United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE
2006, Judge Gladys Kessler of this Court issued a 1, 600-page
opinion and a final judgment and remedial order in the above
captioned case finding that the defendants had made false,
deceptive, and misleading statements and mandating that they
publish corrective statements as a remedy. See United
States v. Philip Morris USA, Inc., 449 F.Supp.2d 1
(D.D.C. 2006). These corrective statements were to be
published in newspapers and on their corporate websites and
disseminated through television, advertisements, onserts and
retail displays. See id. at 925-41. Since that date,
this case has been to the United States Court of Appeals for
the District of Columbia Circuit on a number of occasions.
The court of appeals has largely affirmed Judge Kessler's
factual findings, legal conclusions, and remedial directives.
most recent opinion, the court of appeals directed two
changes to the text of the corrective statements required by
Judge Kessler in Order #64-Remand (Apr. 19, 2016) [Dkt. No.
6195]. See United States v. Philip Morris USA, Inc.,
855 F.3d 321 (D.C. Cir. 2017). First, the court of appeals
removed four words from the preamble to each of the five
corrective statements: “Here is the truth.”
See id. at 325-26. As a result, the preamble now
reads: “A Federal Court has ordered [Defendants] to
make this statement about [the topic of the
statement].” See id. at 326. Second, with
respect to the corrective statement for low tar, light,
ultra-light, mild, and natural cigarettes (referred to as
“Statement C”), the court of appeals agreed with
the defendants that the “statement about selling and
advertising low tar and light cigarettes as less harmful than
regular cigarettes” was impermissibly
“backward-looking.” See id. at 328-29.
It suggested three possible alternative descriptions that
would be permissible under both the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) and the First
Amendment. See id. at 329. For these two reasons -
and only these reasons - the court of appeals remanded the
matter to this Court for further proceedings. In doing so,
the court explicitly noted: “[W]e see no reason why
extensive proceedings will be required in the district court.
With the minor revisions mandated in this opinion, the
district court can simply issue an order requiring the
corrected statements remedy to go forward.” See
that is precisely what Judge Kessler did. On remand, she
deleted the text “Here is the truth” from the
preamble language and selected one of the three alternatives
proffered by the court of appeals - the one she considered to
be the “simplest and clearest to understand and . . .
easiest for the public to understand.” See United
States v. Philip Morris USA, Inc., 257 F.Supp.3d 1, 4
(D.D.C. 2017). And she ordered that the parties would be
governed by these revised corrective statements. See
Order #67-Remand (June 27, 2017) [Dkt. No. 6208].
that time, the parties have worked together to agree upon and
propose a superseding consent order with respect to the
corrective statements and each of the modes of communication.
They reported their progress first to Judge Kessler, and more
recently to the undersigned, in periodic status reports. The
parties succeeded in negotiating a second superseding consent
order implementing the corrective statements for newspapers
and television, but not for websites or cigarette package
onserts. On October 5, 2017, the Court issued Order
#72-Remand [Dkt. No. 6227] approving the second superseding
consent order for newspapers and television.
appears that the parties have hit a snag in finalizing the
implementation plans for websites and onserts, and the
defendants and remedies parties have filed a motion seeking
the aid of the Special Master in this case. After months of
negotiation, only a few issues remain to be resolved
regarding the implementation of corrective statements for
websites and onserts. The defendants and remedies parties
As to websites, the parties have agreed on updated mockups
for 9 of the 14 websites at issue, including mockups for all
websites presented by the Remedies Parties. All that remains
in dispute is a narrow range of details regarding the mockups
for five of Defendants' brand-specific websites, where
outstanding items relate to issues such as font sizes and
background colors. As to onserts, the parties have agreed on
all mockups for Philip Morris USA. The parties disagree on a
single discrete issue regarding mockups for R.J. Reynolds
Tobacco Company and ITG Brands, LLC - namely, whether a
solid, right-facing triangle needs to appear on the front of
each onsert to indicate that the text continues on the back.
Resolution of these few remaining issues is all that
separates the parties from a final agreement on a superseding
consent order for websites and onserts.
See Mot. at 3-4. The defendants and remedies parties
ask the Court to refer these few remaining issues to the
long-time Special Master in this litigation, retired Judge
Richard A. Levie, and request that he mediate the
parties' differences and help them reach agreement as
quickly as possible. “[C]ompared to the agreements
already reached, ” the defendants and remedies parties
explain, “these remaining issues are limited and the
gaps can be bridged.” See id. at 5.
opposition, the plaintiff argues that the Court does not have
the authority to compel mediation before the Special Master -
including under its inherent powers - absent all parties'
consent, nor is there good reason to do so. See
Opp'n at 10-15. Furthermore, the plaintiff takes the
position that the deadlines set forth in Order #64-Remand
remain in full force with respect to websites and onserts
and, as a result, that it may seek enforcement at any time.
See id. at 18-22. The plaintiff thus asks that the Court
not bar the plaintiff from seeking enforcement, as the
alternative would amount to “mandatory and seemingly
open-ended mediation.” See id. at 9, 15-18.
reviewed the parties' briefings and the record in this
case, the Court does not believe that now is the time to seek
enforcement or move to hold defendants in contempt of court.
The parties have come too far. Continued good faith
negotiations will provide the most expedient avenue for all
parties to resolve the very few and discrete issues that
remain. Such negotiations should resume promptly and proceed
apace. If necessary, the Court will resolve whether
resolution requires the assistance of Judge Levie.
it is hereby
that the parties shall appear for a hearing at 10:00 a.m. on
March 13, 2018. Should the parties resolve the remaining
issues prior to the hearing, they may file a proposed second
superseding consent order for websites and onserts or a
motion to continue the hearing indicating that such a
proposed consent order is forthcoming. Otherwise, the parties
shall appear to explain to the Court why resolution of these
issues has not yet occurred and argue their respective
positions on the Court's referral of this matter to the