Case 1:16-cv-01460-APM Document 115 Filed 02/08/19 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CIGAR ASSOCIATION OF AMERICA, et )
al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 16-1460 (APM)
)
UNITED STATES FOOD AND DRUG )
ADMINISTRATION, et al., )
)
Defendants. )
)
)
EN FUEGO TOBACCO SHOP LLC, d/b/a )
En Fuego Tobacco Shop, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 18-1797 (APM)
)
UNITED STATES FOOD AND DRUG )
ADMINISTRATION, et al., )
)
Defendants. )
)

JOINT STATUS REPORT

Pursuant to the Court’s February 1, 2019 minute entry, the parties respectfully submit this

Joint Status Report.

Joint Statement: At this time, the parties agree to further defer briefing of Counts I, IV,

and V of the complaint in Cigar Association. The parties set forth separate statements below.

Plaintiffs’ Statement: First, as detailed in Plaintiffs’ December 13, 2018 filing (ECF No.

112), cigar and pipe tobacco manufacturers must report the results of testing for harmful or

potentially harmful constituents (“HPHCs”) on November 8, 2019. In light of the Government’s

 Case 1:16-cv-01460-APM Document 115 Filed 02/08/19 Page 2 of 6

failure to extend that deadline, Plaintiffs will move to amend or otherwise file a complaint or

complaints marked as related cases challenging that compliance requirement within the next two

weeks.

Second, Plaintiffs believe that Counts I, IV, and V of the original complaint should remain

stayed, given the pendency of FDA proceedings that may alleviate the need for or change the

content of those claims. Some Plaintiffs may seek dismissal of those claims without prejudice,

with appropriate assurances from the Government or a protective order from this Court,

concomitant with the filing of papers regarding the HPHC testing deadline.

Third, pursuant to the Court’s January 11, 2019 Memorandum Opinion and Order in En

Fuego Tobacco Shop LLC v. FDA (ECF No. 78), Plaintiffs En Fuego Tobacco Shop LLC, Cuba

Libre Enterprises LLC, and Texas Cigar Merchants Association propose the following course of

proceedings in this matter: Plaintiffs’ motion for summary judgment and all briefing in support of

and in opposition to same (ECF Nos. 22, 50, 51, 54, 57) should remain on the docket and be deemed

filed in this Court. Plaintiffs will then file a supplemental brief, not to exceed 15 pages, addressing

the application of D.C. Circuit law and any intervening authority to Plaintiffs’ claims no later than

Friday, March 1, 2019. Defendants may file any supplemental opposition brief, not to exceed 15

pages, no later than Friday, March 22, 2019. Plaintiffs may file any supplemental reply brief, not to

exceed 10 pages, no later than Monday, April 1, 2019. Plaintiffs request that the Court set the

summary judgment motion for hearing at a date convenient to the Court in April 2019.

Plaintiffs believe that Defendants’ proposed defense of res judicata is both substantively and

procedurally meritless. To the extent that Defendants wish to present that defense to the Court,

Plaintiffs believe Defendants should raise the argument as a reason not to grant Plaintiffs summary

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judgment in their supplemental opposition brief. Plaintiffs consent to an additional five pages for

that supplemental opposition brief in the event Defendants choose to raise that new argument therein.

It disserves judicial economy to order two separate rounds of fresh briefing, as Defendants

propose, particularly in light of the Court’s acknowledgment at the August 16, 2018 status

conference that “summary judgment has already been largely briefed,” such that “the work . . .

won’t have to be done from scratch.” Hr’g Tr. at 32–33. With respect to Defendants’ asserted

desire to cross-move for summary judgment, Defendants already presented that issue to the Eastern

District of Texas, the Magistrate Judge denied Defendants’ request, and Defendants effectively

presented all of their arguments in opposition to Plaintiffs’ motion for summary judgment. See

ECF No. 39; ECF No. 49; ECF No. 50. In short, a cross-motion is no more necessary here than it

was in Texas.

Defendants’ Statement: First, with respect to any new claim concerning the reporting of

“harmful or potentially harmful” (HPHC) constituents, Defendants understand that Plaintiffs have

not yet determined whether to move for leave to amend their complaint in this case or, instead, to

bring such a claim as an entirely separate case. Until Plaintiffs make that determination and provide

details about the particular cause(s) of action they plan to assert, Defendants take no position and

reserve the right to respond as appropriate in a future filing.

Second, with respect to Cigar Association, Defendants remain open to having the remaining

claims—i.e., Counts I, IV, and V of the complaint—either further deferred or dismissed without

prejudice, as previously reported. See ECF No. 53, at 3; ECF No. 110, at 3; ECF No. 111, ¶ 2; ECF

No. 112, at 2. Defendants have not received a proposal for “appropriate assurances” for those claims

in the event of dismissal, but will provide their views once Plaintiffs determine how they wish to

proceed.

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Third, with respect to En Fuego, Defendants believe that Plaintiffs’ claims are barred by the

doctrine of res judicata and/or the rule against claim splitting, given the final judgment entered on

the First Amendment claims in Cigar Association, as previewed during the status conference on

August 16, 2018. See Hr’g Tr. at 27–31 (ECF No. 109). Because that threshold issue could be

dispositive, Defendants believe it would be most efficient to have an initial round of res judicata

briefing before embarking on any further merits briefing. Such an initial round of briefing would

not unduly delay proceedings, given that the Cigar Association appeal will not be fully briefed until

June 2019, see Clerk’s Order, No. 18-5195 (D.C. Cir. Jan. 16, 2019), meaning that it would not be

argued until September 2019 at the earliest, see D.C. Cir. Handbook § X.A (Dec. 2018),1 and the

stay entered by this Court would last until at least November 2019, see ECF No. 107 (enjoin[ing the

FDA] from enforcing the . . . cigar and pipe tobacco warnings requirements set forth at 21 C.F.R.

§§ 1143.3 and 1143.5 until 60 days after the final disposition of Plaintiffs’ appeal”).

In any event, should further merits briefing become necessary, Defendants believe that it

would be more appropriate for the parties to file new summary judgment briefs, rather than

supplementing the briefs filed during prior proceedings in Texas. During those proceedings, the

magistrate judge declined to permit Defendants to cross-move for summary judgment in response to

Plaintiffs’ motion for partial summary judgment or, in the alternative, a preliminary injunction. ECF

No. 49. Accordingly, not only is there no procedural mechanism for this Court to enter judgment in

Defendants’ favor, but Defendants have had no opportunity to file a reply brief. Moreover,

Defendants’ opposition brief was limited to 35 pages, in comparison to Plaintiffs’ 41-page opening

brief and 15-page reply brief. ECF Nos. 22, 42. In any event, since briefing in Texas was completed,

1
Available at https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-
%20Handbook%202006%20Rev%202007/$FILE/Handbook20181201.pdf.

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there have been subsequent developments that, as Plaintiffs and this Court have noted, might bear

on the case. Rather than require the Court to flip back and forth among stale merits briefs and

multiple sets of supplemental briefs, most of which were submitted in another Circuit, Defendants

believe that it would be more sensible to begin briefing anew.2

Accordingly, Defendants respectfully propose the following schedule:

• Defendants’ opening brief on res judicata due on March 7, 2019

• Plaintiffs’ opposition brief on res judicata due on March 28, 2019

• Defendants’ reply brief on res judicata due on April 18, 2019

• Plaintiffs’ opening brief on the merits due on May 14, 2019

• Defendants’ opening brief on the merits due on June 13, 2019

• Plaintiffs’ reply brief on the merits due on July 9, 2019

• Defendants’ reply brief on the merits due on July 31, 2018.

Alternatively, should the Court prefer res judicata and merits briefing to be consolidated,

Defendants would respectfully propose the following schedule:

• Plaintiffs’ motion for summary judgment due on March 15, 2019

• Defendants’ combined opposition/cross-motion due on April 15, 2019

• Plaintiffs’ combined reply/opposition due on May 15, 2019

• Defendants’ reply due on June 13, 2019

Defendants respectfully submit that either of these alternatives would permit the Court to

resolve this case well in advance of the expiration of the stay entered last year, as explained above.

2
In all events, if the Court were to accept Plaintiffs’ proposal for supplemental briefing,
Defendants do not agree that Plaintiffs should be afforded yet another reply brief, as they propose.

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Dated: February 8, 2019

Respectfully submitted, Respectfully submitted,

/s/ Michael J. Edney JOSEPH H. HUNT

Michael J. Edney, DC Bar No. 492024 Assistant Attorney General
Ryan E. Meltzer, Texas Bar No. 24092821
NORTON ROSE FULBRIGHT US LLP /s/ Eric Beckenhauer
799 9th Street, NW, Suite 1000 ERIC B. BECKENHAUER
Washington, DC 20001-4501 Trial Attorney
Telephone: (202) 662-0200 U.S. Department of Justice
Fax: (202) 662-4643 Civil Division, Federal Programs Branch
michael.edney@nortonrosefulbright.com 1100 L Street NW
ryan.meltzer@nortonrosefulbright.com Washington, DC 20005
Tel. (202) 514-3338
Attorneys for Plaintiffs International Fax: (202) 616-8470
Premium Cigar and Pipe Retailers E-mail: Eric.Beckenhauer@usdoj.gov
Association, Cigar Rights of America, En
Fuego Tobacco Shop, El Cubano Cigars, and Counsel for Defendants
Texas Cigar Merchants Association

/s/ Mark S. Raffman

Mark S. Raffman, DC Bar No. 414578
Andrew Kim, DC Bar No. 1029348
GOODWIN PROCTER LLP
901 New York Avenue, NW
Washington, DC 20001
Telephone: (202) 346-4000
Fax: (202) 346-4444
mraffman@goodwinlaw.com
andrewkim@goodwinlaw.com

Attorneys for Plaintiff Cigar Association of

America

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