CIVIL DOCKET FOR Forsyth v. MPAA, May 2-3, 2016

May 3, 2016 1:33 pm by Gene Borio

05/02/2016 34 ORDER by Judge Richard Seeborg GRANTING 30 REGARDING PAGE LIMITS FOR BRIEFING ON DEFENDANTS ANTI-SLAPP MOTION AND MOTION TO DISMISS. (cl, COURT STAFF) (Filed on 5/2/2016) (Entered: 05/02/2016)

05/03/2016 35 NOTICE of Appearance by Roger Rex Myers for Defendant National Association of Theatre Owners (Myers, Roger) (Filed on 5/3/2016) (Entered: 05/03/2016)

05/03/2016 36 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Marshall, Kenneth) (Filed on 5/3/2016) (Entered: 05/03/2016)

FORSYTH v MPAA: DEFENDANT NATIONAL ASSOCIATION OF THEATRE OWNERS’ SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ JOINT SPECIAL MOTION TO STRIKE AND MOTION TO DISMISS, Apr 29, 2016

April 30, 2016 8:09 pm by Gene Borio

The PDF is Here

EXCERPT:

In words that could have been written for this case, the Supreme Court rejected California’s attempt to unilaterally impose parental guidance because “the entire effect [of the Act] is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires.”

. . .

Here, Plaintiff is asking this Court to impose content-based determinations about what is appropriate for children. The Plaintiff’s judgment of what he thinks “parents ought to want” is not one this Court can impose on parents in a manner consistent with the Constitution. Plaintiff’s proposal is even more flawed by his inclusion of two content-based exemptions for “real historical figures” that “actually used tobacco” and for depictions that “clearly and unambiguously reflect[] the dangers and consequences of tobacco use.” These exemptions would leave the Court in an ongoing quagmire of policing which characters are sufficiently historical, whether they actually used tobacco, and whether a particular depiction adequately reflects the dangers and consequences of tobacco use. None of these content-based determinations can be made consistent with the First Amendment.

END EXCERPT

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FORSYTH v MPAA: DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE, Apr 29, 2016

April 30, 2016 8:01 pm by Gene Borio

The PDF is Here

EXCERPT:

Defendants respectfully request that the Court take judicial notice of the content of three websites that discuss the attributes of particular movies, as exemplified by the screenshots in Exhibits 1–3.

Exhibit 1 consists of screenshots from the website of an entity known as Common Sense Media, which identifies itself as “the nation’s leading independent non-profit organization dedicated to empowering kids to thrive in a world of media and technology.”
www.commonsensemedia.org/ (last visited April 29, 2016).

Exhibit 2 is a screenshot from a website called “Smoke Free Movies,” which is maintained by University of California, San Francisco’s Center for Tobacco Control Research and Education. smokefreemovies.ucsf.edu/ (last visited April 29, 2016).

Exhibit 3 is a screenshot from a website called “Scenesmoking.org,” which was established by the non-profit Breathe California of Sacramento-Emigrant Trails. This website hosts a searchable movie database, called “Thumbs Up! Thumbs Down!”, which reviews movies based on the tobacco imagery therein. www.scenesmoking.org/ (last visited April 29, 2016).

For the foregoing reasons, Defendants respectfully request that the Court take judicial notice of the contents of (1) the Common Sense Media website, (2) the Smoke Free Movies website, and (3) the Scenesmoking website, as exemplified by the screenshots in Exhibits 1–3.

END EXCERPT

[NB: The Exhibit files are each over 2MB, and exceed WordPress’ limits. You can find them at UCSF:

EXHIBIT 1: smokefreemovies.ucsf.edu/…

EXHIBIT 2: smokefreemovies.ucsf.edu/…

EXHIBIT 3: smokefreemovies.ucsf.edu/…

–gb]

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FORSYTH v MPAA: MOTION to Strike, Apr 29, 2016

April 30, 2016 7:32 pm by Gene Borio

The PDF is Here

EXCERPT:

The Complaint is a misguided attempt to upend basic tort principles and core First Amendment protections to force the Classification and Rating Administration (“CARA”)—the movie ratings body that the MPAA and NATO jointly operate—to change the opinions it expresses through its movie ratings system. Plaintiff alleges that CARA has made actionable misrepresentations and committed other torts because it does not automatically give an “R” rating to every movie that contains even a single image of tobacco use. But CARA has expressly said that it does not apply a mandatory R rule because CARA “do[es] not believe such a step would further the specific goal of providing information to parents” about movies their children should see. (Compl. Ex. 5 at 6.)1 Plaintiff’s claims fail as a matter of law for multiple reasons.

. . .

The Complaint cannot proceed past the pleading stage. It is subject to California’s anti- SLAPP statute because Plaintiff’s state-law claims target speech—movie ratings—and the Complaint expressly alleges ratings to be matters of vigorous public debate.2 To proceed past the pleading stage, Plaintiff therefore must demonstrate a probability of success on the merits. But Plaintiff cannot even plausibly allege his claims, let alone demonstrate that they are likely to succeed. Accordingly, all of Plaintiff’s claims must be stricken under the anti-SLAPP statute. If the Court finds that the anti-SLAPP statute does not apply, the Complaint nevertheless must be dismissed for failure to state a claim under Rule 12(b)(6).

END EXCERPT

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CIVIL DOCKET FOR Forsyth v. MPAA, Apr 28-29, 2016

April 29, 2016 7:42 pm by Gene Borio

Date Filed # Docket Text

04/28/2016 30 STIPULATION WITH PROPOSED ORDER /Stipulation And [Proposed] Order Regarding Page Limits For Briefing On Defendants’ Anti-Slapp Motion And Motion To Dismiss filed by Motion Picture Association of America, Inc., Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. (Klaus, Kelly) (Filed on 4/28/2016) (Entered: 04/28/2016)

04/29/2016 31 MOTION to Strike 1 Complaint, Defendants’ Notice of Motions and 1 Special Motion to Strike Pursuant to California Anti-SLAPP Statute, Cal. Civ. Proc. Code Section 425.16 et seq., or, in the alternative, 2 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6); Memorandum of Points and Authorities filed by Motion Picture Association of America, Inc., National Association of Theatre Owners, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. Motion Hearing set for 6/9/2016 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 5/13/2016. Replies due by 5/20/2016. (Attachments: # 1 Proposed Order [Proposed] Order)(Klaus, Kelly) (Filed on 4/29/2016) (Entered: 04/29/2016)

04/29/2016 32 Request for Judicial Notice re 31 MOTION to Strike 1 Complaint, Defendants’ Notice of Motions and 1 Special Motion to Strike Pursuant to California Anti-SLAPP Statute, Cal. Civ. Proc. Code Section 425.16 et seq., or, in the alternative, 2 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed byMotion Picture Association of America, Inc., National Association of Theatre Owners, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., The Walt Disney Company, Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 31 ) (Klaus, Kelly) (Filed on 4/29/2016) (Entered: 04/29/2016)

04/29/2016 33 MOTION to Strike Complaint filed by National Association of Theatre Owners. Motion Hearing set for 6/9/2016 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 5/13/2016. Replies due by 5/20/2016. (Marshall, Kenneth) (Filed on 4/29/2016) (Entered: 04/29/2016)

FORSYTH v MPAA: STIPULATION AND [PROPOSED] ORDER REGARDING PAGE LIMITS FOR BRIEFING ON DEFENDANTS’ ANTI-SLAPP MOTION AND MOTION TO DISMISS, Apr 28, 2016

April 29, 2016 3:28 pm by Gene Borio

The PDF is Here

EXCERPT:

in order to minimize duplication of efforts and multiple, overlapping memoranda at each of the motion, opposition, and reply stages, the Parties have agreed, subject to the Court’s approval, to file consolidated briefs on both motions to the extent possible and to expand the otherwise applicable page limits for the total briefing as follows:

1. On or before April 29, 2016, Defendants shall file briefs in support of their simultaneously filed Anti-SLAPP Motion and Motion to Dismiss that, combined, shall not exceed 40 pages.

2. Plaintiff shall file a single brief in opposition to said Motions that shall not exceed 40 pages.

3. Defendants shall file reply briefs in support of said Motions that, combined, shall not exceed 20 pages.

4. After Defendants have filed their opening briefs on April 29, 2016, the Parties will meet and confer to discuss a briefing schedule for Plaintiff’s opposition and Defendants’ reply and, if necessary, an increase in Plaintiff’s and Defendants’ page limits. The Parties expect to submit a separate Stipulation and [Proposed] Order regarding a briefing and hearing schedule following those meet-and-confer discussions.

END EXCERPT

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USA v. PHILIP MORRIS USA, et al DOCKET, Apr 19-28, 2016

April 28, 2016 4:03 pm by Gene Borio

04/19/2016 6194 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK, TOBACCO-FREE KIDS ACTION FUND. Attorney Howard M. Crystal terminated. (Crystal, Howard) (Entered: 04/19/2016)

04/19/2016 6195 ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached). Signed by Judge Gladys Kessler on 4/19/16. (CL) (Entered: 04/19/2016)

04/28/2016 USCA Case Number 16-5101 for 6191 Notice of Appeal to DC Circuit Court, filed by ALTRIA GROUP, INC., R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA INC., COMMONWEALTH ALTADIS, COMMONWEALTH BRANDS INCORPORATED, ITG BRANDS, LLC. (zrdj) (Entered: 04/28/2016)

6195: ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached)

April 19, 2016 6:21 pm by Gene Borio

The PDF is Here

EXCERPT:

Upon consideration of the Joint Motion for Superseding Consent Order Implementing the Corrective Statements Remedy, and the entire record herein, it is hereby ORDERED that:

The corrective statements remedy under Order #1015, published as United States v. Philip Morris USA Inc., aff ‘d in part & vacated in part…is hereby MODIFIED as set forth below:

PART 1: REVISED TEXT FOR CORRECTIVE STATEMENTS

As required by the Court of Appeals in United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015), and the memorandum opinion accompanying Order #62-Remand, the text of the Corrective Statements shall be as follows for Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA:

A. Adverse Health Effects of Smoking

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA 1 to make this statement about the health effects of smoking.

Here is the truth:

• Smoking kills, on average, 1,200 Americans. Every day.

• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.

• Smoking causes heart disease, emphysema, acute myeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder, and pancreas.

• Smoking also causes reduced fertility, low birth weight in newborns, and cancer of the cervix.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA to make this statement about the addictiveness of smoking and nicotine.

Here is the truth:

. . .

VI. Additional Provisions

1. . . . This Superseding Consent Order does not resolve the outstanding issue of Corrective Statements in retail point-of-sale displays.

2. The Corrective Statement formats specified above are intended to be comprehensive. No Defendant or ITG Brands shall alter, modify, or add to the specified elements of these formats, and no additional text, images, voice-over or other elements may be included.

END EXCERPT

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PHILIP MORRIS v FDA: DOCKET 4/19/16

April 19, 2016 5:55 pm by Gene Borio

Date Filed # Docket Text

04/19/2016 6194 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK, TOBACCO-FREE KIDS ACTION FUND. Attorney Howard M. Crystal terminated. (Crystal, Howard) (Entered: 04/19/2016)

04/19/2016 6195 ORDER #64-Remand granting 6193 the Joint Motion to Enter Superseding Consent Order Implementing Corrective Statements (attached). Signed by Judge Gladys Kessler on 4/19/16. (CL) (Entered: 04/19/2016)

LORILLARD v FDA: DOJ RESPONSE TO PETITION FOR REHEARING EN BANC, APR 15, 2016

April 15, 2016 4:39 pm by Gene Borio

The PDF is Here

EXCERPT:

The Family Smoking Prevention and Tobacco Control Act of 2009 directed the Food and Drug Administration to establish the Tobacco Products Scientific Advisory Committee to provide advice to the agency, including, as its first order of business, preparation of a report addressing the impact of menthol cigarettes on tobacco use. FDA established the committee pursuant to the Federal Advisory Committee Act, and, in 2011, the unanimous committee issued its Menthol Report.

Plaintiffs are cigarette manufacturers who claim that FDA should have determined that three committee members had conflicts of interest. A panel of this Court concluded that plaintiffs lack Article III standing because they failed to produce evidence of an imminent and non-speculative injury-in-fact. The panel applied settled standing principles to the summary judgment record in this case and did not speculate whether other private parties may bring suits of this kind.

The panel decision was correct and does not conflict with any decision of the Supreme Court, this Court, or any other court of appeals. Indeed, plaintiffs identify no case in which a private party has sought to enforce the federal ethics rules. No further review is warranted.

END EXCERPT

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