REPLY BRIEF OF DEFENDANTS AND POST-JUDGMENT PARTIES REGARDING REMEDIES ADDRESSING REVISED LANGUAGE AND IMPLEMENTATION OF THE CORRECTIVE STATEMENTS, Nov. 25, 2015November 25, 2015 12:48 pm by Gene Borio
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Neither the Government nor Intervenors are able to mount a legally coherent, factually grounded defense of the Government’s proposed preambles and unilateral modifications to the parties’ implementation Consent Order. Their arguments regarding the Government’s backward- looking, conduct-focused preambles fail at the outset because they rest on the premise that the D.C. Circuit rejected only the “deliberately deceived” language in this Court’s preambles and otherwise left the language of the preambles intact. In fact, the D.C. Circuit’s opinion rejected the preambles in full because they “reveal[ed] nothing about cigarettes,” but “instead . . . disclose[d] defendants’ prior deceptive conduct.” The Government’s proposed preambles are materially indistinguishable from those disapproved by the D.C. Circuit because they continue to communicate the clear message that Defendants are being “ordered” by a “Federal Court” to disclose “the truth” about their products as punishment for past deceptions.
In classic understatement, the Government acknowledges the possibility that its proposed preambles might give rise to the “suggestion” of “past misconduct,” but contends that such a retrospective message is acceptable as long as the statements will also “prevent and restrain future violations” of RICO. But that position cannot be reconciled with the “exceedingly narrow grounds” on which the D.C. Circuit upheld the corrective statements, which must be limited to “forward-looking” language. Language is not “forward-looking” if it leads viewers—through “suggestion,” implication, or otherwise—to conclude that Defendants engaged in “prior deceptive conduct.” Plaintiffs’ insistence on the Government’s proposed preambles—in the face of a clear and effective alternative from the Manufacturers that would facilitate dissemination of the corrective statements without a further appeal—makes clear that the illicit message of past wrongdoing, rather than the dissemination of information about Defendants’ products, is Plaintiffs’ true objective.
Plaintiffs’ arguments regarding the Government’s proposed unilateral modifications to the parties’ carefully negotiated implementation Consent Order are equally ineffectual. Those arguments rest on the Consent Order’s reservation-of-rights clause, which Plaintiffs suggest somehow authorizes the Government to request, and this Court to order, modifications to contractual provisions that were unaffected by the D.C. Circuit’s Corrective Statements Opinion. But that clause does not override the settled precedent that strictly limits this Court’s authority to modify a negotiated consent order to changes necessitated by the appellate court’s mandate. This Court has no authority to rewrite the parties’ Consent Order to suit the whim and fancy of the Government, which is seeking to backtrack on terms to which it voluntarily agreed as part of the implementation negotiations.