USA v PHILIP MORRIS, et. al. #6247: PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ AND REMEDIES PARTIES’ MOTION FOR REFERRAL TO THE SPECIAL MASTER FOR MEDIATION

February 6, 2018 8:00 pm by Gene Borio

The PDF is Here

EXCERPT:

To be sure, Plaintiffs have spent half a year seeking to accommodate the tobacco companies’ asserted desire for certainty. But, contrary to the companies’ efforts to turn Plaintiffs’ accommodation against them, Plaintiffs’ willingness to provide feedback and opine upon mockup design proposals has not somehow made Order #64-Remand unenforceable.

The tobacco companies contend that Order #64-Remand is rendered somehow uncertain —necessitating a new consent order, to be achieved if need be by compelled mediation—because their most recent appeal deletes eight more words from the text. . . . But no one proposes to enforce Order #64-Remand’s superseded text, and the tobacco companies know exactly what the current text is: The text that the Court ordered on remand on June 27, 2017, in Order #67-Remand and its accompanying Memorandum Opinion, and then definitively adopted, both for English and Spanish, in the October 2017 Consent Order as to Newspapers and TV (Order #72-Remand). The tobacco companies offer not even one example of alleged “uncertainty” about compliant ways to present the current Court-ordered text on their websites. . . . Review of the 2014 mockup designs will show that they easily accommodate the shortened text. Indeed, in agreeing to Order #64-Remand in 2016, Defendants had no trouble relying on the 2014 mockup designs —mockups that depicted text that an intervening D.C. Circuit decision had already changed on appeal. The mere fact that the Court of Appeals’ April 17, 2017, decision directed the removal of eight more words does not indefinitely stay implementation of this remedy. On the contrary, the Court of Appeals made clear that, with these “minor revisions,” “the district court can simply issue an order requiring the corrective statements remedy to go forward.” This Court has already done so. Its Order #67-Remand and accompanying opinion from June 27, 2017, set out the new language; and the companies accepted that language, as well as conforming Spanish text, in Order #72-Remand. The surest way to ensure prompt and full website and onsert implementation is to deny the companies’ motion.

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USA v PHILIP MORRIS, et. al. DOCKET 12/15-19/2017

December 19, 2017 8:00 pm by Gene Borio

EXCERPT:

12/19/2017 6237 ORDER granting 6236 the parties’ consent motion for scheduling order and joint status report regarding corrective statements. The parties shall submit on or before January 12, 2018, an agreed upon (proposed) second superseding consent order for websites and onserts. Signed by Judge Paul L. Friedman on December 19, 2017.(lcplf2) (Entered: 12/19/2017)

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USA v PHILIP MORRIS, et. al. #6236: CONSENT MOTION FOR SCHEDULING ORDER AND JOINT STATUS REPORT REGARDING CORRECTIVE STATEMENTS, Dec 15, 2017

December 15, 2017 8:23 pm by Gene Borio

The PDF is Here

EXCERPT:

As to websites, as previously reported, the parties are tentatively exploring having Defendants and the Remedies Parties prepare new company website mockups only for “Phase 1” (years 1 through 5). To date, Defendants and the Remedies Parties have provided Plaintiffs with multiple iterations of website mockups, which Defendants and the Remedies Parties have revised based on Plaintiffs’comments. By Plaintiffs’calculations, Plaintiffs have so far responded to some 38 new mockups. Of these, Plaintiffs have accepted 6 revised website mockups in their entirety, and have agreed in part or conditionally to 4 other mockups (two of which were for the same website). The dispute is largely narrowed to mockups for 5 specific websites for individual cigarette brands. The parties will continue to work diligently to resolve as many outstanding issues as possible by January 11, 2018.

The parties remain committed to implementing the corrective statements remedy for websites and onserts as expeditiously as possible . . .

Accordingly, the parties respectfully move the Court to enter the attached (proposed) scheduling order, requiring the parties to file by January 12, 2018, a (proposed) Consent Order for websites and onserts or a further status report.

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USA v PHILIP MORRIS, et. al. DOCKET 11/17-11/20/17

December 11, 2017 9:02 pm by Gene Borio

EXCERPT:

11/20/2017 6234 ORDER granting 6231 the parties’ consent motion for scheduling order and joint status report regarding corrective statements. The parties shall submit on or before December 15, 2017 an agreed upon (proposed) second superseding consent order for websites and onserts. Signed by Judge Paul L. Friedman on November 20, 2017.

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USA v PHILIP MORRIS, et. al. #6234: ORDER #74 – REMAND

December 11, 2017 8:45 pm by Gene Borio

The PDF is Here

EXCERPT:

Upon consideration of the parties’ Consent Motion for Scheduling Order and Joint Status Report Regarding Corrective Statements, filed November 17, 2017, and the entire record in this matter, it is hereby

ORDERED that the Consent Motion for Scheduling Order and Joint Status Report Regarding Corrective Statements [Dkt. 6231] is GRANTED; and it is

FURTHER ORDERED that on or before December 15, 2017, the parties shall submit an agreed upon (Proposed) Second Superseding Consent Order for Websites and Onserts or, failing that, provide a further status report to the Court specifying the particular matters yet to be resolved and the additional estimated time required to complete or resolve each of them.

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USA v PHILIP MORRIS, et. al. #6231: CONSENT MOTION FOR SCHEDULING ORDER AND JOINT STATUS REPORT REGARDING CORRECTIVE STATEMENTS, Nov 17, 2017

December 11, 2017 8:38 pm by Gene Borio

The PDF is Here

EXCERPT:

The parties are committed to implementing the corrective statements remedy for websites and onserts as expeditiously as possible consistent with ordinary commercial practices. The timing of implementation will be included in the (proposed) Consent Order for websites and onserts that the parties submit on December 15, 2017, or such later date if all the outstanding issues described above are not resolved by then.

The parties respectfully move the Court to enter the attached (proposed) scheduling order, requiring the parties to file by December 15, 2017, a (proposed) Consent Order for websites and onserts or a further status report.

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CIGAR ASSOCIATION OF AMERICA v. FDA: REPLY IN SUPPORT OF DEFENDANTS‘ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT, Dec 4, 2017

December 4, 2017 9:02 pm by Gene Borio

The PDF is Here

EXCERPT:

The government has long required commercial disclosures related to consumer health and safety. Those interests explain and justify disclosures that are now ubiquitous, from “Drug Facts“ labels on over-the-counter drugs, to “Nutrition Facts“ labels on food, to country-of-origin labels on meat. In this case, Plaintiffs neither dispute that their cigar and pipe tobacco products pose significant risks to human health, nor deny that the warning labels at issue are entirely accurate. Those disclosures are fully consistent with the First Amendment, regardless of the test applied, as they are appropriately tailored in view of the significant risks at stake.

Plaintiffs‘ other claims also miss the mark. The agency‘s assessment of user fees simply tracks the plain text of the statute, and Plaintiffs offer no coherent alternative reading. Retailers who blend pipe tobacco meet the statutory definition of a tobacco product manufacturer, despite Plaintiffs‘ attempt to conjure an alternative definition from an inapplicable section of the statute. And given that pipes are undeniably fundamental to smoking pipe tobacco, they properly fall within the regulatory definition of a “component or part,“ which merits substantial deference under Chevron. The Court should grant summary judgment to Defendants.

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USA v PHILIP MORRIS, et. al. #6228: CONSENT MOTION FOR SCHEDULING ORDER AND JOINT STATUS REPORT REGARDING CORRECTIVE STATEMENTS

October 29, 2017 9:21 pm by Gene Borio

The PDF is Here

EXCERPT:

The parties continue to move forward toward the implementation of the corrective statements remedy in two other media channels, websites and onserts. . .

Two media channels remain at issue here: websites and onserts.

1. Onserts. The parties continue to exchange comments on onsert mockups, and estimate that remaining onsert issues will be resolved by Friday, November 10, 2017.

2. Company websites. The parties are tentatively exploring having Defendants and the Remedies Parties prepare new company website mockups only for “Phase 1” (years 1 through 5). To date, Defendants have provided Plaintiffs with drafts of every “Phase 1” website mockup that the parties expect to submit with the (proposed) Consent Order, and Plaintiffs have provided feedback on all those drafts. Defendants have provided revised mockups for the majority of covered websites in response to Plaintiffs’ feedback and expect to provide additional revised mockups addressing Plaintiffs’ concerns. Plaintiffs have provided feedback on the majority of the revised websites. The parties have reached agreement on four website mockups to date, including one or more from each of Philip Morris USA, RJRT, and ITG Brands. The technical and time-consuming process of updating website mockups makes it difficult to estimate a completion date, but the parties will continue to work diligently to resolve as many outstanding issues as possible by November 17, 2017.

B. Ensuring prompt implementation . . .

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USA v PHILIP MORRIS, et. al. DOCKET 10/23-25/17

October 29, 2017 9:09 pm by Gene Borio

10/23/2017 6228 Joint STATUS REPORT Regarding Corrective Statements and Consent Motion for Scheduling Order by PHILIP MORRIS USA INC.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Agneshwar, Anand) (Entered: 10/23/2017)

10/23/2017 6229 Consent MOTION for Scheduling Order by PHILIP MORRIS USA INC. (Attachments: # 1 Text of Proposed Order)(Agneshwar, Anand) (Entered: 10/23/2017)

10/24/2017 6230 ORDER granting 6229 Consent Motion for Scheduling Order and Joint Status Report Regarding Corrective Statements. The parties shall submit on or before November 17, 2017 an agreed upon (Proposed) Superseding Consent Order for Websites and Onserts. Signed by Judge Paul L. Friedman on October 24, 2017.(MA) (Entered: 10/24/2017)

10/25/2017 Set/Reset Deadlines: Proposed superseding consent order for websites and Onserts due by 11/17/2017. (tj) (Entered: 10/25/2017)

CAA v FDA: MEMORANDUM OPINION re Intervenors, Oct 16, 2017

October 19, 2017 5:15 am by Gene Borio

The PDF is Here

EXCERPT:

the court concludes that Proposed Intervenors have not established that they would suffer a legally sufficient injury-in-fact if Plaintiffs were to prevail in this litigation. Therefore, they lack standing to intervene as of right, and the court declines to allow Proposed Intervenors to intervene permissively. Accordingly, the court denies Proposed Intervenors’ Motion to Intervene.


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