United States Court of Appeals, District of Columbia Circuit
United States of America, United States Department of Justice, et al., Appellees
Philip Morris USA Inc., Formerly known as Philip Morris Incorporated, Appellee R.J. Reynolds Tobacco Company, Appellant Brown & Williamson Tobacco Corporation, Directly and as successor by merger to American Tobacco Company, et al., Appellees
September 13, 2016
from the United States District Court for the District of
Columbia (No. 1:99-cv-02496)
Jeffrey A. Mandell argued the cause for appellant. With him
on the briefs were Noel Francisco and Peter J. Biersteker.
David M. Bernick entered an appearance.
S. Yelin, Attorney, U.S. Department of Justice, argued the
cause for appellee United States of America. With him on the
brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Mark B. Stern and Alisa B. Klein,
Attorneys. Melissa N. Patterson, Attorney, entered an
M. Crystal and Katherine A. Meyer were on the brief for
plaintiff-intervenors-appellees Tobacco-Free Kids Action
Fund, et al.
Before: Tatel, Circuit Judge, and Edwards and Sentelle,
Senior Circuit Judges.
the latest appeal in the government's long-running RICO
case against the nation's major cigarette manufacturers.
Ten years ago, the district court issued a comprehensive
remedial order, which included a requirement that defendants
and their successors televise "corrective
statements" about the dangers of smoking. Eight years
later, one defendant, R.J. Reynolds Tobacco Company (RJR),
sought to dissolve that order as void under Federal Rule of
Civil Procedure 60(b)(4) and unjust under Rule 60(b)(6). The
district court denied RJR's motion, and we affirm. As the
Supreme Court made clear in United States Student Aid
Funds, Inc. v. Espinosa, relief under Rule 60(b)(4) is
available "only in the rare instance where a judgment is
premised either on a certain type of jurisdictional error or
on a violation of due process." 559 U.S. 260, 271
(2010). None of those defects exists here. And although RJR
could have challenged its remedial obligations under Rule
60(b)(6), its failure to do so in a timely manner dooms its
1999, the United States sued RJR, Brown & Williamson
Tobacco Corporation, and several other cigarette
manufacturers under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961-68,
alleging a conspiracy to deceive the American public about
the dangers of cigarettes. The history of this case is
described in our many prior decisions. See, e.g.,
United States v. Philip Morris USA, Inc., 566 F.3d
1095, 1105-10 (D.C. Cir. 2009) (Remedial Opinion)
(affirming most aspects of the district court's liability
finding and remedial order); United States v. Philip
Morris USA Inc., 801 F.3d 250, 252-56 (D.C. Cir. 2015)
(Corrective Statements Opinion) (largely upholding
the content of the corrective statements). For purposes of
this appeal, the relevant facts are as follows.
to trial, Brown & Williamson merged its domestic tobacco
operations with RJR and reconstituted itself into a passive
holding company called Brown & Williamson Holdings (BWH).
The district court then conducted a nine-month bench trial
followed by a two-week remedial hearing. In 2006, the court
found defendants liable and ordered a complex set of
remedies, including a prohibition on the use of misleading
terms such as "ultra light" and "low tar,
" a ban on deceptive statements about the addictiveness
of cigarettes, and the remedy at issue here: a requirement
that each defendant televise corrective advertisements about
the health consequences of smoking. United States v.
Philip Morris USA, Inc., 449 F.Supp.2d 1, 938-45 (D.D.C.
2006). The remedial order required the ads to be run in
primetime on one of "three major television
networks" at least once a week for a year. Id.
at 941. Central to this case, the order expressly stated that
the injunction applied to "each of the Defendants,
except [three], and to each of their . . . successors."
Id. at 937.
tobacco manufacturers appealed, challenging many aspects of
the order, including the corrective statements remedy and its
application to BWH. Relying on an earlier opinion in which we
held that RICO's remedial provision, 18 U.S.C. §
1964(a), authorizes only forward-looking remedies aimed at
preventing future violations of the Act, the manufacturers
argued that the district court lacked authority to require
corrective statements. They also argued that the district
court had no basis for subjecting BWH to the remedial order
given its status as a passive holding company. In 2009, we
upheld the corrective statements remedy and remanded for fact
finding on "the extent of BWH's control over tobacco
operations" and its "current capabilities" to
"commit future RICO violations." Remedial
Opinion, 566 F.3d at 1135, 1140. On remand, the parties
agreed that BWH was not a defendant and thus not subject to
the injunction, including the obligation to televise
corrective ads. See United States v. Philip Morris USA,
Inc., No. 99-2496, ECF No. 5846 (D.D.C. Dec. 22, 2010)
(approving the parties' agreement concerning BWH).
years later, the district court issued an order setting forth
the final text of the corrective statements, which the
manufacturers appealed. See United States v. Philip
Morris USA, Inc., 907 F.Supp.2d 1, 27 (D.D.C. 2012).
While that appeal was pending, the parties began to negotiate
how the statements would be disseminated. Although they
agreed on most issues, they disagreed about whether RJR had
to televise two sets of ads, one as an original defendant and
another in its capacity as Brown & Williamson's
successor. In RJR's view, requiring it to run two sets of
ads exceeded the court's remedial authority. For its
part, the government insisted that double ads were required
because the injunction, by its plain terms, applies to
"each of the Defendants . . . and to each of their . . .
successors." See Philip Morris, 449 F.Supp.2d
at 937. In June 2014, the district court entered a consent
order outlining the implementation plan and explaining that
by agreeing to the order RJR had not "waiv[ed] [its] . .
. challenge to the requirement that it publish Corrective
Statements on television in its capacity as successor to
Brown & Williamson." United States v. Philip
Morris USA, Inc., No. 99-2496, 2014 WL 2506611, at *10
(D.D.C. June 2, 2014).
after entry of the consent order, RJR filed a Rule 60 motion
seeking "relief from those provisions of [the remedial
order] . . . that require corrective statements on behalf of
[Brown & Williamson]." Philip Morris, No.
99-2496, ECF No. 6103, at 1 (D.D.C. June 11, 2014).
Specifically, RJR invoked Rule 60(b)(4), which allows courts
to reopen final orders that are "void, " and Rule
60(b)(6), which allows courts to revisit final orders for
"any other reason that justifies relief."
See Fed. R. Civ. P. 60. In other words, RJR sought
to modify the injunction so that it would have to run only
one set of ads. In May 2015, we largely upheld the order
specifying the text of the corrective ...