United States v. Philip Morris USA

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No. 99-2496 (PLF) ) PHILIP MORRIS USA, INC., et al., ) ) Defendants. ) ____________________________________)

ORDER #125 – REMAND

On May 3, 2022, the parties informed the Court that “[a]fter extensive, months-

long discussions and negotiations, [they] have reached an agreement in principle to settle the

point-of-sale messaging portion of the corrective-statements remedy.” Joint Motion for Status

Conference and Stay of Deadlines [Dkt. No. 6496] at 1.1 The parties intend to jointly propose a

consent order to govern the corrective-statements remedy at the point of sale (the “Proposed

Point-of-Sale Consent Order”), and they seek the Court’s review and approval of that consent

order to implement the terms of any settlement. In deciding whether to approve the settlement,

the Court will conduct a “Point-of-Sale Settlement Hearing” on July 28, 2022, beginning at

10:00 a.m. (Eastern Daylight Time), which will continue if necessary on July 29, 2022,

1 The parties are the United States and the Public Health Intervenors (collectively, “plaintiffs”); Philip Morris USA Inc., Altria Group, Inc., and R.J. Reynolds Tobacco Company (individually, as successor in interest to Brown & Williamson Tobacco Corporation, and as successor to Lorillard Tobacco Company) (collectively, “defendants”); and ITG Brands, LLC, Commonwealth Brands, Inc., and Commonwealth-Altadis, Inc. (collectively, the “remedies parties”). Defendants and the Remedies Parties are collectively referred to as the “manufacturers.” beginning at 10:00 a.m. (Eastern Daylight Time). The Point-of-Sale Settlement Hearing will be

held in the Ceremonial Courtroom (Courtroom 20) at the E. Barrett Prettyman Courthouse at 333

Constitution Avenue N.W., Washington, D.C. 20001. Accordingly, it is hereby

ORDERED that the Point-of-Sale Settlement Hearing will be governed by the

following procedures:

1. The manufacturers shall prepare a proposed notice regarding the Proposed Point-

of-Sale Consent Order (the “Proposed Notice”) that, when finalized, shall be sent,

along with this Order, to all participating retailers (as will be defined in the

Proposed Point-of-Sale Consent Order) in accordance with any applicable

provisions in participating retailer contracts and consistent with how the

manufacturers regularly communicate with their participating retailers and

participating retail locations (as will be defined in the Proposed Point-of-Sale

Consent Order). The Proposed Notice shall include instructions for how the

participating retailers may submit written statements to the Court with their views

opposing or supporting the Proposed Point-of-Sale Consent Order, as well as

details about how to attend the Point-of-Sale Settlement Hearing. The

manufacturers sent the Proposed Notice to the plaintiffs via email on

June 24, 2022.

2. Plaintiffs shall provide the manufacturers any comments or objections to the

Proposed Notice via email on or before July 5, 2022. The manufacturers shall file

a final, revised notice (the “Final Notice”) on the public docket on or before

July 8, 2022.

3. The manufacturers shall provide the Final Notice, this Order, and a copy of the

2 Proposed Point-of-Sale Consent Order to all participating retailers on or before

July 15, 2022. On or before that date, the manufacturers shall file on the public

docket a confirmation of the method(s) by which they provided those items to

participating retailers.

4. Any participating retailer, as will be defined in the Proposed Point-of-Sale

Consent Order, may submit a written statement to this Court with its views

opposing or supporting the Proposed Point-of-Sale Consent Order on or before

July 25, 2022. All written statements must be submitted to the Court at the

following email address: DCD_PhilipMorrisSettlement@dcd.uscourts.gov. Each

written statement shall describe: (a) whether the participating retailer opposes or

supports the Proposed Point-of-Sale Consent Order, and the reasoning underlying

its views; (b) whether the participating retailer wishes to be heard at the Point-of-

Sale Settlement Hearing; and (c) if so, whether the participating retailer has any

evidence, such as photographs, that it wishes to present at the Point-of-Sale

Settlement Hearing or would like this Court to consider.

5. During the Point-of-Sale Settlement Hearing, the following procedures shall

apply:

a. Opening Statement. Plaintiffs and the manufacturers will each be given

twenty minutes to present opening remarks in support of the Proposed

Point-of-Sale Consent Order.

b. Objections.

i. Participating retailers that have submitted a written statement. If a

participating retailer has submitted a written statement and wishes

3 to be heard at the Point-of-Sale Settlement Hearing, the

participating retailer shall be allocated ten minutes to present its

argument.

ii. Participating retailers that have not submitted a written statement.

If a participating retailer has not submitted a written statement but

wishes to be heard at the Point-of-Sale Settlement Hearing, the

participating retailer shall be allocated five minutes to present its

c. Responses to Objections. After all objections have been made by

participating retailers, the plaintiffs and the manufacturers shall each have

an opportunity to respond to the objections raised at the Point-of-Sale

Settlement Hearing and in the written submissions. The time allotted to

the parties for responding to objections will be determined by the Court at

the hearing.

d. Closing Statement. Plaintiffs and the manufacturers will each be given

twenty minutes to present closing remarks in support of the Proposed

6. Virtual attendance at the Point-of-Sale Settlement Hearing will be permitted only

for the parties and the non-party national retailer groups, as well as any

participating retailers that have submitted written statements to the Court in

advance of the hearing. Zoom videoconference information will be made

available upon request by the Courtroom Deputy Clerk, Tanya Johnson, who can

be contacted at Tanya_Johnson@dcd.uscourts.gov. Due to technology

4 constraints, those participating virtually will not be able to present any exhibits or

demonstratives to the Court or view any that are physically displayed in the

Ceremonial Courtroom during the hearing. Virtual attendance at the Point-of-

Sale Settlement Hearing will not be permitted for any participating retailer that

has not submitted a written statement to the Court in advance of the hearing. Any

such participating retailers may attend in-person or listen to the hearing via the

public phone line. Digitally signed by SO ORDERED. Paul L. Friedman Date: 2022.06.28 13:14:20 -04'00' _______________________________ PAUL L. FRIEDMAN United States District Judge

DATE: June 28, 2022