United States District Court, District of Columbia
Kessler, United States District Judge
case was filed on September 22, 1999. In 2006, after a nine
month trial, the Court ruled that the Defendant Cigarette
Manufacturers had for decades conspired to deny the health
effects of smoking in violation of RICO. USA v. Philip
Morris. Inc.. 449 F.Supp.2d 1 (D.D.C. 2006)
Court ordered in that Opinion, among many other Orders, that
Defendants disseminate corrective statements relating to the
health effects of smoking in newspapers, on TV, on cigarette
packages, and web sites. Id. at 938-41. As Judge
Sentelle pointed out in the Court of Appeals' most recent
Opinion relating to corrective statements, "[f]or more
than a decade the parties have battled over the precise
language of those statements -- both in and out of
court." United States of America. United States
Department of Justice, et al., Appellees v. Philip Morris
USA. Inc., formerly known as Philip Morris, Incorporated, et
al., Appellants, and Brown & Williamson Tobacco
Corporation. Directly and as Successor by Merger to American
Tobacco Company, et al. Appellees. #16-5101, decided
April 25, 2017. Once again, the case has been remanded to
this Court, on June 20, 2017 (received June23, 2017), to
address the issue of corrective statements.
the incredible amount of judicial time used, as well as
lawyer time, and the actual findings of the Court of Appeals
in its most recent Opinion, this Court will do her best to
address them in the most efficient and succinct manner
possible. The Court of Appeals focused on several separate
First, the Court of Appeals agreed with Appellants that the
preambles which had been approved by the District Court in an
earlier round of this litigation did suggest prior misconduct
by Defendants which, of course, is not permitted under RICO.
See USA v. Philip Morris USA. Inc., 566 F.3d 1095,
1140 (D.C. Cir. 2009) ("2009 Opinion").
Judge Sentelle, writing for a unanimous court, concluded in
its most recent Opinion that "[t]his problem is remedied
by simply removing the phrase "Here is the Truth, "
so that the preambles read only:
A federal court has ordered [Defendants] to make this
statement about [the topic of the statement].
See, p. 7 of Court of Appeals Remand.
Court of Appeals ruled that, modified in this fashion, the
preamble would satisfy RICO notwithstanding other arguments
offered by the Defendants.
Second, Defendants argue that even such modified preambles
would violate their First Amendment rights. The Court of
Appeals ruled, as it had in its earlier Opinions, that the
present controversy is governed by Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626 (1985), and reminded
the Parties that the Court had previously so held in its 2009
Opinion that Zauderer controlled the First Amendment
issues in this case. 2009 Opinion, 566 F.3d at 1144-45. See
also Revised Preamble Opinion, 164 F.Supp.3d at 126.
Court of Appeals also noted that it "did not question
the district court's ruling that Zauderer was
the appropriate standard in this case." Moreover,
because "a court involved in later phases of a law suit
should not reopen questions [already] decided, "
Crocker v. Piedmont Aviation. Inc., 49 F.3d 735, 739
(D.C. Cir. 1995), "we continue to analyze the preambles
under Zauderer." See, p. 11 of Remand.
Court of Appeals also found that the preamble requirements
were "reasonably related to the [Government's]
interest in previous deceptions of consumers."
Zauderer, 471 U.S. at 651. See p. 12 of Remand. The
Court made it clear that the "modification discussed
above removes any inference of past misconduct, " and
that mandating the inclusion of a one sentence preamble is
not unduly burdensome.
Defendants also challenge the topic descriptions in the
preambles to statements (C) and (D), arguing that they exceed
the remedies' scope of RICO because they convey past
Statement (C), Defendants also argue that statement (C)'s
topic description, which requires Defendants to make the
statement about selling and advertising low tar and light
cigarettes as less harmful than regular cigarettes" is
not acceptable. The Court of Appeals has determined that this
language had not been previously considered and, therefore,
is backward-looking after implying that Defendants previously
sold and advertised cigarettes in such a way. After reaching
that conclusion, the Court of Appeals offered the ...