UPDATE: Tobacco Cos. Singe FDA Rule in Federal Court

Image via WikipediaUnited States District Court for the District of Columbia Judge Richard J. Leon this week granted a preliminary injunction to tobacco companies challenging Food & Drug Administration regulations requiring cigarette packaging to carry graphic depictions of the health consequences of smoking.

Last August, R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands, Inc., Liggett Group, LLC and Santa Fe Natural Tobacco Co. sued the FDA, which in June 2011, promulgated regulations, set to take effect in September 2012, based on H.R. 1256, the Family Smoking Prevention and Tobacco Control Act of 2009, that mandated cigarette packaging and related advertising include grisly images, such as a cadaver on an autopsy table and blackened lungs. (See "TUOL" post 8/17/11.)

In siding with the plaintiffs' request for a preliminary injunction in the case, R.J. Reynolds Tobacco Co. et al. v. U.S. Food & Drug Administration et al. (Case No. 1:11-cv-01482), Judge Leon wrote in his 29-page opinion: "[T]he plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech, and that they will suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA's rule."

The tobacco companies argue the FDA-imposed warnings exceed the limits of factual and neutral information and thereby, violate their First Amendment right of free speech. As reported by Ad Week, Judge Leon's Order prevents H.R. 1256 from taking effect until 15 months after the current lawsuit is resolved, which derails the September 2012, implementation.

UPDATE: Federal Judge Okays Comcast NBC Purchase, Retains Oversight

Image via WikipediaIn U.S. v. Comcast (Case No. 11-cv-00106), U.S. District Court for the District of Columbia Judge Richard J. Leon this week approved the cable giant's acquisition of NBC Universal, Bloomberg News reports, but the federal court will retain oversight to monitor arbitration actions by video distributors.

In giving the thumbs up to the purchase that the FCC okayed by a 4-1 vote last January (see "TUOL" post 1/18/11), Judge Leon, cognizant of online video distributors' fears that the merger would freeze them out of NBC content and concerned the proposed arbitration process would squelch appeals, plans to convene annual hearings for at least two years at which Justice Department attorneys will present data on the number of arbitration requests by video distributors and whether the requests were approved or refused. Judge Leon also wants information on how many arbitration denials wind up before the FCC. Neutral arbitrators would oversee any such distributor dispute.

The Court's final judgment is set to expire in seven years.

Correspondent Out-'Foxed' in Discrimination Lawsuit

Image via WikipediaIn EEOC v. Fox News Network (Case No. 10-1660(RJL)), U.S. District Court for the District of Columbia Judge Richard J. Leon last week granted summary judgment for the defendant against sex and age discrimination claims brought by its Washington, D.C.-based homeland and national security correspondent Catherine Herridge.

Herridge, Fox's highest paid Washington bureau correspondent, sought relief, including punitive damages, alleging she was financially retaliated against during contract negotiations with the news organization, according to McClatchy Co. blog Suits & Sentences. Fox apparently offered Herridge a three-year contract renewal that paid $495,000 in Year 1, followed by annual increases to $530,000 and $570,000, which she countered, initially with a request that started at $621,000 in the first year and grew to $821,000 by year 3 and then subsequently changed to $900,000 in the first year and a request she be assigned anchor duties.

In his 17-page Memorandum of Opinion, Judge Leon ruled Herridge failed to prove financial injury, and branded her salary demand "astronomical."  Judge Leon wrote: "Herridge's allegations of retaliation, and her eagerness to blame Fox News for delays in salary negotiations are belied by persistent and unfeasible demands detailed in the record."

Apparently, the Court found Fox News made a liberal contract offer to Herridge that would ensure her personal security, if not national security.

Cigarette Cos. Hack at FDA Regs with 1st Amendment Lawsuit

Image via WikipediaFive tobacco companies have joined forces to file suit in the U.S. District Court for the District of Columbia to challenge the constitutionality of Food & Drug Administration regulations set to take effect in September 2012.

In R.J. Reynolds Tobacco Co. et al. v. U.S. Food & Drug Administration et al. (Case No. 1:11-cv-01482), Reynolds, Lorillard Inc., Santa Fe Natural Tobacco Co., Liggett Group LLC and Commonwealth Brands, Inc., claim their First Amendment rights would be violated by the Family Smoking Prevention and Tobacco Control Act of 2009 [H.R. 1256], which would require them to display graphic images of the health dangers of smoking in advertising and on their packaging.

First Amendment attorney Floyd Abrams, who represents the plaintiffs, told LegalTimes the FDA regs constitute anti-smoking advocacy by the government, rather than merely requiring disclosure of uncontroversial facts. Abrams told LegalTimes his clients' First Amendment rights would be infringed on if they were mandated to include information on their products urging the public not to purchase them.

Under H.R. 1256, the FDA includes nine warnings, including images of diseased lungs, a body on an autopsy table, and a quit-smoking hotline telephone number. Judge Richard J. Leon will hear the case.

UPDATE: Court Denies Breitbart Motion to Toss Sherrod Defamation Suit

Image by Getty Images via @daylifeU.S. District Court Judge for the District of Columbia Richard J. Leon last week issued orders denying motions to dismiss or alternatively, relocate Shirley Sherrod's defamation suit against Andrew Breitbart and Larry O'Connor, Legal Times reported.

Sherrod, the one-time U.S. Department of Agriculture director for rural development, in her complaint, Sherrod v. Breitbart et al. (Case No. 00015711), alleges she was defamed by conservative blogmeister Brietbart, his associate O'Connor and another whom she accused of "deceptively edit[ing]" a video clip of a speech she delivered in March 2010, that made her appear racist and discriminating against white farmers. (See "TUOL" post 4/20/11).

Though he did not issue a written opinion, Judge Leon denied the defendants' motion to relocate the suit to the U.S. District Court for the Central District of California where they reside and work. Judge Leon also refused to dismiss the defamation suit based on the defendants' argument that it violated their First Amendment right to free speech. The defendants unsuccessfully invoked the anti-SLAPP law recently enacted by the District of Columbia on March 31[D.C. Law 18-0351] that allows for dismissal of a lawsuit and a stay of discovery in cases in which parties contend they are being sued over protected speech.

The parties argued the motions before Judge Leon on July 19, according to the Legal Times article.

NSA Deflects FOIA Challenge About Possible Google Ties

Image via WikipediaWhether the National Security Agency has forged a relationship with Internet search engine colossus Google will remain under wraps for now as the NSA successfully rebuffed a document request by public interest watchdog group, the Electronic Privacy Information Center ("EPIC") under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

As reported by Suits & Sentences, a blog published by The McClatchy Co. media conglomerate, U.S. District Court for the District of Columbia Judge Richard J. Leon denied EPIC's FOIA document request, relying on Exemption 3 of the sunshine law. The restriction holds that material does not have to be produced that is otherwise protected from disclosure by another statute; in this case, one that guards "the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof," the Suits & Sentences post noted.

The NSA ain't talkin' about whether it has worked with Google.  EPIC initially filed its FOIA request after stories emerged concerning a possible connection between the NSA and Google regarding a cyber attack by hackers in China.

The case is Electronic Privacy Information Center v. National Security Agency (Case No. 1:2010-cv-01533).