bronislaw had to be in washington and so i am presiding in his place he is here by television and we'll hear a first argued case by full versus philip one thing before we have here are some high school students from the truman high school jr c program we are delighted to have you here welcome and try to enjoy the argument that go to the heart of the integrity of the judicial system and in terence to mandatory injunctions remedial injunctions that are issued by federal courts in their judgments these are issues that are not normally present an issue preclusion cases these are issues that have not arisen in the other cases involving attempts to use that the o g judgment findings preclude civilly and the issues are the reasons for this appeal on november twenty fourth two thousand and seventeen two weeks after philip morris presented evidence at trial in this matter denying that it manipulated the nicotine in cigarettes to nying intentionally rendered cigarettes addictive philip morris published statements in the major media across the country in accordance with judge kessler is mandatory injunction in her aug seventeenth judgment of a seventeenth two thousand and six judgment and those statements included corrective statements about a number of fraudulent acts by philip morris including nicotine manipulation but the relevant portion of the statement is a federal court has ordered philip morris usa to make this statement about designing cigarettes to enhance the delivery of nicotine philip morris usa intentionally designed cigarettes to make them more addictive that corrective statement and the other corrective statements that philip morris was required to publish in the newspaper was ordered by judge kessler as a corrective statement under rico nicotine manipulation order she made a finding that the defendants were likely to respond to violate rico i'm sorry to violate the provisions of rico with respect to future fraudulent statements unless these corrective statements were ordered and she mandated the correct the statement as an injunction in the august seventeenth two thousand and six order judgment and she did something else in the judgment paragraph three of the judgment issued a complimentary injunction permanent injunction that prohibited philip morris and the other tobacco companies from making any material false statements yes i understand your argument that this was the same fact and i understand your argument that it was necessary not for recall result but for of a sentence in effect yes of the order which is what you're saying now and that there was a full opportunity and it was that the other requirements for collateral estoppel but did for a court be too low consider what is in its discretion the question of fairness because if a court be low did not consider something which was in its discretion even assuming that we agree with you on the first point isn't to be appropriate thing to  remand that to the district court for a first consideration of that that is exactly the plaintiff's position here the it's clear that the district court did not undertake a fairness inquiry the could district court said he didn't reach that the district court said he was relying principally on what he viewed as the lack of the says city he said all of the findings are like there is there spice in the soup you can take one away and it doesn't affect the judgment  not not as to the curative correct and this was argued i'm sorry i beg your pardon judge a curative instruction so i don't i don't understand we will hear from that from the other side on that so i don't understand that argument but but what how hard do you answer the fact that this is kind of a broad industry base kind of thing and it's not specific as to the product that you are specifically focusing what judge kessler did was she broke it down company by company she made findings that there was a conspiracy among all of a red companies and i'm going to ask the presiding to give you more time thank you i thank you very much she made a finding she made findings about the conduct of all of the cigarette companies as a group and then she made specific factual findings as to each each one of the cigarette companies including in particular philip morris and she made specific findings with respect to philip morris not just that it manipulated the nicotine in the cigarettes that it did so intentionally to addict smokers that it concealed that from smokers she then went further and talked about what philip morris did in the sixty's the seventy's in the eighty's and she made specific subsidiary findings that related that tomorrow's in marbella lights we've cited those references in our  are too many to to read to you but they are they are specific findings as to philip morris they are specific findings as to moral burros and equally important at the trial the evidence they presented from richard jup was we don't to we never manipulated any cigarettes right were you given any kind of opportunity to rebut testimony to testify as well nicotine occurs naturally  tobacco that's from his testimony right the transcript here and then denies he specifically deny that philip morris had altered or or had any control over the next eighteen levels which is directly contrary right fine we what we what what you said actually was we don't set the nicotine level we don't determine an addict of those we've never studied an addictive dose and nicotine this is his exact words is merely a nuance that follows the tar levels in cigarettes those are that's testimony that was completely contrary to judge kessler's findings and i need to point out it's completely pivoted by paragraph three of the injunction she issued if stupid going out in the street on behalf of philip morris and said philip morris doesn't manipulate nicotine that would have been an absolute violation of paragraph three of her injunction and when the court of appeal said it did say that there's no first amendment right under nor pending to they raised the first women claim we haven't or pennington right to make these statements the court of appeal said no nor pennington doesn't apply this is up there's a finding of on eighty four witnesses and nine months of trial and ten thousand exhibits but we had competing experts but they had this they had a witness who took this position what do you make of the fact that the  are judgement here ok it doesn't first of all if you elect not to appeal something that you can appeal that seem to be a decision on the merits but equally important there were direct appeals attacking attacking the nicotine manipulation finding and the court of appeal said it is supported and they cited to page three hundred nine of the decision and the the finding about designing cigarettes that judge kessler made there was an appeal there was a challenge made on first amendment grounds the court of appeals rejected that on the corrective statements there was a there was a an appeal made that the prohibition in rule in paragraph three was too broad the court of appeals rejected that as saying it's warranted and you know exactly what it is and it's the plaintiff's position and that's when i started my argument by referencing it hints to remedial judge injunctions it's the plaintiff's position that this is different than the normal in issue preclusion case in the normal issue preclusion case you've got a finding in one case is it fair is it if it meets the requirements is it fair to apply it that's not what you have here you have a factual finding that is then in forced by you or me to remedial injunctive orders designed to prevent the plaint the defendant from ever saying this again that's that's that's why this isn't that's why this isn't simply a question of well was there an inconsistent there in two thousand and six after a nine month trial with all of the procedural and evidentiary protections that we talk about in the briefing after all these appeals there's a ruling saying you may not make these false statements anymore and you have to make corrective statements and they just file a tit i think we have your argument you've retained three minutes and you very much i'm going to give opposing counsel an extra three minutes as very different from what appellant argued in his brief and most of what he just said is waived because these are not as issues are arguments that he raised on appeal but i just want to take a step back here plaintiff is asking for precludes of a fact to be your point about houla stoppel cases goes to the question of fairness that is to be extra question and that question the district court should apply rules stoppel webroot use fear in one case and her feelings in this case which run in one direction that there is one case than binding the world like an inch and their feelings which run in view over direction cost of doing this in individual cases but that hasn't been decided by the district court what we have before us today is the issue of whether what was decided in the d o j  met the requirements for collateral stoppable that is was it the same issue was it actually decided you know those are the questions before it was over feeling of fairness is very important but it wasn't decided but it is record that we submit that it was your honor but let me take a step back and just respond you think that district court decided couple things your honor first of all when i referred to the twenty courts i was referring to the twenty courts that have analyzed whether it is proper to give a stop all effects to these findings and have concluded that on it was that the findings were not necessary to the judgment that they were not identical and that they were not unfair i wasn't referring to the inconsistent judge maybe you can get to that in a minute  or their district courts largely or not binding but the fact that twenty courts have looked at this one thousand of them have come out the way that we're arguing is i think instructive second of all what the diff the district court you're right didn't need to reach the entire fairness in o'clock ability of these inconsistent judgment it's because it found for the defendant on partly on ground that the planet had not met his burden of showing identical ality that the plaintiff had not met his burden of showing that any particular with regard to mr gall of his clients claim we would not submit that they are your honor and just told me they were no you asked whether those factual issues are relevant if i can take a step back yonder and talk about the context just as philip morris yes those two facts will get to the particular brand in the second are relevant to a products liability claim if they are tied to the product itself in connecticut they are relevant but that is not the but i'm arguing that for multiple reasons the fact that they are relevant does not make it proper to have applied collateral estoppel if i may respond to just calibrate his question on what the district court found and then if i may return to your question about identical it in a city ok in terms of  district court and i would point the court to page six o five of the appendix because it's important to know exactly what the district court analyzed what it found what it didn't find so plaintiff raised this issue a couple of weeks before trial after ten years of litigation in this case and he submitted a motion and he said you should give collateral estoppel a fact to these ten what he called six x i'm sorry not sec not ten six ultimate issues for each ultimate issue he identified several dozen of the many thousands of findings from the d o j case he did not attempt to parse through those findings and show that any of them were identical to the issues here he did not attempt to parse through them and show that any of them were necessary to the judgment here more importantly and the court below held a hearing and found several things he said you haven't shown that they're identical and then he said more importantly you haven't shown that any of these findings were necessary to the judgment and he applied the right standard were they were necessary to a finding of guilty of rico and i think it's clear that they're not necessary to a finding of guilty of rico because there were a hundred other reasons why the cigarette companies were guilty of rico but why weren't they necessary to the sentence what i'm calling the sentence and i'm using that word intentionally because in other situations where something is necessary  your ok several reasons your honor first of all it's not a sentence it's a remedy in a civil action and that's important second of all the test for collateral estoppel is not necessary to the remedy it's necessary to the judgment the supreme court said that in bobby vs buys this court had set it in the west chester versus hyde case courts over and over again have said that it has been necessary to the judgment of liability and not to the remedy plaintiff has not we ar necessary to that if it is necessary to the remedy that's not enough the plaintiff has not cited a single case that would allow this court to depart from the rule on bobby versus buys that it needs to be necessary to the judgment why i'm trying to explain just said it wasn't necessary to the judge manrico because there are so many other findings and that is dispositive and here's why it has to be necessary to the judgment so that the defendant has both the right the ability the power and also the incentive to appeal on that issue specifically so what the courts have explained is that if you were to go up on appeal on just that issue and the court of appeal were to find that it was erroneous below and not reversed because it's harmless  no court has ever held that it is not on hand no court has held that use a vet but no court has held view opposite so it is an open question before us and i'm asking the question of why isn't did equally open to somebody in your situation to appeal the remedy and lord knows we get appeals of remedy all the time of people saying yes i'm guilty or yes so this has to be necessary to the judgment and what the courts say is that it has to be outcome determinative in the case on the judgment of liability so for the court to say well it we acknowledge that it wasn't necessary to the judgment of rico liability here but it was necessary to one of the many corrective statements that the court ordered and so therefore it's ok to apply collateral estoppel would be taking the doctrine of offensive non neutral collateral estoppel which the supreme court has recognized as extremely dangerous and example of something somebody is found guilty and i know that this is civil it was ok but somebody is found guilty and some facts are found which question perhaps under the federal sentencing guidelines if you have to find a particular fact but that's not where we are we are in a situation where we had a civil judge sitting in a civil case and exercising what she characterized as the broad discretion on the content of those findings and then when the mars took it up on appeal council you're not answering my question you're saying that vista is different from my hypothetical and that may be that's a different question but you were saying vet judgement didn't mean who remedy and i am trying to focus on that because as i say i'm not interested in that will result in the case i'm interested situation is another issue there would not and for two reasons one is that the district court especially a civil court like we had in this case exercises an enormous amount of discretion over a remedy one side has found liability so is  different thing to attach collateral estoppel to a remedy made or had to make with regard to identifying the remedy that was appropriate in this case yes the district court said that she was exercising broad discretion over the corrective statements the district the circuit when i looked at this on appeal both two things found waiver and so didn't let the defendant's appeal from the question of whether any particular corrective statements that were ordered by the district court were supported by particular findings of fact and second said we're not finding we're not holding that any particular corrective honor it is a factor that actually legally precludes the application of collateral estoppel here because there are so many problems here the d c circuits decision in this case that was a bench trial and the the district court made findings of fact now that alone does not preclude collateral a stop all under par understand that but it is a factor that it was a bench trial then you take that bench trial they go up on appeal from the judgment of liability which under every decision that we read on the offensive estoppel it's that judgment of liability that's the only thing that can give rise to preclusion so they take that they come back to the district court there they lose their remanded they go back to the district court to litigate the remedy so now we're several steps away from even the bench trial from anything that was necessary to that judgment she says i'm exercising broad discretion on the content of these corrective statements the case goes up again on appeal to the d c circuit the plant the defendants say look there wasn't enough facts there were not founding is a fact that you can correspond to each of these corrective statements and the d c circuit says well you should have raised that on the last appeal waiver now we're not arguing that that was wrong that's that case that's water under the bridge but all of that plays into exactly why under the respond to it in our brief but then i didn't make this argument as opening brief but i believe that there is case law specifically holding that where there is a waiver that operates as a waiver in that case it doesn't operate as a waiver of that bar that that permits collateral  on the remedy would there have been an opportunity for the appellate court to review whether the findings of fact were clearly erroneous yes and so no not on that not on that they what they would have been looking at is the precise question they are asking me about here which is whether the corrective statements were supported by particular findings of fact in the record so there had to be a connection between factual findings in the corrective statement while the district court held that that there did not have to be such a connection she said she was had there not been a waiver on appeal what would the issue you know because they just your court just said well there were all the d c circuit said well there were a lot of findings here you know we're sure that corrective statements the remedies themselves are subject to appellate review and you've indicated at least seems to be vindicated the part of that review is premised upon the fact that you're asked me some factual support of the record for the remedy to have been given and what i'm trying to get at is is there and the waiver short circuited that process yes your honor waiver would there have been some review by the court as the last of the c of those factual fine yes i believe so why wouldn't what's the magic in that because there's more discretion because you are several steps removed from what we have here your but you told me it's a finding of fact that then i didn't say it was a finding of ash let me finish please yes your honor is a finding of fact that informs the exercise of the discretion but it's a finding of fact nonetheless facts don't become a in a little bit more there a there a there be the b and c in form a conclusion and an exercise of discretion as to what a remedy should be but they are review in the context of the exercise of discretion are they not they are are but but but a couple things about that this court made clear in its other decisions applying offensive mutual collateral estoppel cases like mad a sec a says like needle and the court made clear that where you have a different legal context unless you're talking about a very simple fact like no no you're in and now you are moving to something else please let me ask you this if the district court had found the philip morris had manipulated levels of nicotine was aware that nicotine was addictive and was aware that by manipulating the levels of nicotine they could they could encourage additional use of their product with those findings of fact have supported the corrective measure that the district court  employed in d c if the district court in d c had made those findings and issued that it i'm not saying that it did i just asked if the if it had done that's not the question the question is whether it supported the  advocacy and the quality of your brief i'm not trying to trick you i'm trying to understand something i understand you're in a apologize all right thank you very much so it may if it had made those findings of fact and then made exercised its discretion issued to cure the border the findings of fact would have been evaluated and whether they supported that exercise of discretion yes your honor if those findings of fact were wrong that would be one of the ways of understanding whether the  did not it would you are may act on to that ok it wouldn't show that they were necessary it might have shown whether something is supported is a separate question from whether it was necessary to the remedy and given the level of protection that has to surround the use of offensive non neutral collateral estoppel our position just to be clear is that it has been necessary to the judgment not the remedy but if you are going to hold that it has to be necessary to the remedy there needs to be a showing that the particular facts that the plaintiff wants to use here had to be necessary to the remedy and that is a different question from what you are asking me may i just respond to a couple of other points i know i'm way over philip morris five hundred dollars that would be an exercise of discretion as to the rim it be applied five hundred dollars instead of a statement across the board that this is what happened but both of those whether it went one way or beyond or wouldn't they depend on that same finding of fact not necessarily honor it when you when you at that's a separate question i believe the way you are asking me now is not whether something is necessary to the remedy but why the exercise of discretion is so important in distinguishing the remedy from the judgment i am asking about whether that would be necessary to any of several decisions as to which the court had discretion but that the finding of fact would support one or another if that remedy but let's say she also found this let's say that she found that philip morris did everything else in her findings but she also made an additional finding that philip morris did not manipulate nicotine and marlboros her marber alights from the period from  hundred four it's a big problem it is an insurmountable problem she could have found that and issued the exact same correct and that is why in madison the court said it's so important to look at the context because when you take something out of one context and pitch it into another you are very you are raising major fairness concerns two other points just very briefly i know the court is really running out of patience with me and i'm way over my time  that is an issue that as vova district court made some suggestions it may no clear find some of it again if it is a matter of fairness concerned isn't the appropriate thing assuming that we decide against you in view of or to remain for the district court to make a decision it is discretion and fairness which then depending on how it goes would presumably be appealed but that's a different case but no your honor for three reasons one is that the district court did say that there are probably equitable considerations here that would make it inappropriate to apply a collateral sample if it had to reach that question as you know the court did not need to reach that because it will do in our favor and identical in assessing but the court also made another finding that's very important and this is that page a six zero five at the appendix the court said that applying a stop it would confuse the jury the court said we'd be left with something that i think the jury would find very confusing and the concerns about jury confusion are something now now we agree with the plaintiff that your view the legal questions here don't know but the concerns about jury confusion expressed by a district court judge who had presided over ten years of pretrial litigation in this case and who presided over the trial is something to which the court should defer the third the court found that the plaintiff had not met his burden the court said you haven't even tried to convince me you haven't even tried to show that the issues here are identical that they are necessary and that applying collateral estoppel would be fair that is another finding to which this court should give deference and finally what that the only basis for offensive non mutual collateral estoppel is efficiency and the court said you know it would be impossible for me at that he said it would be literally impossible to go back and cherry pick which of these findings that you want to treat as as as a stopped are necessary to the judgment day and even if i could do that it would result in jury confusion so all of those are determinations to which this been to bar philip morris from defending itself in this separate litigation on the basis of an injunction ordered by a district court plaintiffs all over the country have tried to defend the have tried to preclude the tobacco companies from defending themselves by saying that defending themselves in unrelated litigation would violate that injunction no court has accepted that it would be a massive due process violation to say that these companies that they that they are enjoined from defending themselves and unrelated cases  says asking you your honor no court has ever found that defendants can't offer evidence that is inconsistent with the injunction the very very broad injunction ordered by touch casler that's not an issue on this appeal the plaintiffs have been planted has not made that argument on this appeal it's waived but even if it weren't waived that would be such a massive extension of the doctrine of collateral estoppel and it would so clearly violate the first amendment and due process that no court in the country has ever held that depend that it to back a defendant cannot introduce evidence that is inconsistent with the d o j findings and plaintiffs like to do that all the time and no court has permitted that thank you  about the law you just heard in response to judge brown is this question the statement made that plaintiffs have been making this argument about violating the injunction and courts the courts the twenty courts have rejected it this is not an argument that's been made and it hasn't been made because as near as i can tell we're the first plaintiff to point out why the corrective statements rendered the rendered findings at issue necessary if you look at the other cases the other cases they try to what they try to argue claim preclusion on liability they try to argue apply hundreds of findings broadly that's not what we said we said and the argument we didn't make it below is simply inaccurate we said below these were these findings that we're trying to apply were the basis for the corrective statements and because they were the basis for the correct statements they were necessary and you and you have to win and therefore it's in forcible testified yes where the injunction i was not aware of paragraph three i was only aware of five so i didn't argue paragraph gets bushwhacked by this at the second circuit at ten o'clock in the morning i mean seriously well the only way i can see exactly how we do business here i i understand that it is a and i'm i don't i don't want to dissemble with the court i it's it's it's it's it comes it arises out of the corrective statement paragraph but what i'm saying but i'm saying i'm saying it was not it was not argued below and it's being presented to you is let me ask you this if your opponent says that the findings of fact that relate to be the remedies are in the context of an exercise of discretion and what i take for argument to mean is that whereas like in a products liability case you have to prove defect or design eccentric subject matter so they're not like an element to the to the exercise of the discretion the results and the what your answer that i think that there is no legal support for her position there is a remedy ordered it's a remedy by the way that implicates not only rico's remedial authority which can only be forward looking it also implicates first amendment protections and that is that is subject to strict scrutiny by an appellate court i know that in a subsequent opinion this the d c court said it was waived but it wasn't in it was in fact argued they raised the issue that the corrective statements could not be enforced because there was no support for them the d c court specifically addressed that argument in its decision if it paid me you know i take you to say that the corrective judgement corrected borders that the district court in the d o j case made in its discretion who would not have been made had there not been a finding  things yes and they couldn't have been made under rico and they couldn't have been made under the first amendment and there are several things the fact that right to this so what if one were missing but the others were there well if the if the if the are there were five different corrective statements that were that were ultimately ordered the discretion that counsel is referring to is the discretion in the wording of the statements and they built the wording of the statements took ten years to l was not limited to marlboro so marber alights he was put on the stand to say we don't do any nicotine manipulation we haven't researched it we couldn't have done it with more boring moral lights because we never even studied nicotine we never said nick we've never said nicotine levels for any cigarettes but equally important and if you look at this these are the findings the support of findings or page ten of our reply brief aged ten page ten we address this argument by the by the defendant and show the findings about more boroughs in the early to mid seventy's when janette by folk was smoking them that informed judge kessler's findings about nicotine manipulation you'll have to speak to the microphone i beg your pardon the court of appeals actually at page eleven forty four and this is in the first appeal the two thousand and nine appeal this is what they said about the corrective statements the district court found that for over fifty years defendants violated rico by making false and fraudulent statements to consumers about their products the court also found defendants reasonably likely to commit similar violations in the future and  ed corrective statements were necessary to counteract these anticipated violations thus contrary to defendant's arguments the publication of corrective statements addressing defendants false assertions is adequately tailored to preventing defendants from deceiving consumers that's a direct response to the argument that was made on appeal and this argued this is the claim here that there's no collateral estoppel if it's only goes to a remedy that imposes a mandatory injunction that would step that would mean the park lane the park lane hosiery case was an s e c case involving an injunction i mean there's these there's the idea that you can't do that there's no collateral est injunctions is just is i think it's unsupported the the court also said in response  in response to the claim on appeal gollop i'm going to ask you to bring views to a close homeless for questions i'm happy to close thank you and i thank you very much thank you both very well argued by both sides a difficult interesting case and we