Case 6:20-cv-00176-JCB Document 33 Filed 05/08/20 Page 1 of 4 PageID #: 1215
`
`No. 6:20-cv-00176
`
`R.J. Reynolds Tobacco Co. et al.,
`Plaintiffs,
`v.
`United States Food and Drug Administration et al.,
`Defendants.
`
`Before BARKER, District Judge
`
`
`ORDER
`
`On May 6, 2020, the parties filed a joint motion (Doc. 30)
`for entry of an order postponing a rule’s effective date and
`governing proceedings. That motion is granted.
`
`Plaintiffs are cigarette manufacturers challenging the Food
`and Drug Administration’s recent rule on cigarette labeling.
`See 85 Fed. Reg. 15638 (Mar. 18, 2020) (“Tobacco Products; Re-
`quired Warnings for Cigarette Packages and Advertise-
`ments”). The effective date of the rule is June 18, 2021.
`
`Defendants join plaintiffs in asking the court to delay the
`rule’s effective date by 120 days. They invoke the court’s au-
`thority to postpone a rule’s effective date “on such conditions
`as may be required and to the extent necessary to prevent ir-
`reparable injury” pending judicial review. 5 U.S.C. § 705. In
`conceding that the agreed relief is appropriate, the govern-
`ment thus agrees that plaintiffs would suffer irreparable in-
`jury absent a 120-day postponement of the rule’s effective
`date, although the government reserves the right to contest
`irreparable injury beyond that at issue with the 120-day post-
`ponement.
`
`The court agrees with the parties’ shared conclusion. The
`representations in the parties’ motion establish irreparable in-
`jury absent postponement of the rule’s effective date.
`
`
`
`No. 6:20-cv-00176
`
`R.J. Reynolds Tobacco Co. et al.,
`Plaintiffs,
`v.
`United States Food and Drug Administration et al.,
`Defendants.
`
`Before BARKER, District Judge
`
`
`ORDER
`
`On May 6, 2020, the parties filed a joint motion (Doc. 30)
`for entry of an order postponing a rule’s effective date and
`governing proceedings. That motion is granted.
`
`Plaintiffs are cigarette manufacturers challenging the Food
`and Drug Administration’s recent rule on cigarette labeling.
`See 85 Fed. Reg. 15638 (Mar. 18, 2020) (“Tobacco Products; Re-
`quired Warnings for Cigarette Packages and Advertise-
`ments”). The effective date of the rule is June 18, 2021.
`
`Defendants join plaintiffs in asking the court to delay the
`rule’s effective date by 120 days. They invoke the court’s au-
`thority to postpone a rule’s effective date “on such conditions
`as may be required and to the extent necessary to prevent ir-
`reparable injury” pending judicial review. 5 U.S.C. § 705. In
`conceding that the agreed relief is appropriate, the govern-
`ment thus agrees that plaintiffs would suffer irreparable in-
`jury absent a 120-day postponement of the rule’s effective
`date, although the government reserves the right to contest
`irreparable injury beyond that at issue with the 120-day post-
`ponement.
`
`The court agrees with the parties’ shared conclusion. The
`representations in the parties’ motion establish irreparable in-
`jury absent postponement of the rule’s effective date.
`
`
`
`Case 6:20-cv-00176-JCB Document 33 Filed 05/08/20 Page 2 of 4 PageID #: 1216
`
`Plaintiffs would face imminent compliance costs, which ap-
`pear likely to be heightened while disruptions from the
`COVID-19 pandemic exist, and those costs would not be re-
`imbursed by the government if plaintiffs prevail on the mer-
`its. Although the statute does not refer to a likelihood of suc-
`cess on the merits or other equitable factors, the court has
`weighed all factors bearing on a § 705 stay and finds that they
`favor the requested 120-day postponement.
`
`The court therefore orders that the effective date of the
`challenged rule is postponed to October 16, 2021. Any obliga-
`tion to comply with a deadline tied to the effective date of the
`rule is similarly postponed, and those obligations and dead-
`lines are now tied to the postponed effective date. As defend-
`ants agree would be appropriate given this ruling, the FDA is
`ordered to post notice of this postponement on its public-fac-
`ing website within fourteen days.
`
`The court also enters the following orders governing case
`management:
`
`• The requirement of initial disclosures under Rule
`26(a)(1) is excused.
`
`• Disclosures under Rule 26(a)(2) and (a)(3) are excused
`absent further order of the court.
`
`• Discovery is stayed until further order of the court.
`
`• The requirement of a Rule 26(f) conference and joint
`report is excused absent further order of the court.
`
`This order is a scheduling order under Rule 16(b) but does not
`include a date by which discovery must be completed because
`discovery is stayed until further order.
`
`The parties’ proposal that their forthcoming motions for
`summary judgment need not include a statement of undis-
`puted facts is also adopted. The parties are exempted from
`compliance with that provision of Local Rule CV-56(a) and
`must comply with all other requirements of the rule.
`
`
`
`
`- 2 -
`
`
`
`Case 6:20-cv-00176-JCB Document 33 Filed 05/08/20 Page 3 of 4 PageID #: 1217
`
`The following schedule will govern the proceedings ab-
`sent further order of the court:
`
`Deadline
`
`Event
`
`May 15, 2020
`
`May 29, 2020
`
`July 2, 2020
`
`July 2, 2020
`
`July 2, 2020
`
`July 17, 2020
`
`Plaintiffs’ combined motions for summary
`judgment and preliminary injunction. The
`combined motion for all plaintiffs is limited
`to 65 pages, exclusive of exhibits and at-
`tachments.
`
`Deadline for any amicus briefs in support
`of plaintiffs. Any amicus brief is limited to
`25 pages, exclusive of exhibits and attach-
`ments.
`
`Defendants’ combined (1) response in op-
`position to plaintiffs’ motions and (2) cross-
`motion for summary judgment. The com-
`bined document for all defendants is lim-
`ited to 75 pages, exclusive of exhibits and
`attachments.
`
`Deadline for defendants’ answer or other
`responsive pleading.
`
`Deadline for defendants to serve the ad-
`ministrative record on plaintiffs.
`
`Deadline for any amicus briefs in support
`of defendants. Any amicus brief shall be
`limited to 25 pages, exclusive of exhibits
`and attachments.
`
`August 14, 2020 Plaintiffs’ combined (1) reply in support of
`their motions and (2) response in opposi-
`tion to defendants’ cross-motion. The com-
`bined document is limited to 40 pages, ex-
`clusive of exhibits and attachments.
`
`September 11,
`2020
`
`Defendants’ combined reply in support of
`their cross-motion. The combined reply is
`
`
`- 3 -
`
`
`
`Case 6:20-cv-00176-JCB Document 33 Filed 05/08/20 Page 4 of 4 PageID #: 1218
`
`September 25,
`2020
`
`limited to 30 pages, exclusive of exhibits
`and attachments.
`
`Deadline to file a joint appendix containing
`those portions of the administrative record
`that are cited or otherwise relied upon in
`the motion briefing.
`
`As set by the
`court
`
`Oral argument
`
`
`
`
`
`So ordered by the court on May 8, 2020.
`
`
`
`
`
`
`
`J. CAMPBELL BARKER
`United States District Judge
`
`
`- 4 -
`
`
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