20140929 APPELLANTS’ OPENING BRIEF

October 1, 2014 7:11 am by Gene Borio

20140929 APPELLANTS’ OPENING BRIEF

The PDF is Here

EXCERPT:

STATEMENT OF ISSUES

1. Whether the district court’s corrective statements violate the First Amendment and this Court’s 2009 mandate because they would compel Defendants to confess past misconduct and make assertions unsupported by the district court’s findings of fact, rather than provide purely factual and uncontroversial public-health information about Defendants’ products.

2. Whether the district court’s corrective statements violate RICO and this Court’s 2009 mandate because they are not geared toward “prevent[ing] and restrain[ing]” future RICO violations. 18 U.S.C. § 1964(a).

3. Whether the district court’s corrective statements violate due process because they impose criminal-like sanctions in a civil proceeding.

END EXCERPT

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Court of Appeals DOCKET #: 13-5028 for USA v. PHILIP MORRIS USA, et al Jul 30-Sep 29, 2014

October 1, 2014 6:57 am by Gene Borio

Court of Appeals DOCKET #: 13-5028 for USA v. PHILIP MORRIS USA, et al

EXCERPT:

09/29/2014 Open Document JOINT APPELLANT BRIEF [1514391] filed by Altria Group, Inc., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 13-5028, 14-5161 [Service Date: 09/29/2014 ] Length of Brief: 13,343 Words. [13-5028, 14-5161] (Estrada, Miguel)

END EXCERPT

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DOCKET for USA v. PHILIP MORRIS USA, et al Apr 4-Aug 13, 2014

September 30, 2014 11:19 am by Gene Borio

DOCKET for USA v. PHILIP MORRIS USA, et al Apr 4-Aug 13, 2014

EXCERPT:

08/13/2014 6128 REPLY to opposition to motion re 6120 Counter MOTION to ClarifyORDER #1015 AS TO NUMBER OF TV SPOTSCounter MOTION to Modify ORDER #1015 AS TO NUMBER OF TV SPOTS filed by UNITED STATES OF AMERICA. (Crane-Hirsch, Daniel) (Entered: 08/13/2014)

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DOCKET for USA v. PHILIP MORRIS USA, et al Jan 29-Mar 31, 2014

March 31, 2014 8:22 pm by Gene Borio

DOCKET for USA v. PHILIP MORRIS USA, et al Mar 31, 2014

EXCERPT:

02/04/2014 6044 AMICUS BRIEF by FOX BROADCASTING COMPANY.

02/04/2014 6045 AMICUS BRIEF by NATIONAL ASSOCIATION OF BLACK OWNED BROADCASTERS, NATIONAL NEWSPAPER PUBLISHERS ASSOCIATION.

02/04/2014 6046 AMICUS BRIEF by NATIONAL ASSOCATION FOR THE ADVANCEMENT OF COLORED PEOPLE.

02/18/2014 6066 AMICUS BRIEF by VIACOM INC..

02/25/2014 6068 AMICUS BRIEF by A&E TELEVISION NETWORKS, LLC.

03/04/2014 6073 AMICUS BRIEF by UNIVISION COMMUNICATIONS INC.

03/04/2014 6074 AMICUS BRIEF by CW TELEVISION NETWORK. (Attachments: # 1 Declaration of John D. Maatta)

03/04/2014 6075 AMICUS BRIEF by INTERACTIVE ONE, LLC, RADIO ONE, INC., TV ONE, LLC.

03/11/2014 6077 AMICUS BRIEF by LITTLE ROCK SUN.

03/19/2014 6079 AMICUS BRIEF by TURNER BROADCASTING SYSTEM, INC..

END EXCERPT

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DOCKET for NYC v FedEx 12/30/13-3/31/14

March 31, 2014 12:42 pm by Gene Borio

DOCKET for NYC v FedEx 12/30/13-3/31/14

EXCERPT:

12/30/2013 1 COMPLAINT against Federal Express Corp., Fedex Ground Package System, Inc. (Filing Fee $ 350.00, Receipt Number 1084338)Document filed by The City of New York.(laq) (Entered: 01/07/2014)

12/30/2013 SUMMONS ISSUED as to Federal Express Corp., Fedex Group Package System, Inc. (laq) (Entered: 01/07/2014)

END EXCERPT

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THE CITY OF NEW YORK v. FEDEX: Amended Complaint 3/30/14

March 31, 2014 12:37 pm by Gene Borio

The PDF is Here

EXCERPT:

18. Plaintiffs seek in this action to: i) enjoin further deliveries of cigarettes into the City and State by FedEx; ii) require FedEx to submit to oversight by a court-appointed Special Master empowered to monitor FedEx’s tobacco deliveries and assure FedEx’s compliance with federal and state law governing tobacco deliveries; iii) recover damages under the CCTA and the PACT Act equal to the amount of each $15 tax stamp that should have been affixed to each carton of unstamped cigarettes that FedEx shipped, transported, and/or distributed in the City and the amount of each $15, $27.50 or $43.50 tax stamp that should have been affixed to each carton of unstamped cigarettes that FedEx shipped, transported and/or distributed in the State; iv) recover damages under RICO equal to three times the amount of each $15 tax stamp that should have been affixed to each carton of unstarnped cigarettes shipped, transported, or distributed in the City and three times the amount of each $15.00, $27.50 or $43.50 tax stamp that should have been affixed to each carton of unstamped cigarettes that FedEx shipped, transported, and/or distributed in the State; v) recover civil penalties under the CCTA, the PACT Act, and N.Y. PHL § 1399-Il; vi) recover penalties of $1000 per violation of the AOC; and vii) recover the attorney’s fees and costs incurred in bringing this action.

END EXCERPT

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VIACOM’s MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE (PDF)

January 28, 2014 10:38 am by Gene Borio

The PDF is Here

EXCERPT:

Viacom Inc. . . . hereby moves, on behalf of its television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®, for leave to participate in this action as amicus curiae . . .

Viacom’s interest in this action is limited to the issue of the sufficiency, including the structure, of the remedies proposed. In this Court’s Opinion filed November 27, 2012, the Court made clear that the types of media Defendants used to convey commercial messages had “changed dramatically” since 2006. Television media has also changed dramatically in the fortythree years since Defendants broadcast their deceptive messages on television. The Proposed Consent Order does not reflect those changes.

As explained in Viacom’s brief, Viacom’s targeted networks may provide a more effective means than any of CBS, ABC, or NBC, for redressing Defendants’ conduct among young people, including Black young people—the demographics that were targeted by Defendants in their misleading advertising. For these reasons, and as explained more fully in its brief, Viacom respectfully requests that the Court (1) deny the motion for approval of the Proposed Consent order; (2) find that Viacom’s networks are appropriate vehicles for the Corrective Statements, and (3) direct the parties, with the assistance of the Special Master and with input from amici curiae including Viacom, to conduct a comprehensive inquiry into, inter alia, the distribution of the Corrective Statements to the target audiences, the quantity of advertisements that can be purchased on each such network for equivalent resources, and the days and times of the broadcast of the Corrective Statements to ensure the effective distribution of the corrective messages to the target audiences. In the alternative, Viacom requests that the Proposed Consent Order be amended to require that a portion of Defendants’ advertising “spend” be used to purchase spots on Viacom’s networks. Viacom believes this simple modification of the order as it currently stands will increase the probability that the Corrective Statements are transmitted to young people including young African Americans.

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DEFENDANTS’ RESPONSE TO MOTIONS TO FILE AMICUS CURIAE BRIEFS (PDF)

January 28, 2014 10:32 am by Gene Borio

The PDF is Here

EXCERPT:

Pending before the Court are three motions for leave to file amicus curiae briefs . . . Defendants have advised the Court that they are willing to discuss with the Government and Intervenors whether the parties can accommodate the concerns of the amici within the framework of the existing agreement. In these circumstances, Defendants do not object to the filing of the three amicus briefs.

END EXCERPT

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DOCKET for USA v. PHILIP MORRIS USA, et al Jan 22-28, 2014

January 28, 2014 10:18 am by Gene Borio

Date Filed # Docket Text

01/22/2014 Set/Reset Hearings: Status Conference set for 1/22/2014 02:00 PM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 01/22/2014)

01/22/2014 6028 MOTION for Leave to File Amicus Brief filed by NATIONAL NEWSPAPER PUBLISHERS ASSOCIATION, NATIONAL ASSOCIATION OF BLACK OWNED BROADCASTERS. (Attachments: # 1 Exhibit File stamp copy of Amicus Brief, # 2 Exhibit File stamp copy of Exhibit to Amicus Brief)(Ludaway, Natalie) Modified on 1/23/2014 (znmw, ). (Entered: 01/22/2014)

01/22/2014 6029 MOTION for Leave to File Amicua Brief by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Exhibit Brief)(Taylor, Marshall) Modified filer on 1/23/2014 (znmw, ). (Entered: 01/22/2014)

01/22/2014 DEPOSIT of Funds in the amount of $ $750,000.00, Receipt Number 4616061687. (td, ) (Entered: 01/22/2014)

01/22/2014 Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 1/22/2014. (Court Reporter: Lisa Foradori) (tth) (Entered: 01/22/2014)

01/22/2014 6030 ORDER #43-Remand: Oppositions to the three Motions for Leave to File Amicus Curiae Briefs are due no later than January 28, 2014 at 4:00 p.m.; Replies, if any, are due no later than January 30, 2014, at 4:00 p.m.; Praecipes of no longer than 30 pages addressing issues raised in today’s Status Conference are due no later than February 18, 2014, at 4:00 p.m. Signed by Judge Gladys Kessler on 01/22/2014. (lcgk2, ) (Entered: 01/22/2014)

01/23/2014 Set/Reset Deadlines: Oppositions due by 1/28/2014. Replies due by 1/30/2014, at 4:00 p.m. Praecipes due by 2/18/2014, at 4:00 p.m.(tth) (Entered: 01/23/2014)

01/27/2014 6031 RESPONSE re 6027 First MOTION for Leave to File Amicus Curiae Brief, 6028 MOTION for Leave to File, 6029 MOTION for Leave to File Amicua Brief filed by ALTRIA GROUP, INC., BROWN & WILLIAMSON TOBACCO CORPORATION, LORILLARD TOBACCO COMPANY, PHILIP MORRIS USA INC., R.J. REYNOLDS TOBACCO COMPANY. (Campbell, Matthew) (Entered: 01/27/2014)

01/27/2014 6032 MOTION for Leave to File as Amicus Curiae by VIACOM INC. (Attachments: # 1 Amicus Brief of Viacom Inc., # 2 Declaration of John Halley, # 3 Declaration of Berj Kazanjian, # 4 Declaration of Matthew Barnhill)(Anker, Kent) (Entered: 01/27/2014)

Once Upon a Time, on a Day Far, Far Away . . .

January 24, 2014 1:19 am by Gene Borio

It appears only Reuters thought this hearing important enough to cover. Perhaps they’ve all given up; or, considering the briar patch of complications, probable appeals and likely delays discussed at the hearing, perhaps they feel that by the time anything actually happens in real life due to this trial, their grandchildren will be covering it anyway.

First, Judge Kessler congratulated the Parties for successfully coming to an agreement on implementation of portions of the corrective statements (they’d worked at it for over a year with mediator/Special Master Richard Levie).

Then she said that, partly due to the recent spate of filings [ie, by black and tribal media outlets, as well as by Fox ], she was concerned about 6 things, some of which, she said, were critically important.

She said:

1. 7 years after Order 1015, which set forth the newspapers to carry the corrective statements, I have come to the belief that we have ignored extremely important segments of the population–segments that had actually been targeted.

2. I am concerned about the prominence/placement of corrective statements on Websites of different Parties

3. I need an explanation on why the corrective statements are handled differently on mobile devices than on desktops.

(Mr. Anand Agneshwar, representing Altria and Philip Morris USA, later told her it was because of the size of the screen. He indicated the discussions on this matter were long and tedious and incredibly technical. The Parties tried to identify a “hierarchy of elements,” and had to set forth adaptable rules accounting for “responsive design,” size, color, font, etc. They even tried to account for unforeseen future technology. (”We tried to cross every t and dot every i,” Agneshwar said.)

4. In the Parties’ proposed order, I need a definition of the term “triggering event.”

(The Trigger Day, Agneshwar said, was that day when all appeals are exhausted. He noted that Altria has reserved the right to appeal the content of the corrective statements–but Altria would definitely NOT appeal this agreement, which only concerns the dissemination of the correctives. At that time when the Court issues an Order approving the agreement, Altria will then legally challenge the content of the corrective statements.)

5. The Proposed Order is not clear enough on the Minnesota Depository, and how long the Defendants’ obligations will run.

(DOJ’s Daniel Crane-Hirsch later told her the Defendants will continue to deliver their documents and pay for maintenance until 2021)

6. In the interest of accuracy, given the issuance of a new report of the Surgeon General, the statistics and facts on the health effects of tobacco are substantially different in many areas than the Proposed Order. I’m concerned about issuing an order that will contain statistics that are outdated.

She said she will set a deadline for how to proceed, and that she would be asking for praecipes on these 6 concerns–but wondered if any party would like to speak about them, even if only impromptu. “Consider this just the first conversation about these issues.”

Howard Crystal, for the Public Health Intervenors, said his clients basically want the corrective statements OUT THERE. It’s been a long time now, and the public health organizations want FINALITY.

Altria’s Agneshwar emphasized the myriad assumptions the agreement was based on. These new filings may lead to a different set of assumptions. And once the terms of agreement start to change–all the parties would have to look at each carefully-balanced element of the agreement again. “We want the agreement we have reached,” he said. Again, finality. As to the Surgeon General’s Report, Agneshwar said Altria hasn’t been able to evaluate it yet. But the Court’s order was premised on findings from the actual trial. And that trial record is now closed.

DOJ’s Daniel Crane-Hirsch also emphasized that changing any part of the agreement now could run a substantial risk to it.

Judge Kessler said she was concerned about the delay(s). The Bottom Line, she said, was that the public was not getting the benefit of the corrective statements. She ticked off the various likely appeals, noted the court schedules, and calculated that the actual dissemination of corrective statements won’t go ahead until 2015. Crane-Hirsch then mentioned a likely en ban appeal, and even a likely cert petition to the Supreme Court.

Judge Kessler asked if the DOJ agreed the correctives’ statistics should be from the original trial. Crane-Hirsch said “we’re studying that.”

Noel Francisco for RJR and Michael Minton for Lorillard also favored no changes whatsoever to the agreement.

Several people noted that the very important convenience store Point of Sale issue (ie, the appropriation of the valuable retail display space of a 3rd party for posting the correctives) appears to be on a separate track that will not further complicate these 6 issues.