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NJOY Brief Ct.app.

NJOY Brief Ct.app.

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Published by: julie_woessner on Jun 23, 2010
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09/29/2010

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ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 23, 2010No. 10-5032
____________________________________IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA____________________________________
SMOKING EVERYWHERE, INC.,SOTTERA, INC., d/b/a NJOY,
 Intervenor-Plaintiff-Appellee,
v.U.S. FOOD AND DRUG ADMINISTRATION,
et al.
,
 Defendants-Appellants.
 
____________________________________
On Appeal from the United States District Court for the District of ColumbiaCivil Action No. 09-cv-0771 (RJL)
____________________________________BRIEF OF APPELLEE SOTTERA, INC. d/b/a NJOY™____________________________________
Gregory G. GarreRichard P. BressJohn R. MantheiPhilip J. PerryJessica E. PhillipsLATHAM & WATKINS LLP555 Eleventh Street, NWSuite 1000Washington, DC 20004Telephone: (202) 637-2200Facsimile: (202) 637-2201E-mail: gregory.garre@lw.com
  Attorneys of Record for Intervenor-Plaintiff Appellee NJOY 
Case: 10-5032 Document: 1251463 Filed: 06/23/2010 Page: 1
 
i
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASESA. Parties and Amici
Intervenor-Plaintiff is Sottera, Inc., d/b/a NJOY (“NJOY”). The originalPlaintiff was Smoking Everywhere, Inc. (“SE”). After the district court ruling onappeal, SE voluntarily dismissed its complaint against Defendants and haswithdrawn from this appeal. Defendants are the United States Food and DrugAdministration (“FDA”), FDA Commissioner Margaret Hamburg, the UnitedStates Department of Health and Human Services (“HHS”), and Secretary of HHSKathleen Sebelius. Amicus briefs were filed in district court by Action onSmoking and Health and by Alliance of Electronic Smokers. The WashingtonLegal Foundation has filed a notice of intent to file an amicus brief on appeal. TheAmerican Academy of Pediatrics, the American Cancer Society Cancer ActionNetwork, the American Heart Association, the American Legacy Foundation, theAmerican Lung Association, the American Medical Association, the Campaign forTobacco-Free Kids, and Public Citizen have moved for leave to file an amicusbrief on appeal.Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure andCircuit Rule 26.1, counsel for NJOY hereby certifies that NJOY is a privately-heldNevada corporation headquartered in Scottsdale, Arizona, engaged in theelectronic cigarette industry. NJOY does not have outstanding shares or debt
Case: 10-5032 Document: 1251463 Filed: 06/23/2010 Page: 2
 
 
iisecurities in the hands of the public or have a parent, subsidiary, or affiliate thathas issued shares or debt securities to the public.
B. Rulings Under Review
The preliminary injunction under review (JA 543-544) was issued onJanuary 14, 2010, by the Hon. Richard J. Leon, United States District Court for theDistrict of Columbia, in Civ. No. 09-771.
C. Related Cases
The preliminary injunction under review has been stayed by this Court. Weare not aware of any related cases.
Case: 10-5032 Document: 1251463 Filed: 06/23/2010 Page: 3

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