USA v PHILIP MORRIS, et. al. #6257: CONSENT MOTION FOR ENTRY OF THIRD SUPERSEDING CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS REMEDY FOR WEBSITES AND ONSERTS, Apr 26, 2018

April 26, 2018 2:02 pm by Gene Borio

The PDF is Here

EXCERPT:

The parties have reached agreement for the Corrective Statements remedy to begin on dates certain in two media channels—namely, websites and package “onserts”—and respectfully ask the Court to review and, if acceptable, promptly enter the attached (proposed) Consent Order Implementing the Corrective Statements Remedy For Websites and Onserts (the “(proposed) Website and Onsert Consent Order”).

END EXCERPT

FULL TEXT:

Case 1:99-cv-02496-PLF Document 6257 Filed 04/26/18 Page 1 of 5

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-CV-2496 (PLF)

CONSENT MOTION FOR ENTRY OF THIRD SUPERSEDING CONSENT ORDER IMPLEMENTING THE CORRECTIVE STATEMENTS REMEDY FOR WEBSITES AND ONSERTS

The parties have reached agreement for the Corrective Statements remedy to begin on dates certain in two media channels—namely, websites and package “onserts”—and respectfully ask the Court to review and, if acceptable, promptly enter the attached (proposed) Consent Order Implementing the Corrective Statements Remedy For Websites and Onserts (the “(proposed) Website and Onsert Consent Order”).1

The (proposed) Order would resolve the third and fourth of the four media channels at issue on remand from the D.C. Circuit’s most recent decision, United States v. Philip Morris USA Inc., 855 F.3d 321 (D.C. Cir. 2017). The (proposed) Order will not resolve the point-of- sale media channel vacated and remanded in United States v. Philip Morris USA Inc., 566 F.3d

—–

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 6257 Filed 04/26/18 Page 2 of 5

1095, 1141-42 (D.C. Cir. 2009) (per curiam), cert. denied, 561 U.S. 1025 (2010).

If the Court approves the (proposed) Website and Onsert Consent Order in the form proposed, and enters it by Friday, May 11, 2018, the Corrective Statements will begin to appear on covered websites by Monday, June 18, 2018, and on package “onserts” by Wednesday, November 21, 2018. 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) Website and Onsert Consent Order.

The (proposed) Consent Orders that the parties previously filed in 2014 and 2016 and that the Court subsequently entered were consensual as to implementation details (such as font, type, and layout), but subject to the tobacco companies’ objections to the Court-ordered text. Those 2014 and 2016 Consent Orders also expressly reserved the tobacco companies’ right to appeal from the statement text.

By contrast, the present (proposed) Website and Onsert Consent Order provides that if the Court adopts the (proposed) Website and Onsert Order without modification, then the tobacco companies will not challenge that Order on appeal, and the specific implementation executions for websites and onserts will commence on the schedule specified in that Order. (Proposed) Website and Onsert Consent Order, ¶ IV(4), at 26. The (proposed) Order also provides 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) Website and Onsert Consent Order. Id.

The parties respectfully request the Court’s prompt review of the (proposed) Website and Onsert Consent Order, and—if the Court finds it acceptable—prompt entry as an Order, no later than Friday, May 11, 2018.

2

Case 1:99-cv-02496-PLF Document 6257 Filed 04/26/18 Page 3 of 5

Dated: April 26, 2018 Respectfully submitted,

GUSTAV W. EYLER, Acting 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

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.

3

Case 1:99-cv-02496-PLF Document 6257 Filed 04/26/18 Page 4 of 5

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)

____/s/_____________

Robert J. Brookhiser, Jr. (D.C. Bar No.

202168)

4

Case 1:99-cv-02496-PLF Document 6257 Filed 04/26/18 Page 5 of 5

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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