ORDER #91 granting 6139 Motion for Extension of Time to File

April 6, 2015 2:19 pm by Gene Borio

The PDF is Here

EXCERPT:

Upon consideration of Plaintiffs’ Unopposed Motion For Extension of Time to Serve and File Their First Privilege Challenge Against Lorillard Documents Removed from the Minnesota Depository [ECF Doc. 6139] , and the entire record in this case, it is hereby

ORDERED that the Unopposed Motion is GRANTED; and it is further

ORDERED that Plaintiffs’ First Motion to Compel Production of Lorillard Documents Removed from the Minnesota Depository is now DUE April 22, 2015.

END EXCERPT

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DOCKET for USA v. PHILIP MORRIS USA, et al Jan 1-Apr 6, 2015

April 6, 2015 2:12 pm by Gene Borio

EXCERPT:

04/03/2015 6139 Unopposed MOTION for Extension of Time to File and Serve Their First Privilege Challenge Against Lorillard Documents Removed from the Minnesota Depository by AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK, TOBACCO-FREE KIDS ACTION FUND, UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Crane-Hirsch, Daniel) (Entered: 04/03/2015)

04/06/2015 6140 ORDER granting 6139 Motion for Extension of Time to File. Signed by Judge Richard Levie (Ret.) on 4/4/2015. (Levie, Richard) (Entered: 04/06/2015)

END EXCERPT

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US COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: BRIEF FOR THE UNITED STATES (Dec 1, 2014)

February 22, 2015 6:44 pm by Gene Borio

The PDF is Here

EXCERPT:

In this civil action under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (RICO), the district court found that Defendants for decades operated an illegal racketeering enterprise in violation of 18 U.S.C. § 1962(c) and conspired to do so in violation of 18 U.S.C. § 1962(d). Exercising its remedial authority under 18 U.S.C. § 1964(a), the court ordered Defendants to issue corrective statements to prevent and restrain them from committing future RICO violations, as the district court found them likely to do. The issue presented is whether the text of the corrective statements is consistent with this Court’s prior decision upholding the district court’s use of a correctivestatement remedy under 18 U.S.C. § 1964(a) and the Constitution.

END EXCERPT

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What We Talk about When We Talk about Corrective Statements

February 22, 2015 6:15 pm by Gene Borio

These are the statements at issue in the proceeding Monday morning—primarily the phrase,”deliberately deceived the American public” in the preamble to each statement.

EXCERPT FROM:

BRIEF FOR THE UNITED STATES

Dec 1, 2014

B. PROCEEDINGS ON REMAND

1. On remand, the district court determined the text of the five corrective statements:

A. Adverse Health Effects of Smoking

A Federal Court has ruled that the Defendant tobacco companies4 deliberately deceived the American public about the health effects of smoking, and has ordered those companies to make this statement. Here is the truth:

• Smoking kills, on average, 1200 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 ruled that the Defendant tobacco companies deliberately deceived the American public about the addictiveness of smoking and nicotine, and has ordered those companies to make this statement. Here is the truth:

• Smoking is highly addictive. Nicotine is the addictive drug in tobacco.

• Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.

• It’s not easy to quit.

• When you smoke, the nicotine actually changes the brain—that’s why quitting is so hard.

C. Lack of Significant Health Benefit From Smoking “Low Tar,” “Light,” “Ultra Light,” “Mild,” and “Natural” Cigarettes

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public by falsely selling and advertising low tar and light cigarettes as less harmful than regular cigarettes, and has ordered those companies to make this statement. Here is the truth:

• Many smokers switch to low tar and light cigarettes rather than quitting because they think low tar and light cigarettes are less harmful. They are not.

• “Low tar” and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes.

•All cigarettes cause cancer, lung disease, heart attacks, and premature death—lights, low tar, ultra lights, and naturals. There is no safe cigarette.

D. Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about designing cigarettes to enhance the delivery of nicotine, and has ordered those companies to make this statement. Here is the truth:

• Defendant tobacco companies intentionally designed cigarettes to make them more addictive.

• Cigarette companies control the impact and delivery of nicotine in many ways, including designing filters and selecting cigarette paper to maximize the ingestion of nicotine, adding ammonia to make the cigarette taste less harsh, and controlling the physical and chemical make-up of the tobacco blend.

• When you smoke, the nicotine actually changes the brain—that’s why quitting is so hard.

E. Adverse Health Effects of Exposure to Secondhand Smoke

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of secondhand smoke, and has ordered those companies to make this statement. Here is the truth:

• Secondhand smoke kills over 38,000 Americans per year.

• Secondhand smoke causes lung cancer and coronary heart disease in adults who do not smoke.

• Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function.

• There is no safe level of exposure to secondhand smoke.

JA 169-72 (November 2012 order setting out text of statements), JA437 (June 2014 order making small modifications to the text at the parties’ request).

———

4 The statements disseminated by newspaper and television will specify Defendants—Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA—in a rotating order. See, e.g., JA438, 440. The statements disseminated as package “onserts” and on company websites will list first the Defendant manufacturer of the relevant brand. See, e.g., JA446, 453.

US Court of Appeals Docket for USA v. PHILIP MORRIS USA, et al Jan 07-Feb 06, 2015

February 6, 2015 8:27 pm by Gene Borio

EXCERPT:
01/07/2015 Open Document JOINT APPELLANT REPLY BRIEF [1530542] 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: 01/07/2015 ] Length of Brief: 6,987 Words. [13-5028, 14-5161] (Estrada, Miguel)

02/03/2015 Open Document PER CURIAM ORDER filed [1535709] allocating oral argument time as follows: Appellants - 20 Minutes, Appellee - 20 Minutes; directing party to file Form 72 notice of arguing attorney by 02/17/2015 [13-5028, 14-5161]

02/03/2015 FORM 72 submitted by arguing attorney, Miguel A. Estrada, on behalf of Appellants Altria Group, Inc., Lorillard Tobacco Company, Philip Morris USA Inc. and R.J. Reynolds Tobacco Company in 13-5028, 14-5161 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [13-5028, 14-5161] (Estrada, Miguel)

02/05/2015 FORM 72 submitted by arguing attorney, Melissa N. Patterson, on behalf of Appellee USA in 13-5028, 14-5161 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [13-5028, 14-5161] (Patterson, Melissa)

02/06/2015 FORM 72 submitted by arguing attorney, Howard M. Crystal, on behalf of Appellees American Cancer Society, American Heart Association, American Lung Association, Americans For Nonsmokers’ Rights, National African American Tobacco Prevention Network and Tobacco-Free Kids Action Fund in 14-5161, 13-5028 (For Internal Use Only: Form is restricted to protect counsel’s personal contact information). [14-5161, 13-5028] (Crystal, Howard)

END EXCERPT

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US COURT OF APPEALS–Oral Arguments Set for Feb. 23

February 6, 2015 3:01 pm by Gene Borio

DOJ Appeal–Oral Arguments Set for Feb. 23

The PDF is Here

EXCERPT:

It is ORDERED, on the court’s own motion, that the following times are allotted for the oral argument of this case scheduled for February 23, 2015, at 9:30 A.M.:

Appellants -20 Minutes

Appellees -20 Minutes …

The panel considering this case will consist of Circuit Judge Tatel and Senior Circuit Judges Edwards and Randolph.

END EXCERPT

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US Court of Appeals: Docket for USA v. PHILIP MORRIS USA, et al Sep 29-Jan 07, 2015

January 9, 2015 12:45 am by Gene Borio

•09/29/2014 Open Document JOINT APPENDIX [1514394] filed by Altria Group, Inc., Lorillard Tobacco Company, Philip Morris USA Inc., R.J. Reynolds Tobacco Company and American Cancer Society, American Heart Association, American Lung Association, Americans For Nonsmokers’ Rights, National African American Tobacco Prevention Network, Tobacco-Free Kids Action Fund and USA in 13-5028, 14-5161. [Volumes: 1] [Service Date: 09/29/2014 ] [13-5028, 14-5161] (Estrada, Miguel)

•10/06/2014 Open Document CONSENT AMICUS FOR APPELLANT BRIEF [1515667] filed by Washington Legal Foundation in 13-5028, 14-5161 [Service Date: 10/06/2014 ] Length of Brief: 6, 938 words. [13-5028, 14-5161] (Samp, Richard)

•12/01/2014 Open Document APPELLEE BRIEF [1524816] filed by USA in 14-5161, 13-5028 [Service Date: 12/01/2014 ] Length of Brief: 11,423 Words. [14-5161, 13-5028] (Patterson, Melissa)

•12/03/2014 Open Document CLERK’S ORDER filed [1525387] scheduling oral argument on Monday, 02/23/2015. [13-5028, 14-5161]

•12/05/2014 Open Document MODIFIED PARTY FILER–NOTICE filed [1525648] by Tobacco Control Legal Consortium of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 12/04/2014 ] [14-5161, 13-5028]–[Edited 12/08/2014 by JJA] (Bennigson, Thomas)

•12/08/2014 Open Document AMICUS FOR APPELLEE BRIEF [1525955] filed by Tobacco Control Legal Consortium in 14-5161, 13-5028 [Service Date: 12/08/2014 ] Length of Brief: 6,980 words. [14-5161, 13-5028] (Bennigson, Thomas)

•12/08/2014 Open Document APPELLEE BRIEF [1526047] filed by American Cancer Society, American Heart Association, American Lung Association, Americans For Nonsmokers’ Rights, National African American Tobacco Prevention Network and Tobacco-Free Kids Action Fund in 13-5028, 14-5161 [Service Date: 12/08/2014 ] Length of Brief: 8,746. [13-5028, 14-5161] (Crystal, Howard)

•12/11/2014 Open Document NOTICE FILED [1526684] by R.J. Reynolds Tobacco Company in 13-5028, 14-5161 to withdraw attorney Robert F. McDermott Jr. who represented R.J. Reynolds Tobacco Company and Brown & Williamson Tobacco Corporation in 13-5028 [Service Date: 12/11/2014 ] [13-5028, 14-5161] (McDermott, Robert)

•12/15/2014 FIRST CLASS MAIL RETURNED [1527182] marked “Return to sender - not here”. Mail had been sent to Attorney Mr. Stephen Printiss Murphy for Appellee Novartis Consumer Health, Inc. in 13-5028. [13-5028, 14-5161]

•01/07/2015 Open Document JOINT APPELLANT REPLY BRIEF [1530542] 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: 01/07/2015 ] Length of Brief: 6,987 Words. [13-5028, 14-5161] (Estrada, Miguel)

US COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: APPELLANTS’ REPLY BRIEF (Jan 7, 2015)

January 9, 2015 12:31 am by Gene Borio

20150107 APPELLANTS’ REPLY BRIEF

The PDF is Here

EXCERPT:

In its 2009 opinion, this Court directed the district court to craft corrective statements that are confined to “‘purely factual and uncontroversial information’” that “reveal[s] the previously hidden truth about [Defendants’] products.” . . .

In accordance with that ruling, Defendants stand ready to disseminate statements that provide public-health information about cigarettes. Instead of heeding this Court’s instructions, however, the district court ordered a series of inflammatory statements that require Defendants to denigrate themselves as unscrupulous villains who deceived the American public in the past and who continue to do so today. Indeed, there is nothing at all “corrective” about the anger-inducing, inaccurate statements ordered by the district court. Those statements fall well outside the narrow parameters of this Court’s mandate, exceed the First Amendment’s limitations on compelled speech, and overstep RICO’s limited grant of remedial authority. . .

By requiring Defendants to vilify themselves based on their past conduct, the district court’s statements impose an unnecessary, punitive sanction that cannot be squared with Section 1964(a)’s jurisdictional limitations or the due process prohibition against the imposition of criminal punishment in a civil setting.

END EXCERPT

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DOCKET for USA v. PHILIP MORRIS USA, et al Oct 31-Dec 31, 2014

January 9, 2015 12:10 am by Gene Borio

•10/31/2014 6129 ORDER denying 6117 the Motion for Reconsideration of Univision Communications Inc. inn Objection to the Consent Order Implementing Corrective Statements Remedy. Signed by Judge Gladys Kessler on 10/30/14. (CL, ) (Entered: 10/31/2014)

•11/24/2014 6130 Joint MOTION Regarding Order #1’s Preservation Requirement re 9 Order,,, filed by PHILIP MORRIS USA INC., ALTRIA GROUP, INC., R.J. REYNOLDS TOBACCO COMPANY, LORILLARD TOBACCO COMPANY, and filed by UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Crane-Hirsch, Daniel) (Entered: 11/24/2014)

•11/26/2014 6131 ORDER #53-Remand granting 6130 the Parties’ Joint Motion Regarding Order #1’s Preservation Requirement (see Order for details). Signed by Judge Gladys Kessler on 11/26/14. (CL, ) (Entered: 11/26/2014)

•12/11/2014 6132 NOTICE OF WITHDRAWAL OF APPEARANCE as to R.J. REYNOLDS TOBACCO COMPANY. Attorney Robert Francis McDermott, Jr terminated. (ztnr, ) (Entered: 12/11/2014)

•12/15/2014 6133 NOTICE of Filing Certfication by REGENTS OF THE UNIVERSITY OF CALIFORNIA re 5953 Order, 5733 Order (Attachments: # 1 Exhibit Certification of Compliance with Order #27 Remand)(Leff, Peter) (Entered: 12/15/2014)

•12/15/2014 6134 NOTICE of Filing Certfication by REGENTS OF THE UNIVERSITY OF CALIFORNIA re 5733 Order (Attachments: # 1 Exhibit Certification of Compliance with Order #28 Remand)(Leff, Peter) (Entered: 12/15/2014)

•12/18/2014 6135 NOTICE of Removal of Document from the Minnesota Tobacco Document Depository by R.J. REYNOLDS TOBACCO COMPANY (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Francisco, Noel) (Entered: 12/18/2014)

US COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: APPELLANTS’ OPENING BRIEF (Sep 29, 2014)

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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