that position.

Indeed, in opposing BWH’s appeal, the Government necessarily took the position that obligations accrued to BWH; otherwise, there would have been no need for BWH to appeal. Yet despite the Government’s previous position and the centrality of BWH to this case, BWH is not mentioned once in the Government’s brief. The Government never explains how any obligations imposed on “Brown & Williamson” after the transaction automatically accrued to RJRT before those obligations ever existed, rather than to BWH. Nor, alternatively, does the Government even attempt to justify imposing “Brown & Williamson’s” full obligations on both RJRT and BWH (which is, in any event, inconsistent with

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Order #1015’s imposing a single set of obligations on “each defendant” and the only permissible purpose of the corrective statements—locking “each defendant” into a position). To be sure, the Government states 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.” Gov. Br. 28. But its sole support is Order #1015—issued two years after the transaction. The district court, however, cannot turn back time, overrule this Court, or violate RICO.

For the Intervenors’ part, they first claim that BWH is “irrelevant” because, according to an SEC filing, RJRT “expressly accepted B&W’s tobacco-related liabilities.” Interv. Br. 20-22. The Intervenors, however, cannot explain why there was any need for BWH to appeal at all. Indeed, they completely omit BWH’s role in the transaction. See Interv. Br. 19. In any event, what that SEC filing actually says is that RJRT agreed in the transaction to “indemnify” B&W Tobacco. Reynolds Am., Inc., Quarterly Report (Form 10-Q) at 6 & n.1 (Nov. 5, 2004). B&W Tobacco, as this Court recognized, was subsequently “reconstituted into Brown & Williamson Holdings (BWH).” 566 F.3d at 1135. Thus, by indemnifying B&W Tobacco at the time of the transaction, RJRT indemnified BWH after the transaction. Indeed, it could not be any other way, because it makes no sense to say that RJRT indemnified that which it acquired. An indemnification of BWH, however, applies only to obligations imposed on BWH,

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and here, there are none since BWH has been dismissed from this case. Nor does RJRT’s view absolve it of B&W Tobacco brands’ products liability, Interv. Br. 27 n.11, because RJRT has those liabilities by express “assumption,” not by indemnification.3 The Intervenors also suggest that Altria’s liability supports RJRT’s supposed inheritance, Interv. Br. 21, 27, but it shows the opposite: this Court distinguished Altria and BWH on the ground that, unlike BWH, the district court had found that Altria was an entity capable of independently committing future RICO violations. 566 F.3d at 1135. That is not true for RJRT and the operations it acquired from B&W Tobacco.

The Intervenors finally claim that RJRT has “always understood” it inherited “B&W’s tobacco-related liabilities” because RJRT “concedes its obligations” regarding onserts, websites, and newspaper corrective statements. Interv. Br. 20
23. This argument, however, ignores that Order #1015 imposes several different types of obligations. Some of the obligations, for example, onserts and brand websites, are imposed on the products of “each defendant.” JA021. All of a defendant’s products are covered, no matter their history. For those obligations,

—–

3 That express “assumption” involved only those liabilities of “B&W Tobacco” or relating to the operation of its business “prior to the date of” the transaction. Business Combination Agreement, § 1.02, available in Reynolds Am. Inc., Registration Statement (Form S-4), at 130, Annex A (Jan. 16, 2004) (providing for assumption of liabilities); Formation Agreement, § 1.01, available in Reynolds Am. Inc., Current Report (Form 8-K), Ex. 10.1 (Aug. 9, 2004) (defining assumed liabilities).

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the district court’s use of “Brown & Williamson” does not matter: RJRT possesses those obligations post-transaction because it now owns the products. That is why the onsert and website obligations also apply to new RJRT brands, a fact that the Intervenors cannot explain. By contrast, other obligations of “each defendant,” such as television corrective statements, are not imposed on products. JA021,
026.4 For these obligations, the use of “Brown & Williamson” matters because that entity has been dismissed from this case, and imposing its obligations on other Defendants does not prevent their potential RICO violations (as BATCo’s dismissal confirms, see Interv. Br. 28). RJRT is thus perfectly consistent in accepting its “inheritance” of onsert and website obligations but not television obligations, because RJRT has not inherited onsert and website obligations “as the successor to B&W”; rather, RJRT must perform those obligations for all of RJRT’s brands (including former B&W Tobacco brands) because RJRT is a “defendant.” Interv. Br. 22.5

—–

4 Although newspaper corrective statements are similar, here, because the parties agreed to a different structure for newspaper publications, that remedy is not at issue. In particular, the parties agreed and the court ordered that Defendants (not including B&W Tobacco) collectively would run five sets of newspaper publications, each on a different subject matter; Order #51-Remand is indifferent to which Defendant runs which corrective statement, as long as all five subjects are covered. JA054-56.

5 The Intervenors suggest this Court lacks jurisdiction. Interv. Br. n.7. But when an interlocutory order, as here, “den[ies] a specific request to dissolve an injunction[,] it falls within the plain text of § 1292(a)(1).” Salazar ex rel. Salazar v. Dist. of Columbia, 671 F.3d 1258, 1261 (D.C. Cir. 2012); see Brumfield, 806

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B. There is no logical basis for requiring RJRT to run two sets of corrective statements on television.

The Government does not contest that it would be unjust to require RJRT to run two sets of redundant corrective statements on television. Instead, it responds that RJRT’s position is “difficult to square with [RJRT]’s representation” in the LTC merger that RJRT would “assume [LTC’s] obligations” for “the corrective statements on television.” Gov. Br. 29. But the LTC merger confirms the injustice. When the LTC merger occurred, the district court already had imposed a television corrective-statements obligation upon LTC and ordered that any subsequent transaction for tobacco brands include that obligation. JA033-34. When RJRT acquired B&W Tobacco’s brands, by contrast, the district court had not yet imposed any obligations. Nor did RJRT automatically accrue “Brown & Williamson’s” (in any event nonexistent) obligations. Accordingly, RJRT’s representations regarding LTC make perfect sense, on their own and in the context of RJRT’s position here.

RJRT’s “willingness to take on Lorillard’s publication obligations” also does not “foreclose[] RJR[T]’s argument now” that doubling RJRT’s burden

—–

(continued…)

F.3d at 296. The Intervenors’ only case, by contrast, involved a “motion for clarification.” United States v. Philip Morris USA Inc., 686 F.3d 839, 842 (D.C. Cir. 2012). In addition, the Intervenors’ argument assumes—inaccurately—that the television obligation accrued to RJRT.

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“would do nothing to prevent and restrain future RICO violations.” Gov. Br. 29-30. RJRT’s “willingness” was commanded by Order #1015’s brand-transfer requirement. See JA033-34. Consequently, the Government’s argument also proves too much, for it would mean that the transfer requirement itself exceeds RICO’s limits. See Corrective Statements Decision, 801 F.3d at 257. The Intervenors directly defend doubling RJRT’s burden. They first observe the television corrective-statements obligation comprises a “fraction” of Defendants’ marketing budgets. Interv. Br. 30. But that is irrelevant to whether a remedy prevents RJRT from engaging in future RICO violations. Second, the Intervenors observe that RJRT is publishing LTC’s corrective statements and Altria and Philip Morris each run separate corrective statements. Interv. Br. 31. But the LTC obligations stem from the transfer requirement, see supra, and the remaining structure reinforces that, if the Government and Intervenors are correct, RJRT must publish twice as many television corrective statements as other entities independently found likely to violate RICO. Finally, the Intervenors counterfactually argue that if B&W Tobacco had become a subsidiary, then there would be two corresponding sets of television corrective statements. Interv. Br. n.14. But the actual corporate structure is relevant, because RICO requires evidence “specific” to a particular entity. Remedial Decision, 566 F.3d at 1135.

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C. RJRT could not have appealed before now.

The Government and Intervenors’ primary argument is that RJRT could have appealed regarding the television corrective-statements obligation before now. The Government claims that, as a result, RJRT failed to demonstrate extraordinary circumstances. The Intervenors call the same argument waiver. But, if anything, it is actually the Government and Intervenors who should have litigated this issue earlier, when they, instead, consented to BWH’s dismissal. Their current attempt to cast aspersions on RJRT should not relieve them of their earlier strategic decision.

After Order #1015 issued, Defendants appealed the imposition of obligations on “Brown & Williamson.” This Court held that the district court failed to justify those obligations and remanded. The district court then “by consent of the parties” dismissed BWH without reimposing the “Brown & Williamson” obligations elsewhere. JA037. In mediation, RJRT learned that the Government and Intervenors believed that the dismissal of BWH did not mean what it seemed to mean and that RJRT had somehow inherited the “Brown & Williamson” obligations. RJRT then reserved its rights, JA072, and requested relief days later. RJRT, unlike its opponents, acted with diligence. See Op. Br. 35-37; Dkt. No. 6119, at 21 (Government countermotion to “clarify” Order #1015).

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It is thus not true, as the Government and Intervenors claim, that RJRT forwent appeal in the four appeals since Order #1015. Gov. Br. 24-27; Interv. Br. 18-19. This issue was successfully appealed in the very first appeal. It is only if the district court’s obligations on “Brown & Williamson” automatically accrued to RJRT, instead of BWH, that another appeal was appropriate before mediation. Gov. Br. 26; see Interv. Br. 19 (making that assumption). As discussed above, however, this is not true.

Perhaps recognizing the pre-mediation confusion, the Government emphasizes that RJRT “failed to present that issue to this Court in its appeal from the 2014 consent order” despite appearing “as successor to Brown & Williamson Tobacco Corporation.” Gov. Br. 26-27. But in its brief, RJRT informed this Court that such a challenge “has been fully briefed and is now awaiting decision by the district court.” Def. Br. at *14 n.3, Corrective Statements Decision, 801 F.3d 250, 2014 WL 4827112. Indeed, back in 2008, the Government agreed that was the proper course: before mediation, it wrote that “BWH suggests that the new operating company alone should be subject to the injunction” and argued that “[t]his issue should be addressed by the district court in the first instance.” Gov. Br. at *214 n.36, Remedial Decision, 566 F.3d 1095, 2008 WL 2682546 (emphasis added). It would have been premature for RJRT to raise on appeal in “a court of review,” not “first view,” an issue that was “fully briefed” and “awaiting decision”

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by the district court. See Texas v. United States, 798 F.3d 1108, 1115 (D.C. Cir.
2015). And RJRT’s appearance as a “successor” means nothing more than that RJRT succeeded to those “B&W Tobacco” obligations that existed at the time of the transaction.

RJRT simply could not have appealed this issue earlier. There is thus no waiver. And there are extraordinary circumstances, for RJRT is faultless. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 393 (1993).6 Contrary to the Government’s assertion, Gov. Br. 27-28, numerous circuits have held that Rule 60(b)(6) relief is “the proper remedy” for such a “series of misunderstandings.” Prince v. Stewart, 580 F.3d 571, 573 (7th Cir. 2009) (quotation marks omitted). The Seventh Circuit, for example, held that Rule 60(b)(6) relief is justified when a district court “lulled [a party] into thinking” that it need not act when it did. Id. at 574; see Knox v. Lichtenstein, 654 F.2d 19, 22 (8th Cir. 1981), decision clarified on denial of reh’g, 661 F.2d 693; Ford Motor Co. v. Mustangs Unlimited, Inc., 420 F. App’x 522, 530 (6th Cir. 2011) (unpublished); see also Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062,

—–

6 The Government wrongly criticizes RJRT for purportedly resisting the “extraordinary circumstances” requirement. Gov. Br. 24. All that RJRT meant is that the “extraordinary circumstances” requirement is not different from the requirements that the ground for Rule 60(b)(6) relief be independent of Rule 60(b)(1)-(5) and not based solely on a party’s regret for having forgone an appeal. That is incontrovertible, for the “extraordinary circumstances” requirement is based precisely on these two concerns. Salazar, 633 F.3d at 1120; see Pioneer, 507 U.S. at 393.

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1068 (10th Cir. 1980); see generally 10 Cyc. of Federal Proc. § 37:16 (3d ed.). The same is true here: at a bare minimum, the district court’s uncontested dismissal of BWH unintentionally “lulled” RJRT into thinking Defendants had prevailed on this issue in district court just as they had prevailed in this Court.

The Intervenors add an additional waiver argument, namely, that the Corrective Statements Decision held that RJRT may not “re-argue the lawfulness of the required television advertisements at issue in this appeal on the ground[] that they do not separately prevent and restrain further RICO violations.” Interv. Br. 24-25. But what the portion of the decision that the Intervenors cite holds is that a First Amendment challenge to all the corrective statements was waived because it could have been raised in 2006. Id. Here, Defendants did appeal the issue of “Brown & Williamson’s” liability in 2006 and raised it again as soon as they could.

The Government and Intervenors ultimately believe that RJRT should have realized that this Court’s remand to determine whether the obligations imposed on “Brown & Williamson” were properly imposed on BWH, followed by the district court’s dismissal of BWH without reimposing those obligations, really meant that the dismissed obligations automatically accrued to RJRT. It is extraordinary to claim that RJRT should have been so prescient.

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CONCLUSION

For the foregoing reasons, the district court’s decision should be reversed.

Dated: April 14, 2016 Respectfully submitted,

Noel J. Francisco

Peter J. Biersteker

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Jeffrey A. Mandell

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Madison, WI 53703

Telephone: (608) 256-0226

Facsimile: (608) 259-2600

Geoffrey K. Beach

WOMBLE CARYLE

SANDRIDGE & RICE LLP

One West Fourth Street

Winston-Salem, NC 27101

Telephone: (336) 721-3600

Facsimile: (336) 721-3660

Counsel for Appellant

R.J. Reynolds Tobacco Company

(individually and as successor to

Brown & Williamson Tobacco

Corporation)

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation established by Federal Rule of Appellate Procedure 32(a)(7)(B)(i) because it contains 6,998 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii) and Circuit Rule 32(e)(1). This brief complies with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced font using Microsoft Word 2010 in 14-point Times New Roman type.

Dated: April 14, 2016

/s/ Jeffrey A. Mandell

Jeffrey A. Mandell

Counsel for Appellant

R.J. Reynolds Tobacco Company

(individually and as successor to Brown & Williamson Tobacco Corporation)

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CERTIFICATE OF SERVICE

I hereby certify that on April 14, 2016, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Jeffrey A. Mandell Jeffrey A. Mandell

Counsel for Appellant

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

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