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 Borio

The 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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Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 3 of 6

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

daniel.crane-hirsch@usdoj…

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

kmeyer@meyerglitz.com

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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Case 1:99-cv-02496-PLF Document 6223 Filed 10/02/17 Page 6 of 6

____/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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