SE, NJoy vs FDA -- Discussion

[Vocalek]

I come bearing gifts this evening . . .

Smoke Anywhere (not to be confused with Smoking Everywhere) has filed a motion to intervene in the njoy v. FDA case currently pending before Judge Leon.

I've attached the motion, the complaint, and the Rule 7.1 certificate. I didn't bother to attach the motions pro hac vice (attorneys not admitted to practice in this particular court asking for permission to do so for this particular case).

This isn't an automatic in . . . Judge Leon will need to rule on the motion.

Game on.

My computer thanks each and every one of you.

Any idea why Sottera (njoy) is opposing the motion to intervene?

 

[JustJulie]

Any idea why Sottera (njoy) is opposing the motion to intervene?

Total speculation on my part, but my guess is that NJOY doesn't really see any advantage to allowing Smoke Anywhere (SA) to intervene. The legal analysis has been developed, and so the next phase of the litigation (assuming no settlement) is an actual trial involving NJOY showing why its product is a tobacco product, which is specific to NJOY's marketing. I don't see where it would benefit NJOY to have SA involved at that point. If there's no advantage, then why should NJOY agree?

And, in fact, there may be some disadvantages. Anytime you have more than one plaintiff, you run the risk of another plaintiff slowing things down by, for example, requesting continuances. Moreover, SA is a competitor of NJOY, so there's little incentive for NJOY to agree to anything that might give SA an advantage in the marketplace.

And, of course, there's the "pissiness" factor. NJOY and Smoking Everywhere spent a lot of time and money in shaping the legal framework that will ultimately be applied in deciding this case. After all the heavy lifting is done, SA now wants to join the lawsuit. It's kind of like standing in line for days waiting for concert tickets, only to have someone try to jump in line beside you.

Truth be told, SA has taken its time. Allowing SA to intervene shouldn't slow things down initially--after all, FDA hasn't even answered NJOY's complaint. On the other hand, this case has been ongoing for nearly 2 years, and SA is only now seeking to intervene (despite the fact that it had product seized as early as July 2009).

As to how Judge Leon will rule on this motion, I have no idea.

 

[DataPhreak]

More likely they think they have this case wrapped up, and that SA doesn't have any new material to add to the case. Probably better that SA wait, and move to intervene with NJoy in the TW case:

Counsel for Smoke Anywhere has consulted with counsel for NJOY, who
opposes this motion, stating that it believes that NJOY should intervene in an unrelated
case, Totally Wicked-E.Liquid (USA), Inc. v. U.S. Food and Drug Administration et. al.,
Case No. 09-CV-00771-RJL, pending in this District of Colombia.

Even among competitors, there is a sense of comraderie in the e-cig community. That being said, Njoy, SA, and SE aren't the most reputable companies out there. Still they are among the most successful and most public. We'll see what happens, i guess.

Edit: Likely because neither party wants SA in this case, Leon won't let them. Probably a good thing. This motion doesn't look like it was written by a seasoned lawyer by any stretch of the imagination. (Read the introduction.) Maybe it was written by SA. Still, the lawyer should have done a better job editing it if that were the case.

 

[JustMeAgain]

And, of course, there's the "pissiness" factor.

Never, ever, discount he pissiness factor.

 

[JustJulie]

After the flurry of activity yesterday . . . nothing today.

 

[jj2]

Y'all are giving my computer a big head. It's now agitating for a new screen saver.

Hey, I say give it a new one---and thanks Julie.

 

[JerryRM]

Thank you Julie's computer......oh and you too, Julie.

 

[Bill Godshall]

There are several other reasons why NJOY wouldn't want SA to intervene, including:
- NJOY's cost of litigating the case will increase if the court allows SA to intervene,
- NJOY's lawyers may have to collaborate with SA lawyers in drafting briefs and perhaps in making oral arguments,
- if Judge Leon allows SA to intervene, many other e-cigarette companies are likely to also petition to intervene.

Don't know why Totally Wicked chose to file its own lawsuit against the FDA instead of trying to intervene in the NJOY case.

 

[Bill Godshall]

Back in 1998 when several of us filed a Petition to Intervene in PA AG Mike Fisher's lawsuit against the five largest cigarette companies (with the Philadelphia Court of Common Pleas, where the original case was filed), all five cigarette companies and the State AG opposed our Petition.

Not only that, the State AG Mike Fisher sent us letters claiming that if we didn't withdraw our petition, that he would sue us for several million dollars for filing frivolous litigation against the state.

When we (i.e. via our pro bono lawyer) presented oral arguments to the court in support of our petition, we were opposed by about three dozen attorneys from the State AG's office and from all five cigarettes.

Our petition was denied by the judge, but it helped convince then Governor Tom Ridge, AG Fisher and the PA General Assembly to appropriate 12% of the state's tobacco settlement for smoking prevention and cessation programs.

 

[DC2]

I'm trying to think of even one reason why NJoy would want Smoking Anywhere to intervene.

 

[JustJulie]

Sorry . . . with the weather getting nicer, I'm getting later in my docket check.

Nothing new on the docket.

Hope everyone was able to get out and enjoy some nice weather today.

 

[JerryRM]

Nice weather ??? Julie, it's cold here today and we are going to get some snow tonight and tomorrow !!!

Thanks, for the update, Julie and where's your new avatar ???

 

[JustJulie]

Nice weather ??? Julie, it's cold here today and we are going to get some snow tonight and tomorrow !!!

Thanks, for the update, Julie and where's your new avatar ???

Weather was beautiful here in St. Louis. I was actually out in short sleeves today.

As for the avatar, I'm saving it for my grand re-entry into the vets forum . . . I think you're the only one who's going to recognize me.

 

[Bovinia]

Nice weather ??? Julie, it's cold here today and we are going to get some snow tonight and tomorrow !!!

Thanks, for the update, Julie and where's your new avatar ???

Us too Jerry, about 2" on the ground atm

Thank you Julie and glad you had some beautiful weather!

 

[Vocalek]

We have snow here, too. Only it isn't frozen.

 

[rothenbj]

Yeah, Elaine, we had rain here that was frozen.

 

[JustJulie]

Nothing new on the docket. I'm curious what's going to happen with Smoke Anywhere's petition to intervene . . . and the next status report for TW v. FDA (due April 6th).

I'm afraid I was a bit premature in getting excited about the nice weather . . . it's now in the 40s, and I'm trying to decide whether I'm stubborn enough to keep the heat off.

 

[JerryRM]

Thank you, strange person, with the new avatar. LOL
I still prefer the first choice.

 

[JustJulie]

Thank you, strange person, with the new avatar. LOL
I still prefer the first choice.

Well, of course you prefer the first one, you old dog.

Feels strange to have a new avatar . . . I've had the old one for more than 2 years. Time for a change. This won't be the one I keep, but it's fun for a day or two.

 

[MoonRose]

Nothing new on the docket. I'm curious what's going to happen with Smoke Anywhere's petition to intervene . . . and the next status report for TW v. FDA (due April 6th).

I'm afraid I was a bit premature in getting excited about the nice weather . . . it's now in the 40s, and I'm trying to decide whether I'm stubborn enough to keep the heat off.

LOL ... I finally gave up and turned the heat back on here around 2:00 this afternoon and they keep talking about the possibility of snow flurries here tonight too ... ick.