USA v PHILIP MORRIS, et. al. #6223: CONSENT MOTION FOR ENTRY OF SECOND SUPERSEDING CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS…
October 3, 2017 11:04 am by Gene BorioThe PDF is Here
EXCERPT:
By contrast, the present (proposed) Newspaper and TV Consent Order provides that if the Court adopts the (proposed) Newspaper and TV Order without modification, then the tobacco companies will not challenge that Order on appeal, and the specific implementation executions for newspapers and television will commence on the schedule specified in that Order. . . . The paragraph goes on to provide that if the District Court should modify any term or requirement, no party waives or abandons any appeal or appellate rights or argument, and the parties reserve the right to seek different requirements than those stated in the (proposed) Newspaper and TV Consent Order. Id.
The parties respectfully request the Court’s prompt review of the (proposed) Newspaper and TV Consent Order, and—if the Court finds it acceptable—prompt entry as an Order, no later than Friday, October 13, 2017.
END EXCERPT
FULL TEXT:
Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 1 of 6
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, ) Civil Action No. 99-CV-2496 (PLF)
v.
PHILIP MORRIS USA INC., et al.,
Defendants.
CONSENT MOTION FOR ENTRY OF SECOND SUPERSEDING CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS REMEDY FOR NEWSPAPERS AND TELEVISION
In Order #70-Remand (Dkt. No. 6222; issued September 25, 2017), the Court directed the parties to submit by today’s date a (proposed) consent order to implement the Corrective Statement remedy; or, failing that, a further status report addressing the particular matters yet to be resolved.
The parties now report that they have reached agreement for the Corrective Statements remedy to begin on a date certain in two media channels—namely, newspaper and television— and respectfully ask the Court to review and, if acceptable, promptly enter the attached (proposed) Consent Order Implementing the Corrective Statements Remedy For Newspapers and Television (the “(proposed) Newspaper and TV Consent Order”).1 If the Court approves the
1 The parties are the United States and Public Health Intervenors (collectively “Plaintiffs”); Philip Morris USA Inc., Altria Group, Inc., and R.J. Reynolds Tobacco Company (individually, as successor in interest to Brown & Williamson Tobacco Corporation, and as successor to Lorillard Tobacco Company) (collectively “Defendants”); and ITG Brands, LLC, Commonwealth Brands, Inc., and Commonwealth-Altadis, Inc. (collectively “Remedies Parties”).
Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 2 of 6
(proposed) Newspaper and TV Consent Order in the form proposed, and enters it by Friday, October 13, 2017, the Corrective Statements will generally begin to appear in newspapers Sunday, November 26, and on television the following week. If the Court requires more time to review and enter the proposal, the start date would come some weeks later, as calculated by a formula in the (proposed) Newspaper and TV Consent Order.
A. Media channels The attached (proposed) Newspaper and TV Consent Order addresses two of the four media channels at issue:
1. Newspapers. The parties’ two most recent Status Reports (Dkt. No. 6214, filed Aug. 11, 2017; Dkt. No. 6220, filed Sept. 11, 2017) reported that the parties had reached agreement on newspaper mockups, both print and online, and were seeking agreements on replacements for two small newspapers that had gone out of print since previous consent orders. The attached (proposed) consent order now includes agreed replacements for those papers.
2. Television. The two most recent Status Report also advised that the United States had provided TV spot mockups, and that the Defendants were considering them. Defendants have now approved those TV mockups.
3. Onserts and company websites. As discussed in more detail in a further Status Report being filed concurrently, the parties continue working toward agreement on mockups for the other media channels at issue—onserts and company websites. While that work continues, today’s Consent Motion is meant to provide a date certain for the statements to begin in the newspaper and television media channels where full agreement has been reached.
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B. Spanish text
The parties have reached agreement on the Spanish text, in accord with the estimated timeline set out in the parties’ September 11, 2017, Status Report.
C. English text
The present (proposed) Newspaper and TV Consent Order incorporates the language approved by the District Court in the memorandum opinions accompanying Order #62-Remand and Order #67-Remand, on remand from the D.C. Circuit’s ruling in United States v. Philip Morris USA Inc., 855 F.3d 321 (D.C. Cir. 2017).
The (proposed) Consent Orders that the parties previously filed and that the Court previously entered, in 2014 and 2016, were consensual as to implementation details (such as font, type, and layout), but subject to the tobacco companies’ objections to the Court-ordered text. Moreover, those prior Consent Orders expressly reserved the tobacco companies’ right to appeal from the statement text.
By contrast, the present (proposed) Newspaper and TV Consent Order provides that if the Court adopts the (proposed) Newspaper and TV Order without modification, then the tobacco companies will not challenge that Order on appeal, and the specific implementation executions for newspapers and television will commence on the schedule specified in that Order. (Proposed) Newspaper and TV Consent Order, ¶ IV(4), at 13. The paragraph goes on to provide that if the District Court should modify any term or requirement, no party waives or abandons any appeal or appellate rights or argument, and the parties reserve the right to seek different requirements than those stated in the (proposed) Newspaper and TV Consent Order. Id.
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Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 4 of 6
The parties respectfully request the Court’s prompt review of the (proposed) Newspaper and TV Consent Order, and—if the Court finds it acceptable—prompt entry as an Order, no later than Friday, October 13, 2017.
Dated: October 2, 2017 Respectfully submitted,
JILL FURMAN, Deputy Director
ANDREW CLARK, Assistant Director
Consumer Protection Branch
___/s/_____________________________
DANIEL K. CRANE-HIRSCH
Trial Attorney
Civil Division
United States Department of Justice
PO Box 386
Washington, DC 20044-0386
Telephone: 202-616-8242 (Crane-Hirsch)
Facsimile: 202-514-8742
Attorneys for Plaintiff United States of
America
____/s/_____________
Katherine A. Meyer (D.C. Bar 244301)
MEYER GLITZENSTEIN & EUBANKS
LLC
4115 Wisconsin Ave., N.W. Suite 210
Washington, DC 20016
202-588-5206
Attorney for the Public Health Plaintiff-
Intervenors
/s/ Anand Agneshwar
Anand Agneshwar
ARNOLD & PORTER KAYE SCHOLER
LLP
250 West 55th Street
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Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 5 of 6
New York, NY 10019-9710
Telephone: (212) 836-8011
Fax: (212) 836-8689
Miguel A. Estrada (D.C. Bar No. 456289)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
Telephone: (202) 955-8257
Fax: (202) 530-9016
Attorneys for Defendants Altria Group, Inc.
and Philip Morris USA Inc.
____/s/_____________
Peter J. Biersteker (D.C. Bar No. 358108)
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Fax: (202) 626-1700
Jeffrey A. Mandell (D.C. Bar No. 999791)
STAFFORD ROSENBAUM LLP
222 West Washington Avenue, Suite 900
Madison, Wisconsin 53703
Telephone: (608) 256-0226
Fax: (608) 259-2600
Geoffrey K. Beach (D.C. Bar No. 439763)
WOMBLE CARLYLE SANDRIDGE &
RICE, LLP
One West Fourth Street
Winston-Salem, NC 27101
Telephone: (336) 721-3600
Fax: (336) 721-3660
Attorneys for Defendant R.J. Reynolds
Tobacco Company (individually, as
successor in interest to Brown & Williamson
Tobacco Corporation, and as successor to
Lorillard Tobacco Company)
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____/s/_____________
Robert J. Brookhiser, Jr. (D.C. Bar No.
202168)
Elizabeth B. McCallum (D.C. Bar No.
451361)
BAKER & HOSTETLER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5304
Telephone: (202) 861-1500
Fax: (202) 861-1783
Attorneys for Post-Judgment Parties
Regarding Remedies ITG Brands, LLC,
Commonwealth Brands, Inc. and
Commonwealth-Altadis, Inc.
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