UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Debra Morriss
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN CIGARETTES AND
`PACKAGING THEREOF
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`-
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`2
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`Investigation No. 337-
`
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`BROWN & WILLIAMSON TOBACCO CORP.'S
`OPPOSITION TO R.E. TOBACCO SALES, INC.'S MOTION
`FOR A PROTECTIVE ORDER TO PREVENT INSPECTION OF PREMISES
`
`On 17 January 2000, Brown & Williamson Tobacco Corporation ("Brown & Williamson")
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`served R.E. Tobacco Sales, Inc. ("R.E. Tobacco") with a notice to inspect and photograph R.E.
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`Tobacco's warehouse and office. R.E. Tobacco has moved to quash the notice.
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`Contrary to R.E. Tobacco's statement in its motion, counsel have not intensively discussed
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`R.E. Tobacco's objection to the requested inspection. R.E. Tobacco's counsel is perhaps confbsing
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`several discussions concerning her other client, Prestige Distribution & Storage, Inc. ("Prestige"),
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`which also objects to an inspection. Concededly, some of the points discussed relative to Prestige
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`presumably also apply to R.E. Tobacco, but there have not been intensive discussions focusing
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`specifically on R.E. Tobacco. We have no desire to belabor this point, which no doubt is the result
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`of'honest confbsion on counsel's part, except to say that R.E. Tobacco's counsel (during discussions
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`relating to Prestige) never articulated a sound objection to permitting an inspection.
`
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`Washington, D.C.
`
`Before the Honorable Debra Morriss
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN CIGARETTES AND
`PACKAGING THEREOF
`
`-
`
`2
`
`Investigation No. 337-
`
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`)
`)
`)
`)
`)
`)
`
`BROWN & WILLIAMSON TOBACCO CORP.'S
`OPPOSITION TO R.E. TOBACCO SALES, INC.'S MOTION
`FOR A PROTECTIVE ORDER TO PREVENT INSPECTION OF PREMISES
`
`On 17 January 2000, Brown & Williamson Tobacco Corporation ("Brown & Williamson")
`
`served R.E. Tobacco Sales, Inc. ("R.E. Tobacco") with a notice to inspect and photograph R.E.
`
`Tobacco's warehouse and office. R.E. Tobacco has moved to quash the notice.
`
`Contrary to R.E. Tobacco's statement in its motion, counsel have not intensively discussed
`
`R.E. Tobacco's objection to the requested inspection. R.E. Tobacco's counsel is perhaps confbsing
`
`several discussions concerning her other client, Prestige Distribution & Storage, Inc. ("Prestige"),
`
`which also objects to an inspection. Concededly, some of the points discussed relative to Prestige
`
`presumably also apply to R.E. Tobacco, but there have not been intensive discussions focusing
`
`specifically on R.E. Tobacco. We have no desire to belabor this point, which no doubt is the result
`
`of'honest confbsion on counsel's part, except to say that R.E. Tobacco's counsel (during discussions
`
`relating to Prestige) never articulated a sound objection to permitting an inspection.
`
`
`
`Defense counsel's main objection is that the inspection will supposedly be disruptive.
`
`Complainant's counsel has made it clear that Brown & Williamson has no desire to inspect or
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`photograph all of the cigarettes - case-by-case, carton-by-carton - at the warehouse, whether it be
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`R E . Tobacco's warehouse or Prestige's warehouse. The point of the inspection is to get a general
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`sense of how R.E. Tobacco operates, the amount of space needed for such an operation, the type of
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`equipment used, the number of employees, whether the warehouse has special atmospheric controls
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`which might effect stored cigarettes. All of these matters are relevant to assessing whether there are
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`entry barriers that would make it diflicult for another company to simply take over R.E. Tobacco's
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`gray market operations, if R.E. Tobacco is enjoined from conducting the business in KOOL and
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`LUCKY STRIKE cigarettes. The physical characteristics of the warehouse could affect the quality
`OF the cigarettes that are sold, and thus the condition of the warehouse is relevant to the issues
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`bearing on whether Brown & Williamson's trademarks have been degraded.
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`The inspection will not be disruptive or intrusive. We anticipate doing the inspection with
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`two persons, maybe three. It will not be necessary for R.E. Tobacco to cease its operations during
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`the inspection. We ask for permission to take a few general photographs, nothing more. We believe
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`th,at some photographic evidence will assist the Judge in understanding how R.E. Tobacco conducts
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`it:; operations.
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`R.E. Tobacco says that the notice is defective because R.E. Tobacco is not located at ''782
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`N.W. 42"d Avenue, #534, Miami, Florida 33126." That is the address alleged at paragraph 14 of
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`the complaint, and R.E. Tobacco admitted that paragraph. R.E. Tobacco now says that it is
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`2
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`located at 7400 Northwest 7th Street, Suite 110, Miami, Florida 33 126. The important point is
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`that R.E. Tobacco is doing business somewhere, and we doubt that the general physical
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`circumstances of its current location differ greatly from its prior location. There is no reason that
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`RE. Tobacco cannot permit the inspection at its new location.
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`Brown & Williamson's request for inspect and photograph is a modest request that will
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`not prejudice R.E. Tobacco. Indeed, we are perplexed that R.E. Tobacco is fighting so hard to
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`prevent a perfectly reasonable inspection.
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`WHEREFORE, Brown & Williamson respectfblly requests that the Judge deny R.E
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`Tobacco's motion for a protective order, and that R.E. Tobacco be ordered to permit the
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`inspection and photographing of its office and warehouse.
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`213 January 2000
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`Respecthlly submitted,
`
`evin M. O'Brien
`
`BAKER & M'KENZIE
`8 15 Connecticut Avenue, N. W
`Washington, D.C. 20006
`(202) 452-7000
`
`Attorneys for Complainant
`Brown & Williamson Tobacco Corp.
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`3
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`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Debra Morriss
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN CIGARETTES AND
`P'ACKAGING THEREOF
`
`)
`)
`1
`1
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`)
`
`Investigation No. 337-TA-424
`
`On consideration of R.E. Tobacco Sales, 1nc.k motion for a protective order, Brown &
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`Williamson's opposition thereto, and the record herein, it is this
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`of January 2000:
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`ORDERED that R.E. Tobacco Sales, Inc.'s motion is denied, and it is
`FURTHER ORDERED that R.E. Tobacco Sales, Inc. shall permit the inspection and
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`photographing of its ofice and warehouse on 3 1 January 2000, or on such other date as the parties
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`may agree.
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`Debra Morriss
`Administrative Law Judge
`
`
`
`Certain Cigarettes and Packaging
`Inv. No. 337-TA-424
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 28, 2000, I caused the attached BROWN & WILLIAMSON
`TOB.4CCO CORP.'S OPPOSITION TO R.E. TOBACCO SALES, INC.'S MOTION FOR A
`PROTECTIVE ORDER TO PREVENT INSPECTION OF PREMISES to be served as indicated to the
`parties designated below:
`
`Donna R. Koehnke, Secretary
`U. S. International Trade Commission
`500 E Street, S.W., Suite 112
`Washington, D.C. 20436
`
`Hon. !Debra Morriss
`Administrative Law Judge
`U. S. International Trade Commission
`500 E Street, S.W., Suite 317F
`Washlington, D.C. 20436
`
`Smith Brittingham IV, Esq.
`Office of Unfair Import Investigations
`U. S. International Trade Commission
`500 E Street, S.W., Room 401-M
`Washington, D.C. 20436
`
`Moises T. Grayson, Esq.
`Ian J. Kukoff, Esq.
`BLAXBERG & GRAYSON, P.A.
`Suite '730 - Ingraham Building
`25 S.E. 2nd Avenue
`Miam,t, FL 33131
`
`Barry M. Boren, Esq.
`Dadeland Towers
`9200 South Dadeland Boulevard
`Suite 412
`Miami, FL 33156
`
`Original plus six copies - By Hand Delivery
`
`Two copies - By Hand Delivery
`
`One copy - By Hand Delivery
`
`One copy - By Overnight Delivery
`
`One copy - By Overnight Delivery
`
`
`
`Certain Cigarettes and Packaging
`Inv. No. 337-TA-424
`
`Matthew L. Fairshter, Esq.
`Joel It. Bennett, Esq.
`BENNETT & FAIRSHTER
`225 S. Lake Avenue, Ninth Floor
`Pasadena, CA 91 101
`
`One copy - By Overnight Delivery
`
`Barbara A. Murphy, Esq.
`One copy - By Overnight Delivery
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`1200 Seventeenth St. N.W., gfh Floor
`Washington, D.C. 20036
`
`January 28, 2000
`
`2
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