USA v PHILIP MORRIS, et. al.: UNITED STATES’ MEMORANDUM IN RESPONSE TO ORDER #65-REMAND, Jan 17, 2017

January 17, 2017 7:28 pm by Gene Borio

The PDF is Here

EXCERPT:

This Court directed the parties to submit their positions by January 17, 2017, and set a status conference for January 31, 2017. . .

The United States agrees with the tobacco companies’ explanation about why the Court of Appeals’ recent decision raises no issues for this Court or the parties to address at the January 31 status conference.

But contrary to the tobacco companies’ suggestion that the status conference be canceled, the United States respectfully suggests that the opportunity be used to address the portion of the D.C. Circuit’s earlier remand, from the merits appeal, concerning the point-of-sale media channel for disseminating the corrective statements.

END EXCERPT

FULL TEXT:

Case 1:99-cv-02496-GK Document 6203 Filed 01/17/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, et al.,

Intervenor-Plaintiffs,

v.

PHILIP MORRIS USA INC., et al.,

Defendants,

and

ITG BRANDS LLC, et al.,

Post-Judgment Intervenors as to Remedies.

Civil No. 99-CV-02496 (GK)

Next scheduled court appearance:

January 31, 2017

UNITED STATES’ MEMORANDUM IN RESPONSE TO ORDER #65-REMAND

The D.C. Circuit Court of Appeals recently affirmed this Court’s holding that R.J. Reynolds Tobacco (RJRT) is to run a set of corrective-statement TV spots in its capacity as successor to the tobacco operations of Brown & Williamson Tobacco (as well as TV spots in other capacities that RJRT did not dispute). United States v. Philip Morris USA, Inc., No. 155210 (D.C. Cir. Nov. 1, 2016). This Court directed the parties to submit their positions by January 17, 2017, and set a status conference for January 31, 2017. Order #65-Remand (Dkt. No. 6201; issued Jan. 3, 2017).

The United States agrees with the tobacco companies’ explanation about why the Court of Appeals’ recent decision raises no issues for this Court or the parties to address at the January 31 status conference. Mfgrs.’ Mem. of Position (Dkt. No. 6202; filed 1/10/2017).

Case 1:99-cv-02496-GK Document 6203 Filed 01/17/17 Page 2 of 3

But contrary to the tobacco companies’ suggestion that the status conference be canceled, the United States respectfully suggests that the opportunity be used to address the portion of the D.C. Circuit’s earlier remand, from the merits appeal, concerning the point-of-sale media channel for disseminating the corrective statements. In 2006, this Court ordered that the corrective statements would be disseminated via five media channels: newspaper ads, TV spots, package “onserts,” company websites, and retail point-of-sale—the last, by requiring the tobacco companies to change the terms of their retailer-participation program contracts with retailers. United States v. Philip Morris USA Inc., 449 F. Supp. 2d 1, 939-40 (D.D.C. 2006), vacated in relevant part, 566 F.3d 1095 (D.C. Cir. 2009) (per curiam), cert. denied, 561 U.S. 1025 (2010). On appeal, the D.C. Circuit vacated the point-of-sale media channel and remanded “for the district court to make due provision for the rights of innocent third parties.” United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1150 (D.C. Cir. 2009) (per curiam), cert. denied, 561 U.S. 1025 (2010). On remand, this Court solicited briefs from trade groups representing retailers, Order #19-Remand (Dkt. No. 5916; issued Apr. 11, 2011), and received briefs in 2011, from the parties (Dkt. Nos. 5903, 5905-06, 5919, 5921-22) and retailer trade groups (Dkt. Nos. 5933-34). In 2014, the Court received supplemental briefing, again from both the parties (Dkt. Nos. 609798, 6100, 6104-05, 6108) and retailer trade groups (Dkt. Nos. 6096, 6101, 6106-07). The January 31 status conference may provide a helpful opportunity for the parties and Court to take up the topic.

2

Case 1:99-cv-02496-GK Document 6203 Filed 01/17/17 Page 3 of 3

DATED: January 17, 2017

Respectfully submitted,

BENJAMIN MIZER

Principal Deputy Assistant Attorney General

MICHAEL S. BLUME, Director

ANDREW E. CLARK, Assistant Director

Consumer Protection Branch

/s/ Daniel K. Crane-Hirsch

DANIEL K. CRANE-HIRSCH

Trial Attorney

Consumer Protection Branch

U.S. Department of Justice

P.O. Box 386

Washington, DC 20044

(202) 616-8242

daniel.crane-hirsch@usdoj…

3

Leave a Reply

The primary purpose of this site is to provide information in a timely manner. Postings should be informative. The usual rules apply: No libel, no profanity, no personal abuse, keep it on topic, and short.

If you are scheduled as a court witness, CHECK with your lawyer before posting anything here!