USA v PHILIP MORRIS, et. al. Appeal: APPELLEE BRIEF, Dec 2, 2016

December 2, 2016 10:38 pm by Gene Borio

The PDF is Here

EXCERPT:

Although this Court already held that the corrective statements may, consistent with RICO and the First Amendment, compel the cigarette manufacturers to “reveal the previously hidden truth about their products,” the companies now argue that the district court somehow contravened this Court’s past rulings by adopting preambles stating “Here is the truth” before setting forth entirely accurate statements concerning the health effects and addictiveness of cigarettes. Further, although the manufacturers themselves also proposed that the public be informed that the disclosures are being made “[u]nder court order,” the companies now also complain that such language has been included in the preambles.

STATEMENT OF FACTS

This is the seventh tobacco company appeal in this “long-running RICO case against the nation’s cigarette manufacturers” for engaging in a “‘pervasive scheme to defraud consumers and potential consumers of cigarettes,’ carried out ‘over the course of more than 50 years.’”

END EXCERPT

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FORSYTH v MPAA: JUDGMENT. Signed by Judge Richard Seeborg on 12/1/16

December 2, 2016 1:03 am by Gene Borio

The PDF is Here

EXCERPT:

This action having come before the Court, The Honorable Richard Seeborg, District Judge, presiding, and the issues having been duly heard and a decision having been duly rendered,

It is ORDERED AND ADJUDGED that Plaintiff take nothing and that the action be dismissed with prejudice.

END EXCERPT

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DOCKET for FORSYTH v MPAA, Nov 7-Dec 1, 2016

December 2, 2016 12:55 am by Gene Borio

EXCERPT:

12/01/2016 65 JUDGMENT. Signed by Judge Richard Seeborg on 12/1/16. (cl, COURT STAFF) (Filed on 12/1/2016) (Entered: 12/01/2016)

END EXCERPT

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CEI v DOT: BRIEF FOR RESPONDENTS, Nov 28, 2016

November 28, 2016 11:42 pm by Gene Borio

The PDF is Here

EXCERPT:

Contrary to Petitioners’ argument, the plain meaning of the term “smoking” does not unambiguously refer to the combustion of tobacco products. Dictionary definitions support a broad meaning of the term “smoking” as inhaling and exhaling the smoke or fumes of a device, and there is no reason to exclude e-cigarettes or other modern smoking technologies. Indeed, state statutory definitions and industry usage confirm that “smoking” is a broad and ambiguous term that accurately describes the use of e-cigarettes. Therefore, this Court should reject Petitioners’ argument that the agency is not entitled to deference and uphold the final rule as a reasonable exercise of the Secretary’s authority to prohibit “smoking” on aircraft.

In addition, the Secretary’s authority to ensure that air carriers provide “safe and adequate” transportation provides an independent source of authority for the rule. There is no dispute that this provision allows the Secretary to regulate quality of service and to ensure passenger comfort aboard aircraft. Acting pursuant to this authority, the agency rationally concluded, based on ample record evidence, that allowing e-cigarettes on aircraft would cause passenger discomfort due to respiratory irritation and concerns about the health effects of secondhand exposure. The Department cited numerous studies demonstrating the potential health risks of e-cigarettes and the need for further research.

Contrary to Petitioners’ arguments, the final rule properly relied on studies published after the close of the comment period to “expand[] on and confirm[]” the proposed rule’s conclusion that secondhand exposure to e-cigarette aerosol is potentially harmful. This Court should reject Petitioners’ efforts to invalidate the rule on this basis, as well as their attempts to second-guess the Secretary’s policy decisions as an arbitrary and capricious exercise of authority. In light of the potential harms of e-cigarettes and the need for further research, the Secretary rationally concluded that prohibiting e-cigarettes on airplanes would ensure “safe and adequate” transportation by protecting passengers from discomfort due to secondhand exposure.

END EXCERPT

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FORSYTH v MPAA: STIPULATION AND ORDER, Nov 28, 2016

November 28, 2016 11:21 pm by Gene Borio

The PDF is Here

EXCERPT:

A. On November 10, 2016, the Court granted Defendants’ special motion to strike and motion to dismiss with leave to amend.

B. Plaintiff does not intend to amend the complaint. Accordingly, Defendants request that the Court enter judgment pursuant to Rule 58.

C. The parties further stipulate that, pursuant to Rule 54(d)(2)(B) and Local Rule 54-5(a), Defendants shall have fourteen days from the Court’s entry of judgment to file a motion for attorney’s fees.

IT IS SO STIPULATED.

END EXCERPT

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CEI v DOT: FINAL REPLY BRIEF OF PETITIONERS, Nov 22, 2016

November 26, 2016 4:53 pm by Gene Borio

The PDF is Here

EXCERPT:

Thirty years ago this Court noted that “some will find ambiguity in a ‘No Smoking’ sign.”1 DOT has done exactly that, claiming that Congress’s 1989 smoking ban on airlines is so ambiguous that the agency is entitled, under Chevron, to redefine it to encompass e-cigarettes. DOT’s claim runs directly counter to established canons of statutory construction regarding the ordinary and contemporary meaning of everyday words. When Congress leaves a statutory term undefined because its meaning is plain, that is not an invitation for agency to expand its mission via redefinition.

DOT originally claimed that two other statutes authorized its rule; 49 USC 41702, dealing with “safe and adequate interstate air transportation,” and 49 USC 41712, dealing with “unfair and deceptive practices.” In its brief DOT now disclaims the latter. RB 3 n.1. But DOT’s claim that e-cigarettes pose a safety threat to airline passengers rests on sheer speculation—studies that state only that more research is needed. DOT attempts to sidestep this issue by expressly resting its authority on “passenger discomfort, which does not turn on definitive evidence of harm.” RB 36. But even this claim is speculative, because DOT has failed to point to a single instance of reported, rather than hypothesized, passenger discomfort.

END EXCERPT

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CEI v DOT: FINAL OPENING BRIEF OF PETITIONERS, Nov 22, 2016

November 26, 2016 4:34 pm by Gene Borio

The PDF of the main argument (pp 1-74) is Here.
The PDFs of the “STATUTORY ADDENDUM” and “ADDENDUM ON STANDING” are too large to upload.

EXCERPT:

DOT improperly banned the use of e-cigarettes under the anti-smoking statute, 49 U.S.C. § 41706, because e-cigarettes do not burn (or even contain) tobacco, much less produce smoke. DOT’s reliance on the anti-smoking statute to ban e-cigarettes violates the plain language of the statute, conflicts with its concession that e-cigarettes produce “a vapor, not smoke,” and contradicts its past recognition that this statute imposes only “a ban on smoking of tobacco products.”

DOT acted arbitrarily and without proper notice in banning e-cigarettes under 49 U.S.C. § 41702, which requires air carriers “to provide safe and adequate service, equipment and facilities.” It did not give proper notice of the seven studies it relied upon in its final rule. None of those seven studies had been cited in DOT’s NPRM, and six were released after the close of the deadline for comment. Moreover, none of those studies show that e-cigarettes actually interfere with passenger comfort, or health and safety. Instead, they merely found trace amounts of certain chemicals in e-cigarette vapor, or on surfaces exposed to such vapor. Those chemicals are found in commonly-used products or foods permitted on flights, and could only cause harm at much higher doses. The levels found in e- cigarette vapor are trivial in comparison to pre-existing air cabin contaminant levels.

DOT did not respond to evaluate the studies submitted by commenters showing that e-cigarettes cause no harm. DOT also simply ignored petitioners’ arguments about the passenger comfort and health and safety benefits of allowing e-cigarettes, which reduces air rage, withdrawal symptoms, and road-related mortality. Moreover, DOT relied on speculation about putative harms, rather than addressing a demonstrated problem. And even if some passenger discomfort or health risk actually had been shown, DOT lacked the power to ban insignificant risks or impediments to passenger comfort – as precedent construing similar “safe” and “adequate” language in other statutes shows.

DOT also wrongly relied on the statute banning an “air carrier” from “engag[ing] in an unfair or deceptive practice . . . in air transportation,” 49 U.S.C. § 41712, to ban e-cigarettes. First, DOT never even mentioned it in the Notice of Proposed Rulemaking, providing no notice to the public that it might rely upon it. Moreover, this statute only applies to airline conduct, not passenger conduct like e- cigarette use, and it does not reach non-misleading activity such as e-cigarette use. Nor does it allow an agency to regulate based on speculative harms.

STANDING

As an e-cigarette user who regularly travels by airplane, petitioner Gordon Cummings has standing to challenge DOT’s rule.

END EXCERPT

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CEI v DOT: JOINT APPENDIX, Nov 14 2016

November 25, 2016 9:42 pm by Gene Borio

11/14/2016 Open Document JOINT APPENDIX [1645941] filed by Competitive Enterprise Institute, Consumer Advocates for Smokefree Alternatives Association and Gordon Cummings. [Volumes: 1] [Service Date: 11/14/2016 ] [16-1128] (Bader, Hans)

EXCERPT:

I certify that the attached index is a list of all the documents filed in Docket No. DOT-OST-2011-0044. The documents comprise the administrative record in the matter under review in this case. These documents are maintained by the United States Department of Transportation and are available to the public through Regulations.gov

END EXCERPT

FORSYTH v MPAA: STIPULATION WITH PROPOSED ORDER Nov 22, 2016

November 25, 2016 9:38 pm by Gene Borio

The PDF is Here

EXCERPT:

A. On November 10, 2016, the Court granted Defendants’special motion to strike and
motion to dismiss with leave to amend.

B. Plaintiff does not intend to amend the complaint. Accordingly, Defendants request that
the Court enter judgment pursuant to Rule 58.

C. The parties further stipulate that, pursuant to Rule 54(d)(2)(B) and Local Rule 54-5(a),
Defendants shall have fourteen days from the Court’s entry of judgment to file a motion for
attorney’s fees.

IT IS SO STIPULATED.

. . .

THE COURT FINDS GOOD CAUSE EXISTS FOR THE PARTIES’STIPULATION AND ON
THAT BASIS THE FOREGOING STIPULATION IS APPROVED AND IS SO ORDERED.

END EXCERPT

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USA v Philip Morris, et. al.: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA: BRIEF FOR THE UNITED STATES, Nov 16, 2016

November 19, 2016 1:37 pm by Gene Borio

The PDF is Here

EXCERPT:

Nothing in this Court’s ruling required the removal of the phrase “Here is the truth” from the statements’ text. Nor did the Court require the district court to reopen the process of formulating the text of the corrective statements, much less to adopt the Manufacturers’ newly proposed text in lieu of modifying the text this Court had already examined. The district court properly concluded that the Manufacturers’ proposal to “return to the drawing board and start the process all over again” made it “obvious that Defendants are, once again, attempting to stall any final outcome to this long-standing litigation.”

END EXCERPT

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