Tobacco On Trial

The PDF is here

EXCERPT:

In Orders #14-Remand and #15-Remand, the Court referred particular issues concerning defendants’ document websites to mediation. Because of the University of California—San Francisco’s (UCSF) expertise in the subject area, the United States and Public Health Intervenors consulted with UCSF staff during the course of the mediation sessions. We understand that the parties have reached an agreement that would include certain defendants’ paying specified amounts of money to the Registry of the Court, which would then disburse the funds to UCSF to improve access to and the functionality of the Legacy Tobacco Documents Library.

We submit this Notice to certify that:

1. UCSF is aware of and consents to the terms that refer to the university in the (proposed) consent order;

2. UCSF voluntarily submits itself to the personal jurisdiction of the Court concerning any disputes about UCSF’s obligations under the (proposed) consent order;

3. UCSF agrees to use the moneys disbursed to it by the Registry of the Court under the (proposed) consent order to improve access to and functionality of the Legacy Tobacco Documents Library, e.g., through coding documents and providing enhanced search capabilities (with the understanding that the university may assess some percentage for indirect costs), and not for any other purpose.

4. As a condition for receipt of the payments provided under the (proposed) consent order, UCSF agrees to file through the ECF system, by December 31 of each year (beginning in 2012) and up to and including the final year in which these funds are spent, a certification confirming that these funds have been used only for the purposes described in Paragraph (3) and not for any other purpose.

5. UCSF agrees that if it spends any of these funds in a manner inconsistent with Paragraph (3), it will refund any such funds to the Registry of the Court.

6. UCSF understands that under the (proposed) consent order, it may allocate the monies received for the purposes specified in Paragraph (3) through December 31, 2025. UCSF will have until that date to spend all the funds provided by the (proposed) consent order, and agrees to continue filing annual certifications until all funds are spent. UCSF agrees that if any of the funds remain unspent by that date, it will refund any remaining funds to the Registry of the Court.

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The PDF is HERE

EXCERPT:

II. Monetary Terms

A. Philip Morris USA Inc. and Altria Group, Inc. (collectively, hereafter “PM”) and R.J. Reynolds Tobacco Company (hereafter “RJR”1) will each deposit, on or before the dates indicated below, the amounts indicated below with the Registry of the Court:

Friday, December 30, 2011 $200,000

Wednesday, February 15, 2012 $750,000

Friday, February 15, 2013 $750,000

Friday, February 14, 2014 $750,000

Monday, February 16, 2015 $675,000

Total (PM and RJR each): $3.125 million

Total (combined): $6.25 million

B. The Registry of the Court will, upon receipt of each of these installments, disburse the funds to the University of California, San Francisco (hereafter “UCSF”). C. PM and RJR will make these payments in lieu of their prior obligations under Order #1015 to code person mentioned, organization mentioned, and brand mentioned fields, and as part of a resolution of the scope of their coding obligations for documents posted on their public document websites as a result of production in court or administrative actions in the For purposes of obligations discussed in this Order, “RJR” shall refer to obligations associated with R.J. Reynolds Tobacco Company, Brown & Williamson, and American Tobacco.

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The PDF is HERE

EXCERPT

By Orders dated February 25, 2011 (DN 5878) and March 24, 2011 (DN 5895), this Court referred to mediation several matters related to Defendants’ document disclosure obligations under Order #1015 (DN 5733, Aug. 17, 2006), published as United States v. Philip Morris USA Inc., 449 F. Supp. 2d 1, 940-44 (D.D.C. 2006), aff’d in part & vacated in part, 566 F.3d 1095 (D.C. Cir. 2009) (per curiam), cert. denied, 561 U.S. ___, 130 S. Ct. 3501 (2010). Philip Morris USA Inc., Altria Group, Inc., and R.J. Reynolds Tobacco Company (in its own capacity and as successor in interest to Brown & Williamson, Inc., and American Tobacco, Inc.) (hereafter “Defendants”) and the United States and the Public Health Intervenors (hereafter “Plaintiffs”) have successfully concluded that mediation. Subject to the Court’s approval, the attached (proposed) Consent Order resolves the issues referred for mediation, including the scope of these

 Case 1:99-cv-02496-GK Document 5951 Filed 12/13/11 Page 2 of 4

Defendants’ coding obligations for documents posted on their public websites maintained by them as a result of production in smoking and health litigation both prior to November 1, 2011, and on or after that date.

WHEREFORE, Plaintiffs and the specified Defendants respectfully ask the Court to enter the attached (proposed) Consent Order.

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The PDF of Kessler’s order is HERE

EXCERPT:

The Court is well aware that there is a great deal of on-going litigation challenging the Regulations promulgated by the Food and Drug Administration (“FDA”), Required Warnings for Cigarette Packages & Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011), under the Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2001), raising both constitutional and non- constitutional claims. Again, as counsel know, the Government submitted proposed corrective action statements in this case, and those statements are significantly different from the verbal and pictorial advertisements required by the FDA Regulations.

Given the posture of the corrective action statements issue, the Court hereby orders the parties to submit their views on the following questions: (1) should this Court defer consideration of the issue of corrective action statements (as well as the issue of retail store advertising placement), (2) if so, for how long should such consideration be deferred?

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The PDF of Order #26 is HERE

EXCERPT:

WHEREFORE, it is this 18th day of August, 2011, hereby

ORDERED, that, with the concurrence of Judge John Guthmann, of the Second Judicial District Court, County of Ramsey, State of Minnesota, this Court will exercise jurisdiction and supervision of the Minnesota Depository as of September 15, 2011; and it is further

ORDERED, that all existing Court Orders from the State Court in Minnesota, as well as the Minnesota Tobacco Document Depository General Procedures will remain in effect until further notice.

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Date Filed: 09/22/1999

Jury Demand: Both

Nature of Suit: 890 Other Statutory Actions

Jurisdiction: U.S. Government Plaintiff

Date Filed # Docket Text

Date Filed # Docket Text

Date Filed # Docket Text

ORDER #16 (PDF)

ORDER #16 Memorandum Opinion (PDF)

EXCERPTS:

This civil action brought by the United States under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, is now before the Court on Plaintiff’s Motion to Compel Defendant British American Tobacco (Investments) Limited’s (“BATCo’s”) Compliance and Defendant BATCo’s Motion for Reconsideration. Upon consideration of the respective Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiff’s Motion to Compel is granted in part and denied in part and Defendant BATCo’s Motion for Reconsideration is granted in part and denied in part. . . .

The dispositive issue presented in both Motions is whether RICO continues to have extraterritorial reach after the Supreme Court’s decision in Morrison, 130 S. Ct. 2869. BATCo contends that “Morrison changed the law concerning the use of the ‘effects’ test to measure extraterritoriality and invalidated the legal basis for both the D.C. Circuit’s and this Court’s rulings with respect to BATCo’s RICO liability.” The Government argues that Morrison applied only to Section 10(b) of the Securities Exchange Act and not to RICO, because “Morrison did not turn principally on the presumption against extraterritoriality.”

Fortunately, Morrison’s language is clear. “When a statute gives no clear indication of an extraterritorial application, it has none.” “Rather than guess anew in each case, we apply the presumption in all cases, preserving a stable background against which Congress can legislate.” That language demonstrates that the Supreme Court intended the presumption against extraterritoriality to apply to all statutes, not simply the Exchange Act. This conclusion is further confirmed by the structure of Justice Scalia’s majority opinion. In Section IIIA, that opinion sets out the Supreme Court’s general rule on extraterritoriality, to be applied “in all cases,” and then in Section IIIB specifically applies that general rule to the Exchange Act. The Government’s argument ignores the plain language of Morrison and ignores its presumption against territoriality and accompanying rejection of the “effects” test. Therefore, the Court concludes that the ruling in Morrison must be applied to RICO. . . .

In conclusion, the Supreme Court, in crystal clear language, rejected the “effects” test for extraterritorial application. In rejecting that test, the Supreme Court invalidated the sole basis for BATCo’s liability. Therefore, applying the Court’s Final Order #1015 against BATCo “prospectively is no longer equitable.”

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