USA v PHILIP MORRIS, et. al.: MANUFACTURERS’ MEMORANDUM OF POSITION, Jan 10, 2017

January 12, 2017 12:23 am by Gene Borio

The PDF is Here

EXCERPT:

The appellate mandate released on December 29, 2016 arose from Defendant R.J. Reynolds Tobacco Company’s appeal from Order #56-Remand, which denied Reynolds’ motion for relief from this Court’s requirement that Reynolds publish the corrective statements on television on behalf of former-Defendant Brown & Williamson Tobacco Corporation. Accordingly, it is now clear that Defendant R.J. Reynolds Tobacco Company is required to publish three sets of corrective statements on television—one on behalf of Brown & Williamson Tobacco Corporation, one on behalf of itself, and one on behalf of Lorillard Tobacco Company. Following resolution of that appeal, the Manufacturers are not aware of any outstanding issues regarding the number of television spots that Reynolds is required to publish.

In addition to the foregoing, the Manufacturers have separately appealed from Order #62-Remand, which established revised text for the corrective statements and entered a superseding consent order on implementing the corrective-statements remedy, respectfully. In this appeal, the Manufacturers argue, among other things, that the text of the preambles as set forth in Order #62-Remand is contrary to RICO and the First Amendment. Briefing in that appeal concluded in December, and oral argument is scheduled for February 14, 2017.

In light of the foregoing, and absent a material change in circumstances, the Manufacturers respectfully suggest that there is no need for a Status Conference until the resolution of the appeal in Case Nos. 16-5101 & 16-5127.

END EXCERPT

FULL TEXT:

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

UNITED STATES OF AMERICA,

Plaintiff,

v.

PHILIP MORRIS USA INC., et al.,

Defendants.

Civil Action No. 99-2496 (GK)

Next Scheduled Court Date: January 31, 2017 at 10:30 AM

____________________________________

MANUFACTURERS’ MEMORANDUM OF POSITION AS REQUESTED IN ORDER #65-REMAND

Defendants Philip Morris USA Inc., Altria Group, Inc., and R.J. Reynolds Tobacco Company (individually and as successor-by-merger to Lorillard Tobacco Company), jointly with Post-Judgment Parties Regarding Remedies ITG Brands, LLC, Commonwealth Brands, Inc., and Commonwealth-Altadis, Inc. (collectively, “Manufacturers”) submit this memorandum in compliance with Order #65- Remand (Dkt. No. 6201; Jan. 3, 2017). Order #65-Remand notes that the United States Court of Appeals for the D.C. Circuit released a mandate in this case on December 29, 2016. In light of that event, the Order instructed all parties to submit “Memoranda as to what the positions are of the Parties concerned” and set a Status Conference for January 31, 2017.

The appellate mandate released on December 29, 2016 arose from Defendant R.J. Reynolds Tobacco Company’s appeal from Order #56-Remand (Dkt. No. 6151; June 8, 2015), which denied Reynolds’ motion for relief from this Court’s requirement that Reynolds publish the corrective statements on television on behalf of former-Defendant Brown & Williamson Tobacco Corporation. United States v. Philip Morris USA Inc., No. 15-5210 (D.C. Cir. Nov. 1, 2016). Accordingly, it is now clear that Defendant R.J. Reynolds Tobacco Company is required to publish three sets of corrective statements on television—one on behalf of Brown & Williamson Tobacco Corporation, one on behalf of itself, and one on behalf of Lorillard Tobacco Company. Following resolution of that appeal, the Manufacturers are not aware of any outstanding issues regarding the number of television spots that Reynolds is required to publish.

In addition to the foregoing, the Manufacturers have separately appealed from Order #62-Remand (Dkt. No. 6184; Feb. 8, 2016), and Order #64-Remand (Dkt. No. 6195; filed April 19, 2016), which established revised text for the corrective statements and entered a superseding consent order on implementing the corrective-statements remedy, respectfully. See United States v. Philip Morris USA Inc., Nos. 16-5101 & 16-5127. In this appeal, the Manufacturers argue, among other things, that the text of the preambles as set forth in Order #62-Remand is contrary to RICO and the First Amendment. Briefing in that appeal concluded in December, and oral argument is scheduled for February 14, 2017.

In light of the foregoing, and absent a material change in circumstances, the Manufacturers respectfully suggest that there is no need for a Status Conference until the resolution of the appeal in Case Nos. 16-5101 & 16-5127. Of course, should the Court disagree, the Manufacturers will address any additional issues the Court may identify at the currently scheduled status conference.

Dated: January 10, 2017 Respectfully submitted,

/s/ Noel J. Francisco

Miguel A. Estrada

Amir C. Tayrani

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5306

Telephone: (202) 955-8257

Facsimile: (202) 530-9016

Counsel for Defendants Philip Morris USA Inc. and Altria Group, Inc.

Noel J. Francisco

Michael Murray

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001-2113

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Jeffrey A. Mandell

STAFFORD ROSENBAUM LLP

222 West Washington Avenue

Suite 900

Madison, WI 53703

Telephone: (608) 256-0226

Facsimile: (608) 259-2600

Counsel for Defendant R.J. Reynolds Tobacco Company (individually and as successor-by-merger to Lorillard Tobacco Company)

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.

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