American Beverage Association et al v. City and County of San Francisco

Filing 35

STIPULATION AND ORDER re 34 STIPULATION WITH PROPOSED ORDER Joint Stipulation and [Proposed] Order Regarding Non-Enforcement During Pendency of the Case filed by American Beverage Association. Signed by Judge Edward M. Chen on 8/25/15. (bpf, COURT STAFF) (Filed on 8/25/2015)

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LATHAM & WATKINS LLP
James K. Lynch (CA Bar No. 178600)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: [phone]
Facsimile: +1.415.395.8095
LATHAM & WATKINS LLP
Richard P. Bress (Admitted Pro Hac Vice)
[e-mail]
Michael E. Bern (Admitted Pro Hac Vice)
[e-mail]
John S. Cooper (Admitted Pro Hac Vice)
[e-mail]
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Telephone: [phone]
Facsimile: +1.202.637.2201
Attorneys for Plaintiff
The American Beverage Association

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Additional Counsel on Signature Page
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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THE AMERICAN BEVERAGE
ASSOCIATION, CALIFORNIA RETAILERS
ASSOCIATION, CALIFORNIA STATE
OUTDOOR ADVERTISING ASSOCIATION,

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Civil Action No. 3:15-cv-03415-EMC
JOINT STIPULATION AND [PROPOSED]
ORDER REGARDING NONENFORCEMENT DURING PENDENCY
OF THE CASE

Plaintiffs,
v.
THE CITY AND COUNTY OF SAN
FRANCISCO,
Defendant.

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ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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RECITALS
1.

On June 25, 2015, Defendant The City and County of San Francisco (the “City”

or “Defendant”) enacted Ordinance No. 98-15, amending S.F. Admin. Code § 4.20 and entitled
“Ordinance amending the Administrative Code to prohibit advertising of sugar-sweetened
beverages on City property” (the “Ordinance”).
2.

Plaintiffs The American Beverage Association, California Retailers Association,

and California State Outdoor Advertising Association (collectively “Plaintiffs”), filed a
complaint (Docket No. 1) on July 24, 2015, asking this Court, inter alia, to declare that the
Ordinance violates the First Amendment and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, and to enter an injunction barring the City and any
of its officers, employees, or agents from enforcing or threatening to enforce the Ordinance and
any of its implementing regulations.
3.

Plaintiffs alleged that the Effective Date of the Ordinance was July 25, 2015—

thirty days after its enactment.
4.

On July 24, 2015, Plaintiffs also filed a motion for a preliminary injunction

(Docket No. 14), requesting that this Court preliminarily enjoin the City from enforcing or
causing to be enforced any provision of the Ordinance or any regulations implementing the
Ordinance, pending a final judgment.
5.

On August 11, 2015, the City filed a statement of non-opposition to Plaintiffs’

motion for a preliminary injunction (Docket No. 30), and indicated that it would further update
the Court regarding whether, in light of the constitutional concerns raised by Plaintiffs’
complaint and motion for a preliminary injunction, the City planned to enforce the Ordinance.
6.

After conferring with Plaintiffs, the City has agreed not to enforce the Ordinance

pending a final judgment. Pursuant to this stipulation, the Ordinance may not be enforced
against any party as to any leases, permits, or agreements entered into, renewed, or materially
amended on or before the date of a final judgment from this Court.

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ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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7.

Although Plaintiffs reserve the right to seek attorneys’ fees at an appropriate time,

Plaintiffs agree not to contend that this stipulation supports any application for attorneys’ fees.
8.

Plaintiffs further agree that the City’s agreement not to enforce the Ordinance

applies only to Ordinance No. 98-15 and not to any subsequent legislation the City may adopt
relating to the advertisement of sugar-sweetened beverages. All parties reserve their claims
and/or defenses concerning any subsequent legislation.
9.

The parties propose that Plaintiffs’ motion for a preliminary injunction be held in

abeyance pending further developments in this matter, but respectfully submit that it would serve
the interests of efficient and orderly process for the Court to vacate the current briefing schedule
and hearing date, remove the motion from the calendar, and refrain from deciding the motion for
a preliminary injunction at this time.

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ATTORNEYS AT LAW
SAN FRANCISCO

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JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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STIPULATION

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The parties accordingly stipulate as follows:

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1.

final judgment in this case from this Court. Pursuant to this stipulation, the Ordinance may not
be enforced against any party as to any leases, permits, or agreements entered into, renewed, or
materially amended prior to and including the date of a final judgment from this Court. This
stipulation is intended to allow for the orderly adjudication of the complaint.

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2.

Plaintiffs reserve the right to seek attorneys’ fees at an appropriate time, but agree

not to contend that this stipulation supports any application for attorneys’ fees.

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The City agrees and stipulates to non-enforcement of the Ordinance pending a

3.

The parties jointly request that the Court hold Plaintiffs’ motion for a preliminary

injunction in abeyance pending further developments in this matter.

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Dated: August 24, 2015

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Respectfully submitted,
LATHAM & WATKINS LLP

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By /s/ James K. Lynch
James K. Lynch1
LATHAM & WATKINS LLP
505 Montgomery Street
Suite 2000
San Francisco, CA 94111-6538
T +1.415.391.0600
F +1.415.395.8095
[e-mail]

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Richard P. Bress
Michael E. Bern
John S. Cooper
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
T +1.202.637.2200
F +1.202.637.2201
[e-mail]
[e-mail]
[e-mail]

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ATTORNEYS AT LAW
SAN FRANCISCO

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I hereby attest that concurrence in the filing of this document has been obtained from each of
the other Signatories.
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JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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Attorneys for Plaintiff
The American Beverage Association

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Theodore B. Olson (Bar No. 38137)
Andrew S. Tulumello (Bar No. 196484)
Helgi C. Walker (Admitted Pro Hac Vice)
Jacob T. Spencer (Admitted Pro Hac Vice)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
T +1.202.955.8668
F +1.202.530.9575
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Charles J. Stevens (Bar No. 106981)
Joshua D. Dick (Bar No. 268853)
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street
San Francisco, CA 94105-0921
T +1.415.393.8233
F +1.415.374.8469
[e-mail]
[e-mail]

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Attorneys for Plaintiff
California State Outdoor Advertising
Association

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Thomas S. Knox (Bar No. 73384)
KNOX, LEMMON & ANAPOLSKY, LLP
300 Capitol Mall, Suite 1125
Sacramento, CA 95814
T +1.916.498.9911
F +1.916.498.9991
[e-mail]

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Attorneys for Plaintiff
California Retailers Association

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ATTORNEYS AT LAW
SAN FRANCISCO

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JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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Dennis Herrera (Bar No. 139669)
City Attorney
Jeremy Goldman (Bar No. 218888)
Christine Van Aken (Bar No. 241755)
Deputy City Attorneys
City Hall, Room 234
#1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
T +1.415.554.4700
F +1.415.554.4745
[e-mail]
[e-mail]

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Attorneys for Defendant
The City and County of San Francisco

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ATTORNEYS AT LAW
SAN FRANCISCO

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JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC

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[PROPOSED] ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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HON. ward M. Che CHEN
EDWARD M.
Ed
Judge
UNITED STATES DISTRICT JUDGE

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UNIT
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8/25/15

Dated: _______________________

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ATTORNEYS AT LAW
SAN FRANCISCO

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JOINT STIPULATION
CASE NO. 3:15-cv-03415-EMC