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

Filing 48

MOTION to Expedite 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’ MOTION FOR EXPEDITED REVIEW
OF THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
On November 29, 2011, Defendants in this action filed an interlocutory appeal of this
Court’s November 7, 2011 order granting Plaintiffs’ request for a preliminary injunction (“PI
Order”). See Dkt. No. 45. As this Court recognized in its scheduling hearing of August 23, 2011,
the Court’s decision on summary judgment regarding the validity of the Rule will inevitably be
appealed as well. Plaintiffs therefore respectfully request that this Court grant expedited review
of the parties’ cross-motions for summary judgment.
Granting Plaintiffs’ motion would further judicial economy. Because this Court
addressed the merits of the parties’ claims in great detail in its preliminary injunction ruling,
Plaintiffs believe that this Court could rule on the summary judgment cross-motions
expeditiously. A prompt ruling would, moreover, (a) provide the Court of Appeals with the

benefit of this Court’s resolution of the merits of this case and (b) give the Court of Appeals the
opportunity to consolidate the summary judgment appeal with the Government’s current appeal
of the PI Order. Perhaps most importantly, resolution of the merits of this dispute would provide
the Court of Appeals and, potentially, the Supreme Court, with a clean vehicle to address the
merits of Plaintiffs’ challenge to the new graphic warnings. All parties, of course, have a strong
interest in such a prompt and efficient resolution of this case.
As the argument at the preliminary injunction hearing on September 21, 2011 addressed
in large part the merits of Plaintiffs’ challenge to the Rule, and as the Court has had the benefit of
extensive briefing on summary judgment, Plaintiffs submit that a further hearing on summary
judgment is not necessary. However, should the Court conclude otherwise, Plaintiffs are
available for such a hearing at the Court’s earliest convenience.
Accordingly, Plaintiffs request that this Court grant their Motion for Expedited Review.
A draft order is attached hereto. Plaintiffs have conferred with Defendants, and they have
informed Plaintiffs that they take no position on the motion, but will file a brief response.
Respectfully Submitted,

Dated: December 12, 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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