USA v PHILIP MORRIS, et. al. Appeal: APPELLANTS’ REPLY BRIEF, Dec 22, 2016

December 22, 2016 9:21 pm by Gene Borio

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EXCERPT:

This Court rejected this gamesmanship in the Corrective Statements Decision when it held that Defendants correctly objected to publishing the original preambles. It should do so again here because the district court’s revised preambles suffer from the same flaws as the preambles previously invalidated by this Court: The revised preambles unambiguously convey that Defendants previously withheld “the truth” and are providing it now only because they are being “ordered” by a “Federal Court” to do so. This backward-looking, self-condemnatory message—that “Here, finally, is the truth” that Defendants withheld and a “Court” has “ordered” them to disseminate—is not compatible with RICO or the First Amendment.

END EXCERPT

FULL TEXT:

12/22/2016 Open Document APPELLANT REPLY BRIEF [1652691] filed by Altria Group, Inc., Commonwealth Brands Incorporated, Commonwealth-Altadis, Inc., ITG Brands, LLC, Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 16-5101, 16-5127 [Service Date: 12/22/2016 ] Length of Brief: 6,993 words. [16-5101, 16-5127] (Mandell, Jeffrey)

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ORAL ARGUMENT SCHEDULED FOR FEBRUARY 14, 2017

Nos. 16-5101 & 16-5127

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

PHILIP MORRIS USA INC., ET AL.,

Defendants-Appellants.

On Appeal From Orders Of The United States District Court

For The District Of Columbia

1:99-cv-02496-GK

APPELLANTS’ REPLY BRIEF

Miguel A. Estrada Noel J. Francisco

Amir C. Tayrani Michael Murray

GIBSON, DUNN & CRUTCHER LLP JONES DAY

1050 Connecticut Avenue, N.W. 51 Louisiana Avenue, N.W.

Washington, D.C. 20036-5306 Washington, D.C. 20001-2113

Telephone: (202) 955-8257 Telephone: (202) 879-3939

Facsimile: (202) 530-9016 Facsimile: (202) 626-1700

Counsel for Appellants Philip Morris Counsel for Appellant

USA Inc. and Altria Group, Inc. R.J. Reynolds Tobacco Company

(individually and as successor to

Lorillard Tobacco Company)

[Additional Counsel Listed on Inside Cover]

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Robert J. Brookhiser, Jr.

Elizabeth B. McCallum

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5304

Telephone: (202) 861-1500

Facsimile: (202) 861-1783

Counsel for Post-Judgment Parties

Regarding Remedies ITG Brands, LLC,

Commonwealth Brands, Inc., and

Commonwealth-Altadis, Inc.

Jeffrey A. Mandell

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Madison, WI 53703

Telephone: (608) 256-0226

Facsimile: (608) 259-2600

Counsel for Appellant

R.J. Reynolds Tobacco Company

(individually and as successor to

Lorillard Tobacco Company)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ……………….. iii

GLOSSARY …………………. v

INTRODUCTION AND SUMMARY OF ARGUMENT ………….. 1

ARGUMENT………………… 5

I.

The District Court’s Revised Corrective Statements Violate This Court’s Mandates And Section 1964(a) Of RICO. ……………. 5

A.

Contrary To Plaintiffs’ Argument, The Corrective Statements Decision’s Holding That The Preambles Must Be Forward-Looking Communications About Products Applies To All Elements Of The Preambles. ………….. 6

B.

The District Court’s Revised Preambles To The Corrective Statements Are Not Forward-Looking Communications About Products. ……………….. 9

1.

The “Here Is The Truth” Tagline Conveys That Defendants Previously Withheld “The Truth.” ………………10

2.

The Different Language For ITG Brands Conveys Defendants’ Past Misconduct. ………….15

3.

The District Court’s Rejection Of The Manufacturers’ Proposal Confirms That The Preambles Convey Past Misconduct. …………….16

C.

The Manufacturers Are Not Foreclosed From Raising Any Of Their Challenges To The Revised Preambles. …………………..17

1.

The Manufacturers May Challenge The Language That “A Federal Court Has Ordered” Defendants To Make The Corrective Statements. …………17

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2.

The Manufacturers May Argue That The Different Language For ITG Brands Conveys Defendants’ Past Misconduct. …………….19

3.

The Manufacturers May Challenge The Formulations Of Topics (C) And (D). …………….21

II.

The District Court’s Revised Corrective Statements Violate This Court’s 2009 Mandate And The First Amendment. ………….23

A.

The Revised Preambles Do Not Satisfy Zauderer And Therefore Violate This Court’s Mandate. ………………….23

1.

Contrary To Plaintiffs’ Argument, First Amendment Analysis Must Be Conducted In This Case. …………….24

2.

The Revised Preambles Violate Zauderer. ………………28

B.

The Revised Preambles To The Corrective Statements Violate The First Amendment Under Central Hudson………………30

CONCLUSION …………….33

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TABLE OF AUTHORITIES

Cases

* Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) (en banc) ………………. 23, 26

Aspinall v. Philip Morris Cos.,

No. 98-6002-H, 2012 WL 3627421 (Mass. Super. Mar. 14, 2012) ………………..29

* Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,

447 U.S. 557 (1980) ………….. 5, 30, 31, 32

Ibanez v. Fla. Dep’t of Bus & Prof’l Regulation,

512 U.S. 136 (1994) ………… 29, 30

* Nat’l Ass’n of Mfrs. v. SEC,

800 F.3d 518 (D.C. Cir. 2015) …………….. 5, 23, 26, 30, 32

New Hampshire v. Maine,

532 U.S. 742 (2001) ………………19

Pooshs v. Philip Morris USA, Inc.,

904 F. Supp. 2d 1009 (N.D. Cal. 2012) ………….29

R.J. Reynolds Tobacco Co. v. FDA,

696 F.3d 1205 (D.C. Cir. 2012) …………. 23, 26, 29

Roth v. U.S. Dep’t of Justice,

642 F.3d 1161 (D.C. Cir. 2011) …………. 10, 17, 21

Shaffer v. R.J. Reynolds Tobacco Co.,

860 F. Supp. 2d 991 (D. Ariz. 2012) ………………29

Solomon v. Vilsack,

763 F.3d 1 (D.C. Cir. 2014) ……………….30

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

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* United States v. Philip Morris USA Inc.,

566 F.3d 1095 (D.C. Cir. 2009) …………… 7, 12, 23, 25, 26, 30, 31

* United States v. Philip Morris USA Inc.,

801 F.3d 250 (D.C. Cir. 2015) ……………… 1, 2, 6, 8, 11, 18, 22, 23, 24, 27

United States v. Philip Morris USA, Inc.,

449 F. Supp. 2d 1 (D.D.C. 2006) …………………..22

United States v. Philip Morris USA, Inc.,

907 F. Supp. 2d 1 (D.D.C. 2012) …………….. 12, 22

Warner-Lambert Co. v. FTC,

562 F.2d 749 (D.C. Cir. 1977) ……………10

* Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,

471 U.S. 626 (1985) ……………….23, 25, 26, 28, 29, 30, 31

Other Authorities

Adam Hadhazy, Here’s the Truth About the ‘Planned Obsolescence’ of Tech, BBC

(June 12, 2016) …………..14

Ben Geman, Al Gore Calls for ‘Bold Action’ From Obama on Climate, The Hill

(June 23, 2011) …………..14

Javier Colon, Ok, Here’s the Truth, on Come Through for You (2011) …………….14

Lisa Spayd, Here’s the Truth About ‘False Balance,’ N.Y. Times S12 (Sept. 11,

2016) ……………..14

Lynn Stuart Parramore, Everything You’ve Been Told About Personal Finance is

Dead Wrong—Here’s the Truth, Alternet (Mar. 5, 2013) ………………….14

Musamaali Nangoli, No More Lies About Africa: Here’s the Truth from an

African (2001) ……………14

Roy Greenslade, Here’s the truth: ‘fake news’ is not social media’s fault, The

Guardian (Nov. 23, 2016) ………………….14

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GLOSSARY

AMI Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc)

NAM Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015),

reaffirming on panel rehearing, 748 F.3d 359 (2014),

after abrogation on other grounds by Am. Meat Inst. v.

U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en

banc)

RICO Racketeer Influenced and Corrupt Organizations Act

RJRT R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205

(D.C. Cir. 2012)

v

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v INTRODUCTION AND SUMMARY OF ARGUMENT

Defendants long have stood ready to publish lawful corrective statements and repeatedly have offered alternatives based on the earlier proposals of the Government and Intervenors (collectively, “Plaintiffs”). See Op. Br. 10-13, 17-19. But each time Defendants embrace aspects of Plaintiffs’ positions, Plaintiffs move the goalposts. Compare Op. Br. 10-12 with Op. Br. 18-19. At the same time, Plaintiffs falsely accuse Defendants of engaging in delay tactics and compare good-faith legal arguments to the acts of racketeering found by the district court. Gov. Br. 23, 19; Interv. Br. 20. This Court rejected this gamesmanship in the Corrective Statements Decision when it held that Defendants correctly objected to publishing the original preambles. United States v. Philip Morris USA Inc., 801 F.3d 250, 257 (D.C. Cir. 2015) (“Corrective Statements Decision”). It should do so again here because the district court’s revised preambles suffer from the same flaws as the preambles previously invalidated by this Court: The revised preambles unambiguously convey that Defendants previously withheld “the truth” and are providing it now only because they are being “ordered” by a “Federal Court” to do so. This backward-looking, self-condemnatory message—that “Here, finally, is the truth” that Defendants withheld and a “Court” has “ordered” them to disseminate—is not compatible with RICO or the First Amendment.

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I. This Court repeatedly has held that under RICO the corrective statements must be forward-looking communications about products that focus on preventing Defendants from committing future RICO violations. Instead of applying these standards to the revised preambles, Plaintiffs primarily attempt to erect procedural barriers to consideration of the merits. All should be rejected.

A. Plaintiffs principally argue that the Corrective Statements Decision applies only to the “deliberately deceived” language in the original preambles. Gov. Br. 21; Interv. Br. 20. But the Corrective Statements Decision explicitly rejected “the preambles” as a whole. 801 F.3d at 262. Indeed, Plaintiffs’ argument is inconsistent with this Court’s decision not to resolve Defendants’ First Amendment challenges, which went well beyond the phrase “deliberately deceived.”

B. Plaintiffs next argue that the revised preambles convey a permissible message. Specifically, they argue that the “Here is the truth” tagline “underscore[s]” for consumers the “importance and accuracy” of the bullet points. Gov. Br. 22; Interv. Br. 23. But that justification runs afoul of the Corrective Statements Decision’s holding that the preambles may not serve to “correct and prevent consumer deception.” 801 F.3d at 261. Moreover, the extra-record sources that Plaintiffs cite for support betray the complete lack of record support for their view of the revised preambles and, if anything, demonstrate how the

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revised preambles are plainly impermissible. After all, Plaintiffs’ non-record citations demonstrate that the revised preambles can be construed as backward- looking statements intended to shame Defendants for past conduct. Plaintiffs also concede that they did not oppose, and the district court permitted, language in the revised preambles distinguishing Post-Judgment Party Regarding Remedies ITG Brands1 from Defendants, but miss the point by contending that language is required for accuracy only with respect to certain bullet points. The language, however, appears even in the statements that do not contain those bullet points, because it is needed in all the statements as drafted to distinguish ITG Brands, which was not found to have engaged in past misconduct, from Defendants that were. And Plaintiffs simply have no response to the Manufacturers’ argument that the only reason to prefer the revised preambles to the Manufacturers’ proposal is to taint Defendants with wrongdoing.

C. Finally, Plaintiffs argue that the Manufacturers are foreclosed from challenging many aspects of the preambles. They assert that Defendants have waived challenges to the “Federal Court has ordered” language and the topic descriptions for statements (C) and (D). But Defendants successfully challenged the entire preambles, including these elements, in the Corrective Statements

1 ITG Brands and two affiliates became subject to the district court’s remedial order when they acquired cigarette brands from two Defendants in June
2015. JA565.

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Decision. Plaintiffs also assert that the Manufacturers are estopped from arguing that the ITG Brands-specific language in the preambles helps demonstrate the problems with the preambles, but the Manufacturers have consistently maintained that the language distinguishing non-Defendant ITG Brands is necessary, precisely because the preambles as originally drafted and as revised impermissibly focus on Defendants’ past misconduct.

II. This Court has not yet had occasion to address a First Amendment challenge to the preambles because it ruled that the original preambles violated RICO. The revised preambles violate this Court’s mandate and, independently, the First Amendment.

A. The revised preambles violate this Court’s mandate because they fail the Zauderer standard upon which the mandate rests. Plaintiffs argue that Zauderer analysis is unnecessary because corrective statements that comply with RICO necessarily comply with Zauderer. But RICO and the First Amendment provide different protections. Indeed, this Court’s Corrective Statements Decision separately treated RICO and Zauderer challenges to the same aspects of the corrective statements. Plaintiffs also argue that the revised preambles comply with Zauderer, but their arguments rest on interpreting Zauderer in conflict with this Court’s precedent.

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B. The revised preambles also independently violate the First Amendment because they fail Central Hudson. Central Hudson applies, as Plaintiffs do not contest, to commercial speech “unconnected to advertising.” Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 522-26 (D.C. Cir. 2015) (“NAM”). Here, the corrective statements are not connected to advertising. And they fail Central Hudson review because the Manufacturers’ proposal is equally effective. Plaintiffs argue that Central Hudson does not apply because this Court held that the corrective statements-remedy is “adequately tailored.” Gov. Br. 38; Interv. Br.
34. But that holding neither states nor implies that the corrective statements are “connected to advertising.” Plaintiffs also argue that applying Central Hudson is forbidden by the law of the case. But this Court’s earlier decisions required only that the corrective statements comply with Zauderer and left open the question of which standard to apply where the corrective statements fail Zauderer, as they do here in light of NAM. Accordingly, the revised preambles should be vacated. ARGUMENT

I. The District Court’s Revised Corrective Statements Violate This Court’s Mandates And Section 1964(a) Of RICO.

This Court repeatedly has held that the corrective statements must be forward-looking communications about products that prevent Defendants from violating RICO, not retrospective statements focused on Defendants’ prior deceptive conduct for the benefit of consumers. Like the original preambles, the

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revised preambles violate this standard because they require Defendants to state that they have been “ordered” by a “Federal Court” to tell “the truth.”2

A. Contrary To Plaintiffs’ Argument, The Corrective Statements Decision’s Holding That The Preambles Must Be Forward- Looking Communications About Products Applies To All Elements Of The Preambles.

In their opening brief, the Manufacturers established that this Court’s Corrective Statements Decision requires that the corrective statements be limited to forward-looking communications about products focused on preventing Defendants from violating RICO. See Op. Br. I.A. Rather than confronting this argument directly, Plaintiffs argue that the Corrective Statements Decision concerned only the phrase “deliberately deceived” in the original preambles. Gov. Br. 20; Interv. Br. 20. This misreads the Corrective Statements Decision.

There, Defendants challenged the entirety of the preambles, as well as several bullet points, on the ground that they contained “backward-looking” language condemning Defendants’ “past wrongdoing.” 801 F.3d at 261. For example, Defendants explicitly argued that “[t]he district court’s jurisdictional overreach is most apparent in the prefatory language requiring Defendants to

2 The Government suggests that the proper standard of review is “abuse of discretion.” E.g., Gov. Br. 23. But this Court expressly and exclusively reviewed both RICO and First Amendment challenges to the corrective statements “de novo” in the Corrective Statements Decision because whether “the corrective statements exceed the district court’s remedial authority under RICO and violate the First Amendment” rests on “conclusions of law.” 801 F.3d at 256.

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announce that they were found to have ‘deliberately deceived’ the American public’; the ‘Here is the truth’ language; and the bulletpoints in statements B and D.” Defs. Op. Br. 55; see id. 17, 30, 40; Defs.’ Reply Br. 16. This Court agreed, holding that “the preambles”—that is, the portion of the corrective statements other than the bullet points, see JA533—“cannot be justified,” 801 F.3d at 261-63 (using term “preamble” thirteen times to refer to the unlawful language). After reiterating that the corrective statements must “‘reveal the previously hidden truth about their products,’” this Court held that “unlike the bulleted statements, which do just that, the preambles reveal nothing about cigarettes; instead, they disclose defendants’ prior deceptive conduct.” Id. at 260-61 (last emphasis in original, quoting United States v. Philip Morris USA Inc., 566 F.3d 1095, 1140 (D.C. Cir. 2009) (“2009 Opinion”)).

The Government tried to salvage its case by arguing that “the preamble is essential to ‘protect consumers from deception,’ as it ‘alert[s] [ ] consumer[s] to the fact that they have been misinformed, and then provide[s] the accurate information’”—the latter emphasized phrase clearly referencing the “Here is the Truth” tagline. Id. at 261 (quoting district court) (emphasis added). This Court, however, rejected the Government’s expansive view of the district court’s remedial authority. Id. at 262. By its terms, then, this Court’s language and reasoning

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rejected the district court’s “preambles” in full as “reveal[ing] nothing about cigarettes.” Id. at 260-62.

Indeed, so pervasive was the RICO flaw in the preambles that this Court did not reach Defendants’ other objections: because this Court had decisively rejected the preambles in their entirety, it did not address whether any elements of the preambles also were not “purely factual and uncontroversial” under this Court’s 2009 Opinion mandate, violated the First Amendment, or failed to comport with due process. See 801 F.3d at 256. Each of these arguments, however, went to the preambles as a whole, not simply the “deliberately deceived” language. Defs.’ Op. Br. 21-52. The Court’s conclusion that there was no need to address these arguments, therefore, necessarily confirms that its decision was not limited to the “deliberately deceived” phrase.

In any event, this Court’s reasoning was not limited to the “deliberately deceived” language. See Op. Br. 33-35. Indeed, Plaintiffs’ own briefs ultimately admit that any disclosure of prior deceptive conduct must be excised. Gov. Br. 21; Interv. Br. 21. And as explained immediately below, numerous aspects of the revised preambles make clear that they are backward-looking statements focused on prior conduct.

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B. The District Court’s Revised Preambles To The Corrective Statements Are Not Forward-Looking Communications About Products.

In their opening brief, the Manufacturers established that the revised preambles convey an unequivocal message that Defendants previously deceived the American public and are being compelled to make corrective statements as a sanction for prior wrongdoing. See Op. Br. I.B. That message is evidenced by the combination of five elements: (1) the “Here is the truth” tagline, (2) the “Federal Court has ordered” language, (3) the clarifying language necessary for ITG Brands, (4) the conduct-focused formulations of topic descriptions (C) and (D), and (5) the rejection of the Manufacturers’ proposal.

Plaintiffs notably do not dispute that two elements—the “Federal Court has ordered” language and the topic descriptions (C) and (D)—convey an unlawful message. Nor could they: the “Federal Court has ordered” language communicates that Defendants are being compelled to speak as punishment for prior wrongdoing, because courts do not typically order companies to disseminate information about their products absent past improper communications. Indeed, the Government itself conceded in the district court that this language promotes “inferences about a RICO defendant’s ‘past conduct.’” JA612 (defending such inferences as permissible). And topic descriptions (C) and (D) proclaim Defendants’ misconduct regarding improperly “selling and advertising” and

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“designing” cigarettes. Plaintiffs’ efforts to contest the overall message by focusing on the other three elements in isolation are unavailing. Rather, when viewed in the context of the corrective statements as a whole, it is clear that the preambles are backward-looking statements focused on prior conduct.

1. The “Here Is The Truth” Tagline Conveys That Defendants Previously Withheld “The Truth.”

The “Here is the truth” tagline conveys that Defendants previously withheld “the truth” and are now providing it only because they are being “ordered” by a “Federal Court” to do so. That is because no one affirms that a message is the truth for no reason, and thus the tagline adds meaning to the corrective statements. That meaning, in context, is that “Here, finally, is the truth” that was withheld. See Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977).3

Plaintiffs do not dispute that the tagline has meaning, and they thus have forfeited any argument that it is mere introductory filler. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1181 (D.C. Cir. 2011) (argument not raised in appellee’s brief is forfeited). Instead, they argue it “does nothing more” than “underscore the importance and accuracy” of the bullet points for the benefit of consumers. Gov. Br. 19, 21-23; Interv. Br. 21-23. But even if they are correct as to what the tagline

3 The Intervenors implausibly distinguish Warner-Lambert by comparing the tagline to facts about “Listerine’s effectiveness.” Interv. Br. n.7.

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does, which they are not, the Corrective Statements Decision prohibits such preambles.

a. This Court’s Corrective Statements Decision clearly held that the preambles may not be justified by “consumer-focused” reasoning. 801 F.3d at
262. “[C]orrecting consumer misinformation, which focuses on remedying the effects of past conduct, is thus an impermissible objective under RICO.” Id. “Seeking to prevent consumer deception is similarly impermissible because, although forward-looking, it focuses not on restraining the RICO violator, but on safeguarding consumers against RICO violations.” Id.

Yet using the “Here is the truth” tagline to “underscore” to consumers the “importance and accuracy” of the bullet points necessarily serves one of these “consumer-focused” objectives. Such emphasis is necessary either to alert consumers to the accuracy of new information—i.e., to “correct[] consumer misinformation”—or to protect consumers through current emphasis from believing future misstatements —i.e., “to prevent consumer deception.”

Indeed, Plaintiffs’ own words betray exactly these “consumer-focused” objectives. For Intervenors, the revised preambles “are designed to counteract past false or misleading claims,” Interv. Br. 31 n.9, in direct contravention of the prohibition on “correcting consumer misinformation,” 801 F.3d at 262. For the Government, the tagline of the revised preambles is justified to prevent Defendants

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from succeeding at another “attempt to give smokers a psychological crutch and a self-rationale to continue smoking,” Gov. Br. 23 (internal citation omitted), in direct contravention of the prohibition against “seeking to prevent consumer deception,” which is “impermissible because, although forward-looking, it focuses not on restraining the RICO violator, but on safeguarding consumers against RICO violations,” 801 F.3d at 262. The Government’s argument also is in significant tension with the 2009 Opinion’s rejection of a nationwide smoking-cessation program. 566 F.3d at 1148-49.

b. But even putting aside this fundamental flaw, Plaintiffs’ defense of the tagline is unavailing because the tagline does not emphasize only “importance and accuracy.” To support their view of the tagline’s message, Plaintiffs first offer their own ipse dixit, Gov. Br. 21-22; Interv. Br. 22, but that is insufficient. Indeed, when the Government introduced the text for the original preambles, it “based” their very “foundation” upon “extensive research” and “data” in a 500-page expert report. Dkt. Nos. 5875, at 1, 5875-1, at 9, 5891, at 16; see United States v. Philip Morris USA, Inc., 907 F. Supp. 2d 1, 26 n.15 (D.D.C. 2012) (disclaiming reliance on expert report). And that expert report concluded, contrary to Plaintiffs’ argument, that preambles without the tagline attracted about as much viewer attention and were nearly as credible as preambles with the tagline. Dkt. No. 58751, ¶¶ 217-18.

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Next, Plaintiffs appeal to extra-record secondary sources, such as a graduation speech by the First Lady. Gov. Br. 22-23; Interv. Br. 23. But even Plaintiffs admit that these sources show only that the tagline “can” comply with RICO, not that it “does” comply with RICO. Gov. Br. 22; Interv. Br. 24. And all of Plaintiffs’ sources treat the “Here is the truth” tagline in isolation from the other elements of the preambles, Gov. Br. 21-22, and, in some cases, treat only the words “the truth” in the tagline, Interv. Br. 22-23.

Indeed, Plaintiffs’ cherrypicking confirms that the tagline conveys a message of correcting past misinformation. The Government primarily relies on an excerpt from this passage of the First Lady’s recent graduation speech:

And the first thing we have to do is vote. (Applause.) Hey, no, not just once in a while. Not just when my husband or somebody you like is on the ballot. But in every election at every level, all of the time. (Applause.) Because here is the truth—if you want to have a say in your community, if you truly want the power to control your own destiny, then you’ve got to be involved.

Gov. Br. 22. But the clear inference from this passage is that, contrary to what one hears about voting “once in a while,” “you’ve got to be involved.”4 In any event, two can play this game: numerous sources support the Manufacturers’ argument that placing the tagline near a reference to a particular speaker fosters the inference

4 Plaintiffs’ two-hundred-year-old secondary sources are wholly inapposite because they use the old elocution “The truth is, that . . .” or refer to a metaphysical, “self-evident” “truth.” Gov. Br. n.5.

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that the speaker played a role in causing misinformation. E.g., Ben Geman, Al Gore Calls for ‘Bold Action’ From Obama on Climate, The Hill, p.12 (June 23,
2011) (criticizing “opponents of the President” who hide from “reality” by stating “Here is the truth: The Earth is round; Saddam Hussein did not attack us on 9/11; Elvis is dead; Obama was born in the United States; and the climate crisis is real.”); Roy Greenslade, Here’s the truth: ‘fake news’ is not social media’s fault, The Guardian (Nov. 23, 2016), goo.gl/A6Wn4A; Lynn Stuart Parramore, Everything You’ve Been Told About Personal Finance is Dead Wrong—Here’s the Truth, Alternet (Mar. 5, 2013), goo.gl/egkhPm; Adam Hadhazy, Here’s the Truth About the ‘Planned Obsolescence’ of Tech, BBC (June 12, 2016), goo.gl/skwDCg; Lisa Spayd, Here’s the Truth About ‘False Balance,’ N.Y. Times, S12 (Sept. 11, 2016); Musamaali Nangoli, No More Lies About Africa: Here’s the Truth from an African (2001); Javier Colon, Ok, Here’s the Truth, Come Through for You (2011) (“Okay here’s the truth/ It’s not what you think/ The man that you heard is head of oncology/ I’m sorry I lied/ To you all of those times.”).

In short, there can be little question that the “Here is the Truth” tagline is intended to taint Defendants with their past conduct. Indeed, if this is not its clear import, it is impossible to understand why Plaintiffs would be so insistent on retaining it rather than proceeding with the Manufacturers’ proposal without delay.

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2. The Different Language For ITG Brands Conveys Defendants’ Past Misconduct.

Plaintiffs have never opposed—indeed, they included in their proposal on remand—and the district court permitted language allowing ITG Brands to clarify that it was not “ordered” to proclaim “Here is the truth” by making clear that the court’s order and the “Here is the truth” tagline apply to “the previous maker” of the brand in question. Op. Br. 35; Dkt. No. 6143, at 12-13. That clarification confirms that the revised preambles highlight past misconduct, because the only difference between ITG Brands and Defendants relevant here is Defendants’ past conduct.

The Government concedes that the ITG Brands language was inserted in order to clarify that ITG Brands was not a Defendant found liable for past RICO violations, but argues that the modified language for ITG Brands “simply preserve[s] the accuracy” of the references “to some of Defendants’ past actions regarding nicotine manipulation.” Gov. Br. 33. But references to nicotine manipulation appear in the bullet points of only two statements while the differentiating language for ITG Brands is necessary in, and appears in, the revised preambles of all five statements. JA1101-03. The unmistakable inference of Defendants’ past misconduct in comparison to ITG Brands is thus not limited to nicotine manipulation.

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3. The District Court’s Rejection Of The Manufacturers’ Proposal Confirms That The Preambles Convey Past Misconduct.

A comparison of the Government’s proposal and the Manufacturers’ proposal, which tracks earlier proposals by Plaintiffs, shows that the only difference between the Manufacturers’ proposal and the Government’s proposal is that the Government’s proposal conveys past misconduct. Consequently, the only reason to prefer the Government’s proposal is to taint Defendants.

Plaintiffs do not contest this point. Nor could they. After all, had they agreed to the Manufacturers’ proposed preambles, this issue would be resolved and the corrective-statements remedy would already be implemented. Instead, Plaintiffs attack a straw man, arguing that the district court has discretion to choose among permissible preambles. Gov. Br. 24-25; Interv. Br. 17-19. But that simply ignores the Manufacturers’ argument that a comparison of the proposals shows that the only difference is that one impermissibly conveys wrongdoing. And that is the only plausible conclusion of a comparison: Instead of stating that “a federal court has determined that you should know the following” information “paid for by [Defendants]” under “court order,” the district court’s preambles state that “[a] Federal Court has ordered [Defendants] to make this statement” and proclaim “Here is the truth.” Op. Br. 38-40.

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C. The Manufacturers Are Not Foreclosed From Raising Any Of Their Challenges To The Revised Preambles.

Perhaps recognizing their weakness on the merits, Plaintiffs urge that the Manufacturers are foreclosed from challenging several aspects of the revised preambles. They are incorrect.

1. The Manufacturers May Challenge The Language That “A Federal Court Has Ordered” Defendants To Make The Corrective Statements.

Plaintiffs do not dispute that the phrase “a Federal Court has ordered” Defendants to make this statement indicates that Defendants are being compelled to make statements redressing past misconduct. See Roth, 642 F.3d at 1181. Instead, Plaintiffs argue that the Manufacturers cannot challenge this language, which they misleadingly characterize as “court attribution” language, because Defendants “did not appeal this language previously” in the Corrective Statements Decision. Gov. Br. 28-29; Interv. Br. 25-26.

But, as the Manufacturers explained in their opening brief, Defendants challenged the entire preambles in the Corrective Statements Decision. Op. Br. Part I.A; Defs. Op. Br. 53-55. That challenge explicitly included a challenge to the language “a Federal Court has ordered” Defendants to speak. E.g., Defs.’ Op. Br. 45 (“Indeed, the Government’s own expert report submitted in support of its proposed corrective statements indicated that prefatory language attributing the statements to the Surgeon General and the National Cancer Institute attracted

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almost as much viewer attention, and was seen as being nearly as credible, as confessional prefatory language.”) (emphasis added); Defs. Reply Br. 6 (“The preambles to each of the district court’s compelled statements require Defendants to confess that they ‘deliberately deceived the American public’ and are now being ordered to tell ‘the truth.’”) (emphasis added).

This Court likewise understood Defendants to be challenging the “Federal Court has ordered” language. This Court held that Defendants were challenging the “preamble,” where “[e]ach preamble announces that ‘a Federal Court has’ . . . . ‘ordered [Defendants] to make this statement.’” 801 F.3d at 261; see JA533 (defining “preamble”).

The proceedings in the district court on remand, moreover, confirm this understanding. There, the Government never argued that Defendants had waived this point by failing to raise it in the Corrective Statements Decision. JA803-10. Intervenors conceded that this Court had the issue before it. JA775. And the district court addressed the Manufacturers’ objections on the merits. JA924.

Next, the Government argues that Defendants “affirmatively invited such language or failed to object to it” in the district court. Gov. Br. 29-30; Interv. Br. 25-26. But every instance of Defendants’ supposedly contrary position in the district court involves proposals for a footer indicating that the statements are issued “pursuant to a Court Order.” JA219-21; see JA91, 138, 348, 355, 417-19.

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This formulation is manifestly different from the language in the revised preambles. Indeed, the Government itself hesitated to equate the two formulations when Defendants and Intervenors proposed them, stating that an expert study was necessary to “gauge their impact on the consuming public.” JA364. Just as the Government would not have waived a challenge to placing a reference to “the truth” in a footer by proposing the revised preambles, so the Manufacturers have not waived a challenge to placing “ordered” language in the preambles by proposing “court order” language in a footer.

2. The Manufacturers May Argue That The Different Language For ITG Brands Conveys Defendants’ Past Misconduct.

Plaintiffs argue that the Manufacturers are “estopped” from relying on Plaintiffs’ agreement and the district court’s decision to permit ITG Brands to use specific language in the preambles distinguishing itself from Defendants. Gov. Br. 30-32; Interv. Br. n.8. But the Manufacturers are not challenging the ITG Brands language in the revised preambles. Instead, they are arguing that the necessity of including that language confirms the unlawful meaning of the revised preambles as to Defendants. As the Government’s own quotation demonstrates, the Manufacturers have consistently argued or agreed that different language is necessary precisely “to reflect that ITG Brands . . . was not found liable.” Gov. Br. 31 (quoting Dkt. No. 6143, at 12-13). Based on that position, the district court has

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twice permitted ITG Brands-specific language, while Plaintiffs have not opposed such language, and indeed reiterated it in their own proposal. Dkt. No. 6143, at 12-13; JA570, 601 n.2. The Manufacturers’ recent statement that different language is “necessary” for ITG Brands to contrast with the message of Defendants’ past misconduct is thus the exact opposite of inconsistency, see id., and thus they are not “estopped,” see New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

Plaintiffs also assert that the Manufacturers are somehow reneging on a representation to the district court that the joinder would not affect the corrective- statements remedy. Id. But the Manufacturers represented that the joinder would not affect the scope of publication, and it does not. Dkt. No. 6152, at 7-8. The Manufacturers did not represent that the text would never change. Indeed, the district court’s order permitting joinder expressly recognized the pendency of the Corrective Statements Decision and that the text was subject to change. JA578-79. More fundamentally, the joinder would not have required ITG Brands-specific language if the preambles as then written were not already impermissibly backward-looking, nor would that language be required in the revised preambles if the revisions were not still impermissibly focused on Defendants’ misconduct.

Finally, the Government professes uncertainty as to “how the Manufacturers propose to remedy the alleged inference raised by” the different language. Gov.

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Br. 33. This misses the point—the Manufacturers do not challenge the ITG Brands language itself, but rather argue that the necessity of including it in the revised preambles shows they focus impermissibly on Defendants’ past misconduct. Moreover, the Manufacturers did suggest a remedy, explaining how the corrective statements can be modified to comply with RICO in a manner that does not necessitate language distinguishing ITG Brands, in the very brief the Government quoted, Gov. Br. 32; Dkt. No. 6177, at 1.

3. The Manufacturers May Challenge The Formulations Of Topics (C) And (D).

Plaintiffs do not dispute that the formulations of topics (C) and (D) are backward-looking. See Roth, 642 F.3d at 1181. Instead, they argue that any challenge to these formulations is “foreclosed” because such challenges already were “largely rejected” or the “chance” to appeal passed. Gov. Br. 26, 28; Interv. Br. n.8.

This argument rests on a misreading of the Corrective Statements Decision and a misunderstanding of the Manufacturers’ argument. In the Corrective Statements Decision, Defendants successfully challenged the entire preambles, including the preambles for statements (C) and (D), and, separately, unsuccessfully challenged particular bullet points in particular statements, including statements (B) and (D). Here, the Manufacturers are challenging the preambles, and thus cannot be “foreclosed” by an unsuccessful challenge to the bullet points.

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The Government also suggests that the Manufacturers’ challenge to statements (C) and (D) is foreclosed because those statements do not go “beyond” the language contemplated in the 2006 remedial order. Gov. Br. 27-28; 801 F.3d at 259. But the district court’s description of statement (C) in 2006 discussed only products, specifically, “the lack of any significant health benefit from smoking ‘low tar,’ ‘light,’ ‘ultra light,’ ‘mild,’ and ‘natural’ cigarettes.” United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 938-39 (D.D.C. 2006). The new topic description, by contrast, states that Defendants were wrongly “selling and advertising low tar and light cigarettes as less harmful than regular cigarettes” when “the truth” was, as the bullet points state, “[t]hey are not.” JA1101-03. And the same is true for statement (D). The topic description “about designing cigarettes to enhance the delivery of nicotine” paired with the bullet point that these designs “make them more addictive” and are “why quitting is so hard” is “beyond” that of the 2006 remedial order’s topic description of “Defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery.” Compare JA1101-03 with 449 F. Supp. 2d at 938-39 (emphases added).

* * *

The district court’s vacated original preambles “reveal[ed] nothing about cigarettes.” The revised preambles suffer the same flaw and should be vacated.

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II. The District Court’s Revised Corrective Statements Violate This Court’s 2009 Mandate And The First Amendment.

This Court repeatedly has held the corrective statements must comply with the First Amendment. Corrective Statements Decision, 801 F.3d at 261. The revised preambles do not do so.

A. The Revised Preambles Do Not Satisfy Zauderer And Therefore Violate This Court’s Mandate.

This Court ordered the district court to craft corrective statements of “purely factual and uncontroversial” information, invoking the Supreme Court’s Zauderer test for certain compelled commercial disclosures. 2009 Opinion, 566 F.3d at 1140, 1143-44; see Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The revised preambles do not satisfy this mandate, as informed by this Court’s subsequent Zauderer case law, because they convey information that is about conduct, that is inaccurate, ambiguous, and emotional, that is morally accusatory and one-sided, and that is unnecessary. See NAM, 800 F.3d at 524-26; Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 26 (D.C. Cir.
2014) (en banc) (“AMI”); R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1216 (D.C. Cir. 2012) (“RJRT”).

Plaintiffs do not contest that the corrective statements must conform to Zauderer and that the district court’s Zauderer reasoning was flawed. Instead, they take the startling position that, notwithstanding this Court’s mandate, no First

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Amendment analysis of the revised preambles is necessary. They also argue that Zauderer’s requirements are satisfied. Both arguments are wrong.

1. Contrary To Plaintiffs’ Argument, First Amendment Analysis Must Be Conducted In This Case.

According to Plaintiffs, “there are no First Amendment issues left unresolved in this case,” because this Court’s 2009 Opinion “already held that corrective-statement text appropriately crafted to prevent and restrain future RICO violations by [Defendants] is consistent with the First Amendment.” Gov. Br. 36. This is clearly wrong.

First, this Court repeatedly has treated “statutory” RICO claims differently than “constitutional” First Amendment claims. In the Corrective Statements Decision, for example, Defendants “contend[ed] that the corrective statements exceed the district court’s remedial authority under RICO and violate the First Amendment.” 801 F.3d at 256. This Court stated that it would “begin, as usual, with the statutory challenge,” and “end there,” citing the ordinary principle that courts avoid resolving constitutional issues whenever possible. Id. This statement would make no sense if the “constitutional” and “statutory” issues were identical.

Elsewhere in the opinion, this Court followed the same course. Defendants challenged the bullet points in statements (B) and (D) on both RICO and First Amendment grounds. This Court held that it already had addressed the RICO challenge to the bullet points in 2009 when it approved topics with similar

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language. Id. On Plaintiffs’ theory, Defendants’ First Amendment challenge to the bullet points should have received the same treatment. Instead, this Court undertook a separate First Amendment analysis, holding that Defendants waived any First Amendment claim because they did not challenge statements (B) and (D) on any ground—“statutory or constitutional”—in 2009. Id. Similarly, this Court did not once mention the First Amendment in explaining the jurisdictional limits of RICO, e.g., id. at 256-57, and did not mention RICO in its consideration of the First Amendment challenge to the bullet points regarding filtered cigarettes, id. at
260. This pattern of separate analyses dates back to the 2009 Opinion. 566 F.3d at 1139-40 (RICO challenge), 1142-45 (First Amendment).

Second, and in any event, Plaintiffs’ argument wrongly equates RICO’s jurisdictional limitations and First Amendment protections. As Plaintiffs do not dispute, the district court’s jurisdiction under RICO restricts corrective statements to “forward-looking” communications about Defendants’ “products.” Op. Br. 29; Gov. Br. 18-19. By contrast, and also as Plaintiffs nowhere contest, the First Amendment requires limiting the corrective statements to furthering a significant government interest by conveying “purely factual and uncontroversial” information that is about “products” and is not “unduly burdensome.” Op. Br. 45-56. This Court’s decisions establish that to comply with these Zauderer requirements the corrective statements must be limited to information that

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“relate[s] to the good or service offered,” AMI, 760 F.3d at 26, that is “accurate,” unambiguous, and unemotional, RJRT, 696 F.3d at 1216, that is free of moral innuendo, AMI, 760 F.3d at 27, and that is “necessary,” NAM, 800 F.3d at 524-26. These factors obviously differ significantly from the restrictions imposed by RICO.

Finally, the district court and the parties have long understood that RICO and the First Amendment are not co-extensive. The district court twice separately considered whether the text of the corrective statements comports with RICO and the First Amendment. Compare JA469 with JA481; compare JA923 with JA925. Indeed, Plaintiffs each briefed these claims separately. See JA799-810, 812-13; JA627-28, 630-31.

In support of their novel position, Plaintiffs cite rearranged excerpts from the 2009 Opinion and the Corrective Statements Decision. Plaintiffs first appeal to the 2009 Opinion’s statement that “the [district] court must confine the statements to ‘purely factual and uncontroversial information,’ [citing Zauderer], geared towards thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers’ existing misperceptions” and that if “the corrective advertising once drafted meets these requirements, it is a permissible restraint on Defendants’ commercial speech.” 566 F.3d at 1144-45; see Gov. Br. 34; Interv. Br. 27-28. But this passage simply lays out two “requirements” of Zauderer: (1)

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“purely factual and uncontroversial” disclosures that are (2) “geared towards” a “substantial government interest,” which, in a case where jurisdiction is limited by RICO, is “thwarting prospective RICO violations.” 566 F.3d at 1144. It does not say, as the Government asserts, that compelled speech satisfying the second, RICO-informed requirement necessarily will satisfy the first requirement. Indeed, by incorporating RICO only into the “substantial government interest” portion of the Zauderer test, this Court confirmed that RICO does not play a role in the “purely factual and uncontroversial” aspect of Zauderer.

Plaintiffs’ snippets of the Corrective Statements Decision are no more helpful to their argument. They quote this Court’s snappy application of the rule of constitutional avoidance and its conclusion that “thorny” First Amendment questions already were resolved. Gov. Br. 35 (quoting 801 F.3d 254, 256); Interv. Br. 28. But these statements merely foreshadow the Court’s ultimate holding that one of Defendants’ specific objections—namely, their First Amendment challenge to the bullet points—was “waived and foreclosed,” another—namely, their RICO challenge to the preambles—was meritorious, and a third—namely, their First Amendment challenge to the preambles—did not need to be addressed. 801 F.3d at 252. This obviously says nothing about whether the same standard applies under RICO and the First Amendment. The Government next appeals to this Court’s comment on the 2009 Opinion. Gov. Br. 35. But these quotations are part

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of this Court’s discussion of procedural history regarding the corrective-statements “remedy,” not the corrective-statements text. 801 F.3d at 254. They clearly are not a holding. Indeed, the Government’s reading of these snippets is flatly contrary to an actual holding, where this Court separately analyzed RICO and First Amendment claims. Id. at 260 (examining text about filtered cigarettes under Zauderer).

2. The Revised Preambles Violate Zauderer.

Plaintiffs’ limited defense of the revised preambles under Zauderer is flawed.

Plaintiffs first argue that the Manufacturers’ Zauderer claim is “mainly a recapitulation” of their RICO argument. Interv. Br. 32; Gov. Br. 37. But the Manufacturers argue that even if the revised preambles concern products instead of past misconduct, they violate Zauderer because they “may be misinterpreted” (and thus are not “factual”), they “use the unambiguously moral phrase ‘the truth’” and are “one-sided” in light of contrary case law (and thus are “controversial”), and they are “unnecessary” in light of the Manufacturers’ equally-effective alternative (and thus are “unduly burdensome”). Op. Br. 51-54.

Plaintiffs also argue that “[e]ach line of the corrective statements is firmly rooted in the district court’s factual findings.” Gov. Br. 37; Interv. Br. 30-31. But that misunderstands that the Manufacturers here challenge the preambles, not the

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bullet points: there is, for example, no “factual finding” supporting the phrase “Here is the truth.” Indeed, the Government elsewhere admits that the tagline is not “factual” under Zauderer. In attempting to justify the tagline under RICO, the Government argues that the tagline “can” be interpreted to underscore accuracy. Gov. Br. 22. This is nothing other than a concession that the tagline “can” be interpreted otherwise, in violation of Zauderer. See RJRT, 696 F.3d at 1216.

The Government argues that the Manufacturers are “incorrect” that “other courts have found facts in conflict” with the district court. But it cites only the district court’s decision, Gov. Br. n.11 (citing JA493), which is contrary to two subsequent federal rulings. E.g., Shaffer v. R.J. Reynolds Tobacco Co., 860 F. Supp. 2d 991, 996 (D. Ariz. 2012); Pooshs v. Philip Morris USA, Inc., 904 F. Supp. 2d 1009, 1034 (N.D. Cal. 2012); see Aspinall v. Philip Morris Cos., No. 986002- H, 2012 WL 3627421, at *4 (Mass. Super. Mar. 14, 2012) (collecting federal and state authorities).

Intervenors, for their part, attempt to transform Zauderer into a “minimal” requirement that the Government show, without any need for evidence or consideration of alternatives, that its disclosure is “reasonably related” to the Government’s interest. Interv. Br. 29 & n.11, 30-32. But, as this Court explained at length in NAM, Plaintiffs’ Zauderer burden “is not slight,” Ibanez v. Fla. Dep’t of Bus & Prof’l Regulation, 512 U.S. 136, 143 (1994), is not satisfied with

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“speculation and conjecture,” NAM, 800 F.3d at 524-26, and requires proof that disclosures are “purely factual and uncontroversial” and not “unduly burdensome,” 2009 Opinion, 566 F.3d at 1140; see Ibanez, 512 U.S. at 146-47 (rejecting disclaimer as “currently” imposed because of amount of “detail required”); Op. Br. 43-57. Intervenors tellingly offer no argument under the proper standard.

B. The Revised Preambles To The Corrective Statements Violate The First Amendment Under Central Hudson.

The revised preambles violate not only this Court’s mandate to conform the corrective statements to Zauderer, but also the First Amendment requirements established by Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Central Hudson applies to the revised preambles because they are unconnected to voluntary advertising or labeling at the point of sale. See NAM, 800 F.3d at 522-23. The revised preambles do not satisfy Central Hudson because they are “more extensive than is necessary” in light of the Manufacturers’ equally-effective alternative. 447 U.S. at 566.

Plaintiffs do not argue that the Manufacturers may not raise a Central Hudson claim. See Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014). Plaintiffs also admit that this Court’s precedents require applying Central Hudson to disclosures “unconnected to advertising.” Gov. Br. 38 (quoting NAM, 800 F.3d at
522); Interv. Br. 34-35. And they never argue that the revised preambles are more effective than the Manufacturers’ proposed alternative. Gov. Br. 37-38; Interv. Br.

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35-36. Plaintiffs thus rest their entire Central Hudson response on the argument that the revised preambles are connected to advertising.

To support that argument, Plaintiffs state that “this Court previously explained that the corrective-statement[s] remedy in this case was appropriate precisely because of Defendants’ prior false advertising,” citing the 2009 Opinion’s analysis that the corrective-statements remedy is “adequately tailored.” Gov. Br. 38; Interv. Br. n.12. But this passage could not possibly support an argument that Central Hudson does not apply. The 2009 Opinion explicitly did not decide between Central Hudson and Zauderer when conducting the “adequate tailoring” analysis that the Government cites. 566 F.3d at 1143. Nor did the 2009 Opinion hold that the corrective statements were connected to voluntary advertising. Quite the contrary, it notably did not reject Defendants’ argument that the corrective statements “are not attached to advertisements.” Id. at 1142-43.

Next, Plaintiffs asserts that NAM “could not have overruled” this Court’s earlier decisions. Gov. Br. 37-38; Interv. Br. 28, 34. But the Manufacturers do not make that argument, which misreads this Court’s precedents. The 2009 Opinion and Corrective Statements Decision held only that the corrective statements must satisfy Zauderer and left open what would happen if they did not. See Op. Br. 59 n.9. NAM, in applying this Court’s en banc decision in AMI, explained that Zauderer is not satisfied when compelled speech is unconnected to voluntary

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advertising. NAM, 800 F.3d at 522-23. It also explained that when Zauderer is not applicable, Central Hudson applies (at a minimum). Id. NAM and the earlier decisions are thus entirely consistent with each other and with applying Central Hudson here.

* * *

The revised preambles must be analyzed under the First Amendment. They violate the First Amendment under any applicable standard.

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CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s orders setting forth the revised preambles.

Dated: December 22, 2016

Miguel A. Estrada

Amir C. Tayrani

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

Telephone: (202) 955-8257

Facsimile: (202) 530-9016

Counsel for Appellants Philip Morris

USA Inc. and Altria Group, Inc.

Robert J. Brookhiser, Jr.

Elizabeth B. McCallum

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5304

Telephone: (202) 861-1500

Facsimile: (202) 861-1783

Counsel for Post-Judgment Parties

Regarding Remedies ITG Brands, LLC,

Commonwealth Brands, Inc., and

Commonwealth-Altadis, Inc.

Respectfully submitted,

Noel J. Francisco

Michael Murray

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001-2113

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

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as successor to Lorillard Tobacco Company)

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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 6,993 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: December 22, 2016

/s/ Jeffrey A. Mandell

Jeffrey A. Mandell

Counsel for Appellant

R.J. Reynolds Tobacco Company (individually and as successor to Lorillard Tobacco Company) USCA Case #16-5101 Document #1652691 Filed: 12/22/2016 Page 42 of 42

CERTIFICATE OF SERVICE

I certify that on December 22, 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 Lorillard Tobacco Company)

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