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United States of America v. Philip Morris Usa

June 22, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PHILIP MORRIS USA, INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

This civil action brought by the United States under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, is now before the Court on Defendants' Motion to Clarify Order #1015 Concerning Enforceability [Dkt. No. 5896]. Upon consideration of the Motion, Oppositions, Reply, and the entire record herein, and for the reasons stated below, Defendants' Motion to Clarify is denied.

I. BACKGROUND

On August 17, 2006, this Court issued a lengthy opinion finding that all Defendants "(1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962(d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962(c)." United States v. Philip Morris USA, Inc., et al., 449 F. Supp. 2d 1, 26 (D.D.C. 2006). In particular, the Court held that Defendants "knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent statements, representations, and promises." Id. at 852.*fn1

Accordingly, the Court imposed a number of injunctive measures in order to prevent future violations of RICO. Id. at 937-945. On May 22, 2009, the Court of Appeals for the District of Columbia Circuit affirmed this Court's judgment of liability and affirmed major provisions in its Remedial Order. United States v. Philip Morris USA, Inc., et al., 566 F.3d 1095, 1150 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 3501 (2010). The Court of Appeals remanded the case with directions to address four discrete remedial issues.*fn2

While the case has been an remand for consideration of the issues specified by the Court of Appeals, Defendants have presented a litany of other arguments for clarifying, limiting, reformulating, or entirely vacating this Court's factual findings and Remedial Order, Order #1015. In the Motion currently before the Court, Defendants request that language be added to Order #1015 that "(1) clarifies that this Court has exclusive jurisdiction to enforce Order #1015; (2) confirms that only the Government may seek to enforce Order #1015 absent leave of Court; and (3) requires the parties to meet and confer pursuant to LCvR 7(m) before motions to enforce Order #1015 are filed, absent exigent circumstances." Defs.' Mot. 1-2. To serve these purposes, Defendants propose that the Court add the following provision to Order #1015:

V. Enforcement

22. This Court retains exclusive jurisdiction over this case for the purpose of issuing such further orders or directions as may be necessary or appropriate for the construction or carrying out of this Order, for the modification of any of the provisions thereof, for the enforcement of compliance therewith, and for the punishment of any violation thereof. Only Plaintiff and Defendants may seek to enforce the provisions of this Order without leave of Court to do so. Before seeking to enforce the provisions of this Order, Plaintiff and any affected Defendant shall comply with LCvR 7(m) by conferring in good faith in an attempt to narrow or resolve any issues raised without Court intervention; provided, however, Plaintiff may in its discretion seek to enforce this Order without first complying with LCvR 7(m) if it concludes that emergent circumstances require immediate enforcement action.

Id. at 2-3.

Defendants filed their Motion on March 24, 2011. On April 25, 2011, the Government ("Gov.'s Opp'n") [Dkt. No. 5926] and the Public Health Intervenors ("PHI's Opp'n") [Dkt. No. 5927] filed separate Oppositions. On April 5, 2011, Defendants filed their Reply [Dkt. No. 5928].

II. STANDARD OF REVIEW

The parties disagree, as an initial matter, as to what standard of review should govern Defendants' Motion. Intervenors argue that Defendants' Motion should be reviewed under Federal Rule of Civil Procedure 60(b), because "Defendants plainly seek to modify the Order." PHI's Opp'n 5 (emphasis in original). Defendants respond that no rule governs their Motion because "Defendants' motion is in fact a classic motion for clarification." Defs.' Mot. 3.

Defendants are correct that there is no Federal Rule of Civil Procedure specifically governing "motions for clarification." The question, however, is whether Defendants' Motion is properly construed as a motion seeking relief from a judgment or order under Rule 60(b). U.S. v. Hart, 933 F.2d 80, 84 (1st Cir. 1991) ("prolific case law across the circuits maintains that a title given to a motion . . . does not control its meaning."); Catz v. Chalker, 566 F.2d 839, 841 (9th Cir. 2009).

On the one hand, Intervenors observe that a number of courts have interpreted a "motion for clarification" as a Rule 60(b) motion. See PHI's Opp'n 5; Napoli v. Town of New Windsor, 600 F.3d 160, 170 (2d Cir. 2010); In re Walter, 282 F.3d 434, 439 (6th Cir. 2002); see also Vaughn v. Laurel Cnty. Jail, 85 F.3d 630, 1996 WL 254660, at *1 (6th Cir. May 14, 1996) (motion for clarification reviewed under Rule 60(b) because "[a]ny post-judgment motion that asks for relief other than correction ...


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