R.J. REYNOLDS TOBACCO COMPANY et al v. UNITED STATES FOOD AND DRUG ADMINISTRATION et al

Filing 37

Memorandum in opposition to re 36 MOTION for Order for Court to Consider Arguments Made in Summary Judgment Memorandum in Deciding Preliminary Injunction filed by COMMONWEALTH BRANDS INCORPORATED, LIGGETT GROUP LLC, LORILLARD TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, SANTA FE NATURAL TOBACCO COMPANY, INC.. (Attachments: # 1 Text of Proposed Order)(Francisco, Noel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
R.J. REYNOLDS TOBACCO COMPANY,
LORILLARD TOBACCO COMPANY,
COMMONWEALTH BRANDS, INC.,
LIGGETT GROUP LLC, and SANTA FE
NATURAL TOBACCO COMPANY, INC.,

Civil Action No. 11-01482 (RCL)

Plaintiffs,
v.
UNITED STATES FOOD AND DRUG
ADMINISTRATION, MARGARET
HAMBURG, Commissioner of the United
States Food and Drug Administration, and
KATHLEEN SEBELIUS, Secretary of the
United States Department of Health and
Human Services,
Defendants.
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION
TO INCORPORATE SUMMARY JUDGMENT BRIEF
INTO OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs oppose Defendants’ motion to “incorporate” their recently-filed summary
judgment brief into their opposition to Plaintiffs’ motion for a preliminary injunction.
Defendants’ motion, which effectively attempts to create a sur-reply in opposition to Plaintiffs’
preliminary injunction, is a clear end run around the briefing schedule set by this Court. Under
that schedule, Defendants had twenty-one days to prepare their preliminary injunction
opposition—three times the default deadline for such a brief under the local rules. LCvR
65.1(c). Plaintiffs, in contrast, filed their preliminary injunction reply brief just seven days after
Defendants’ opposition. Dkt. No. 23. The Court, moreover, gave the parties an additional nine
days after the argument to file supplemental briefs—an opportunity of which Defendants took

full advantage. Dkt. No. 31. Defendants have therefore offered no valid reason why they should
be entitled to a procedurally improper sur-reply brief.
In any event, even if this Court considers Defendants’ summary judgment brief—which
simply repackages arguments already made—Plaintiffs respectfully request that it not be allowed
to delay adjudication of Plaintiffs’ preliminary injunction motion. The Court previously rejected
Defendants’ attempts at such delay, recognizing that resolution of Plaintiffs’ preliminary
injunction motion by the end of October was necessary to prevent Plaintiffs from unnecessarily
expending millions of dollars and thousands of employee hours in furtherance of an
unconstitutional mandate. See Minute Order Denying Defendants’ Motion to Establish Briefing
Schedule (Aug. 25, 2011). The Court should not allow Defendants’ procedurally improper and
eleventh hour motion to inflict the very irreparable harm that this Court’s case management
schedule was designed to prevent.

Respectfully Submitted,

Dated: October 26, 2011

/s/ Noel J. Francisco________________
Noel J. Francisco (D.C. Bar No. 464752)
Geoffrey K. Beach (D.C. Bar No. 439763)
Warren Postman (D.C. Bar No. 995083)

Floyd Abrams (admitted pro hac vice)
Joel Kurtzberg (admitted pro hac vice)
Kayvan Sadeghi (admitted pro hac vice)

JONES DAY
51 Louisiana Avenue, NW
Washington, D.C. 20001-2113
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

CAHILL GORDON & REINDEL LLP
80 Pine Street
New York, NY 10005-1702
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
-and-

Counsel for Plaintiff R.J. Reynolds and
Santa Fe Natural Tobacco Company

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Philip J. Perry (D.C. Bar No. 434278)
LATHAM & WATKINS LLP
555 11th Street, NW, Suite 1000
Washington DC 20004-1304
Telephone:[phone]
Facsimile: [phone]
[e-mail]

Counsel for Plaintiff Commonwealth
Brands, Inc.

Patricia A. Barald (D.C. Bar No. 218016)
Scott D. Danzis (D.C. Bar No. 481426)
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
Telephone: [phone]
Facsimile: 202.662.6291
[e-mail]
[e-mail]
Counsel for Plaintiff Lorillard
Tobacco Company

Jonathan D. Hacker (D.C. Bar No. 456553)
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, D.C. 20006-4061
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Plaintiff Liggett Group LLC

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