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The NAM filed an amicus brief seeking to enjoin the federal government from publicly disclosing sensitive risk assessment and hazard modeling documents associated with Sunoco's pipeline operations. Sunoco initiated this lawsuit in the U.S. District Court for D.C. after the Pipeline and Hazardous Materials Safety Administration—which had historically protected this type of information from public disclosure under the Freedom of Information Act (FOIA) given its sensitive nature—reversed course and sought to disclose the information publicly within a matter of days. Our amicus brief argues that risk assessment and hazard modeling documents provided to the federal government to help protect against a major physical or cyber-attack are critical to maintaining pipeline operations and should be protected from disclosure under FOIA for both security and commercial reasons. Manufacturers in the oil & gas industry and beyond customarily protect the type of information at issue in this case from public disclosure due to significant threats to disruption of operations and public safety from bad actors seeking to exploit potential vulnerabilities. The government's decision to disregard the applicable FOIA exemptions presents grave concerns regarding the treatment of similar information that manufacturers routinely provide to regulators.

The NAM filed an amicus brief in the U.S. District Court for the District of Columbia supporting employers in their efforts to retain highly skilled workers. Spouses of H-1B skilled workers who have been approved for permanent residence can apply for and receive H-4 visas allowing them to work in the United States. If this rule were invalidated, manufacturers would lose access to leading talent, harming their ability to remain competitive in the global economy. A federal district court ruled that the plaintiffs lacked standing to bring the case, but the D.C. Circuit reversed and remanded the case for further proceedings. Now, following cross-motions for summary judgment, the NAM filed an amicus brief urging the court to preserve H-4 employment authorization. The NAM’s brief details the devastating impact that eliminating H-4s would have on affected employees and their families, employers, and the health of the overall economy.

Happily, on March 28, 2023, the district court upheld the rule allowing H-4 visa-holders to apply for employment authorization.

In October 2020, the NAM intervened in this case brought by Institutional Shareholder Services (ISS) against the Securities and Exchange Commission (SEC) to defend a rule that increases transparency and accountability for so-called “proxy advisory firms” against ISS’s challenge that the SEC lacked authority to issue the rule. In July 2020, after years of advocacy from the NAM, the SEC finalized a new rule increasing transparency and accountability of so-called proxy advisory firms—unregulated third parties with outsized influence on shareholder votes and manufacturers’ corporate governance policies. The final rule—issued under Section 14(a) of the Securities and Exchange Act of 1934—required proxy advisory firms to disclose their conflicts of interest, provide voting recommendations to companies after they are finalized, and notify investors of company perspectives on their recommendations.

On summary judgment, ISS argued that the SEC lacked authority under Section 14(a) to issue the proxy advisory firm rule. Section 14(a) makes it unlawful to “solicit” proxies “in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors[.]” ISS maintained that proxy firms’ provision of proxy voting advice is not a “solicitation” of proxies within the meaning of Section 14(a) that authorizes the SEC to regulate proxy advisory firms under the provision. The SEC and NAM disagreed. The NAM explained that a proxy advisory firm “solicits a proxy” because it both “‘endeavors to obtain’ a vote in line with its [voting] recommendation” and “‘invite[s] and encourage[s]’ an investor to hire ISS for its proxy voting advice.” The NAM further explained that the history of the Exchange Act supports its interpretation because (1) Congress had not disapproved of the SEC’s longstanding interpretation of proxy voting advice as “solicitation”; and (2) Congress has used the term “solicit any proxy” in recent legislation amending the Exchange Act.

Unfortunately, on February 23, 2024, the district court sided with ISS and held that “the ordinary meaning of ‘solicit’ at the time of Section 14(a)’s enactment does not reach proxy voting advice for a fee”; therefore, “[b]y definition the terms ‘solicit’ and ‘solicitation’ in the proxy rules to include proxy voting advice for a fee, . . . the SEC acted contrary to law and in excess of statute authority.

Citing the COVID-19 pandemic as a pretext for emergency rulemaking, the Department of Labor issued a rule in mid-October 2020 creating a series of new restrictions on the H-1B visa program that would have slammed the door on talented workers in hard to fill specialty and technical roles. (The Department of Homeland Security issued a companion rule not challenged in this case). The rule was especially unsound because it was directly issued as a final rule, with no notice or opportunity to provide comment on its harmful impacts despite cost estimates that put the rule among the most expensive federal rules ever issued. The NAM joined with the U.S. Chamber of Commerce and TechNet to file an amicus brief in support of the lawsuit, arguing that the rule is unlawful and hugely detrimental to American competitiveness.

The NAM moved to intervene in a lawsuit that seeks to end a program that provides hundreds of thousands of skilled workers for manufacturers and other American businesses. To address a shortfall of certain skilled workers in the American economy, the federal government in 1992 established the "optional practical training" (OPT) program. That program and a subsequent extension for STEM students (STEM OPT) allows foreign-born students to continue their educational training by working in the United States for up to three years after completing college or a graduate degree. Without the OPT program and STEM OPT, manufacturers would be unable to fill critical positions requiring specialized training in engineering, math, technology and the sciences. An anti-immigration activist group sought to invalidate the entire OPT program by suing the U.S. Department of Homeland Security. To help ensure the continued availability of hundreds of thousands of highly skilled workers for manufacturers, the NAM asked a federal court to allow our intervention in the case as a defendant. Becoming a defendant allowed the NAM to present the best legal arguments possible in support of the OPT program and STEM OPT. The court granted NAM's motion for intervention in 2019, and on November 30, 2020, the court granted NAM’s request for summary judgment, effectively terminating the activists’ lawsuit.

The NAM filed an amicus brief urging the U.S. District Court for the District of Columbia to delay the deadline for filing the Revised EEO-1 Report “Component 2” pay data. Because Component 2 significantly expands the data fields employers must submit, employers need sufficient time to revise their systems, implement new procedures and train employees in order to collect the data. Component 2 creates an administrative burden for employers who will now be forced to bear the costs of complying with the requirements. The NAM’s brief argued that the EEOC has previously recognized that changes to EEO-1 require implementation time; 2) employers reasonably relied on EEOC’s direction and did not take the steps need to comply with collection of the data; 3) consistent with these reasons employers should receive sufficient time to prepare for the revised EEO-1; and 4) the data should not be required until EEOC can preserve confidentiality. The court declined to delay the filing deadline.

The NAM filed an amicus brief supporting President Trump’s Executive Order 13771, which begin the process of making government regulation more efficient by requiring, with certain exceptions, government agencies to repeal two outdated or ineffective regulations for every new regulation. The executive order focused on low-yield regulations that fail to provide sufficient societal benefits when compared to their compliance costs. Federal regulations impose 297,696 separate restrictions on manufacturers’ operations and cost an average of $19,564 per employee. The NAM’s brief emphasized the importance of making the regulatory system efficient and described the way the order was an extension of a bipartisan history of executive orders with the same goals. The brief also highlighted important recent successes in similar regulatory budgeting efforts in the United Kingdom and Canada. For example, in its first two years, the UK’s “one-in, one-out” policy in 2011 reduced annual net costs to business by nearly £1 billion without causing significant economic, environmental or public health impacts. The court dismissed the challenge on standing grounds, which is a win for regulatory reform.

The NAM filed an amicus brief supporting the continuance of Dakota Access Pipeline (DAPL) operations. The litigation arose from alleged deficiencies in National Environmental Policy Act review, assessment and analysis following a procedural error in the U.S. Army Corps’ Environmental Assessment. This issue is important to manufacturing as halting DAPL would significantly impede access to crude oil on which manufacturers heavily rely. The NAM’s brief argued that halting operations due to a procedural error is not an appropriate remedy but would instead produce serious and irreparable harm including harm to energy businesses, states benefiting from DAPL operations and individuals employed through DAPL. The court agreed with the NAM’s arguments that the pipeline should be permitted to continue operations while the U.S. Army Corps of Engineers conducted further NEPA review.

On June 5, 2013, without any finding of discrimination or advance notice to Case New Holland (CNH), the EEOC delivered an email blast to the business email inboxes of 1,169 CNH employees. The blast email advised the employees, well over a hundred of whom were managers, that the EEOC was investigating CNH for age discrimination. It then directed the employees to provide to the government, through a secure Internet site, evidence of discrimination and personal contact information. The EEOC actually admitted, in later correspondence, that its blast email was trolling for class action plaintiffs to sue CNH.

CNH asked for a declaratory judgment finding that the EEOC had overreached its authority under its governing statutes and the United States Constitution. There were five counts in the complaint. The First Count asserted an Administrative Procedure Act (APA) violation because no authorizing rule or regulation permitted the blast email. The Second Count asserted that the blast email was neither “necessary [n]or appropriate,” and thus exceeded the permissible scope of the EEOC’s authority under Section 7(a) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(a). The Third Count alleged that the EEOC failed to comply with its own Compliance Manual’s provisions on the conduct of investigations, again in violation of the APA. The Fourth Count asserted an unreasonable invasion of the CNH computer network and of the privacy interests of CNH employees, in violation of the Fourth Amendment to the Constitution. Lastly, the Fifth Count asserted that the EEOC trespassed on the CNH computer network and, by so doing, effected a taking without compensation in violation of the Fifth Amendment to the Constitution.

The EEOC moved to dismiss the complaint, and on Nov 14, 2013, the NAM filed an amicus brief opposing the motion. Our brief argued that the extensive CNH employee time and property used to complete the EEOC evaluations and interviews constitutes a violation of the Fifth Amendment’s takings clause.

The EEOC took the highly unusual step of filing a reply brief to the NAM amicus brief calling it "unprecedented" and asked for an extension to file their full reply. The substance of the full EEOC reply demonstrates the significance of the NAM argument. On 1/6/14, we responded (see brief below).

On 9/24/14, the judge dismissed the case for lack of jurisdiction based on standing. CNH amended its complaint and filed an appeal, and the judge reinstated the case. CNH voluntarily dismissed the case on 10/28/2015.

Continuing the fight against forced speech and aggressive overreach by federal agencies, the NAM and the Virginia Manufacturers Association (VMA) filed a lawsuit 12/18/13 to stop the Office of Federal Contract Compliance Programs (OFCCP) from enforcing its “posting requirement” rule. The OFCCP, an agency within the Department of Labor, enforces rules and regulations imposed on federal contractors.

The OFCCP rule adversely affects thousands of federal contractors and subcontractors by forcing them to promote unionization of their workforces or risk being debarred from federal contracts. Our lawsuit asked the court to strike down the rule on the grounds that poster is compelled speech and violates the First Amendment.

A similar rule put forth by the National Labor Relations Board (NLRB) was struck down earlier in 2013 by a federal appeals court due to a successful lawsuit from the NAM. In that case, the court ruled that similar posters amount to compelled speech and extend beyond the intent of the National Labor Relations Act. Federal contractors deserve the same protection from this aggressive overreach.

The NAM and VMA filed a joint Motion for Summary Judgment in D.C. District Court on 5/1/14. This case arises from a facial challenge brought by Plaintiffs against Defendant’s Final Rule, at 29 CFR Part 471, 75 F.R. 28368 implementing Executive Order 13496 which forces all federal contractors to post a “Notification of Employee Rights Under Federal Labor Laws”, prominently and conspicuously in places of employment. NAM and VMA argue that the Rule must be vacated as it constitutes compelled speech in violation of the First Amendment of the United States Constitution, has been promulgated in excess of Defendants’ statutory authority, is arbitrary and capricious, and is preempted by the NLRA.

On May 7, 2015, the D.C. District Court denied the NAM’s motion for summary judgment and entered judgment for the DOL. The DOL rule requiring contractor posting of NLRA rights statement was upheld by the Court and does not violate the constitutional rights of covered employers.

An environmental group in California spearheaded litigation and administrative proceedings in all fifty states, as well as this lawsuit in federal court against the EPA and the Departments of the Interior, Defense, Agriculture, Energy and Commerce, to try to force government to impose further greenhouse gas emissions reduction policies under a "public trust" theory. The federal suit was brought by WildEarth Guardians, Kids vs. Global Warming and five individuals who sought to preempt the federal legislative and regulatory processes by getting a federal judge to compel massive societal changes that they believe are necessary to address climate change.

On Oct. 31, 2011, the NAM moved to intervene in this litigation, because the law suit, if successful, would have a dramatic effect on manufacturing processes and investments, increasing production and transportation costs, decreasing global competitiveness and driving jobs and businesses abroad. The litigation, which seeks a minimum 6% reduction in carbon dioxide emissions every year, would be devastating to the entire U.S. economy.

Along with our motion to intervene, we asked the court to dismiss the law suit for various reasons: (1) the case presents political questions that the courts are not able to resolve, (2) the plaintiffs lack standing because their injuries are too speculative and not likely to be reduced by the relief sought, (3) the public trust doctrine does not exist under federal law and the claims have been displaced by federal regulation in this area, and (4) the doctrine does not apply to the atmosphere or require a duty to regulate greenhouse gas emissions.

A hearing was held before Judge Edward Chen on November 30, 2011 to determine whether to grant the government's request that the case be transferred from a federal court in northern California to one in the District of Columbia. The NAM supported this request. On December 6, the court agreed, ordering the case transferred. A hearing was held on April 2, and the judge granted our motion to intervene. A hearing was held on May 11 to consider our motion to dismiss the case.

On May 31, Judge Wilkins granted our motion to dismiss. He ruled that public trust claims are grounded in state, not federal, law, and the allegations in this suit represent "a significant departure" from the public trust doctrine as it has been traditionally applied to water-related activities. Federal courts may exercise jurisdiction in a case if it raises a federal question, but the public trust doctrine is a matter of state law. The judge also ruled that even if the doctrine had been a federal common law claim at one time, it has been displaced by federal regulation under the Clean Air Act. Citing the American Electric Power case from the Supreme Court, he found that federal judges may not set limits on greenhouse gas emissions "in the face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action arbitrary, capricious, . . . or otherwise not in accordance with the law."

The court closed with a suggestion that the parties need not "stop talking to each other once this Order hits the docket. All of the parties seem to agree that protecting and preserving the environment is a more than laudable goal, and the Court urges everyone involved to seek (and perhaps even seize) as much common ground as courage, goodwill and wisdom might allow to be discovered."

That is certainly a laudable suggestion, as the plaintiffs have filed administrative petitions in 39 states and the District of Columbia to seek similar relief at the state level, and 31 of those have already been denied. Suits were brought in 10 other states, and were dismissed in 9 of them, many with appeals or amended complaints in the works.

However, the plaintiffs filed a motion for reconsideration of the court's ruling, and the NAM filed an opposition on 7/16/12. The motion was denied on 5/22/13.

This lawsuit challenged the NLRB's ambush election rule, issued in December, 2011, which effectively shortened the amount of time in which union certification elections take place and could allow votes to occur in as little as 20 days. The Coalition for a Democratic Workplace, of which the NAM is a leading member, immediately filed a legal challenge to this rule in federal court in Washington, D.C.

The final rule, effective April 30, 2012, is harmful to employers. Specifically, it alters what types of pre-election hearings can be held (such as who is even eligible to vote in the election) and what types of appeals can be filed prior to an election. If certain matters can be discussed only after an election is held, these matters will often become moot, leaving the employer with no voice to be heard prior to the election. The rule also appears to shorten the time between a petition for certification being filed and the election being held. If most pre-election matters will be deferred until after the election, the election itself could take place very quickly.

The complaint sought to enjoin the NLRB from enforcing the final rule. It charged that the rule violates the statutory requirement that the NLRB must hold pre-election evidentiary hearings if there are questions concerning whether representation exists. The rule also eliminates a party's right to seek Board review of a regional director's pre-election rulings until after an election, thus depriving employees of the fullest freedom in exercising their rights as required by the law. Other claims raised fundamental concerns that the Board's action impinges on the freedom of speech by employers, that it did not provide an adequate opportunity for comments, and violated the Regulatory Flexibility Act.

On Feb. 3, 2012, the CDW filed a motion for summary judgment, arguing that employees need at least 30 days to decide how to vote in NLRB elections. Even former Senator and President John F. Kennedy emphasized the need for this time to "safeguard against rushing employees into an election where they are unfamiliar with the issues."

On April 27, the Chamber and CDW filed a motion for a temporary stay of NLRB action pending judicial review to allow the court time to decide the issues in the case before the rule goes into effect. The next day, the judge denied the motion, saying that the plaintiffs will not suffer irreparable injury because the court will issue its opinion on the merits by May 15, "which date will precede any potential election under the new rule."

True to his word, Judge Boasberg ruled on May 14, denying the NLRB's motion for summary judgment and granting the plaintiffs'. He ruled that the vote to adopt the rule did not have a quorum. The vote was 2-0, with the third member of the NRLB not voting, and the judge found that the vote of two members in an online voting situation is "simply not enough." The third member "need not necessarily have voted, but he had to at least show up." More is required than just being a member of the Board in order to establish a 3-person quorum. He must "participate" in the decision, although he need not vote to be counted in determining a quorum. In the context of electronic voting, he had to affirmatively express an intent to abstain, or acknowledge receipt of the notification about the vote, but that did not happen. It was as if he had failed to attend the vote at all.

The ruling leaves open the possibility that members of the NLRB could simply not participate in votes in order to prevent the Board from having a quorum. This could slow down the rulemaking and adjudicatory process at the agency. The court did not reach any of the other procedural and substantive challenges to the ambush election rule, and those issues may have to be litigated later, if the Board reissues the rule with a proper quorum.

On June 11, 2012, the NLRB filed a motion to alter or amend the judgment, arguing that Member Hayes was in fact present in the Board's electronic voting room. This motion was denied on July 27.

On February 6, 2008, the NAM filed suit to declare unconstitutional a provision of the Lobbying Disclosure Act that requires the disclosure of members of the association that actively participate in lobbying activities. The provision, Section 207 of the Honest Leadership and Open Government Act of 2007 (HLOGA), requires registered lobbying organizations like the NAM to disclose the names of any corporate members that contribute more than $5,000 to the lobbying of the organization and that “actively participate[] in the planning, supervision, or control of such lobbying activities.” The provision was nominally targeted at “stealth coalitions,” whatever they are, but missed that mark and hit legitimate, long-standing and well-known organizations like the NAM that have corporate members. Coalitions with individual members are exempted from the provision.

The suit was filed against the U.S. Attorney for the District of Columbia, who is primarily responsible for enforcement, as well as the Secretary of the Senate and the Clerk of the House of Representatives, who have the responsibility to refer deficient filings to the U.S. Attorney for prosecution. Criminal and civil penalties are available.

The NAM believes the disclosure provision is constitutionally deficient because it is not properly tailored to further a compelling state interest. It is both over-inclusive, in that it requires reporting by organizations that are by their nature not “stealth coalitions,” and under-inclusive, in that it exempts coalitions that do not hire their own lobbyists or that are funded by individual rather than corporate contributions. It is also extremely vague, and requires the expenditure of considerable resources to try to determine what it means and how to monitor the myriad member company activities that might be considered “active participation” in lobbying activities. Lobbying organizations may comply simply by listing all their members, including ones that do not meet the $5,000 and active-participation tests, resulting in information to the public that is not responsive to the purported need to scrutinize “stealth coalitions.”

The first lobbying report affected by the new law was due on April 21, 2008. The NAM sought an injunction against enforcement of Section 207, but on April 11, Judge Kollar-Kotelly ruled against us, purportedly applying a strict scrutiny analysis. She found that the government has an "important" and "vital national interest" in knowing who is paying for lobbying and how much, and to avoid "the appearance of corruption." She used the fact that the law has not changed much since 1995 as evidence that it is constitutional, as well as the fact that it took Congress so long to come up with the latest changes, because this "thoughtful and careful effort . . . Deserves respect" (citing her own opinion in a previous case). Other NAM arguments were discussed and rejected.

The NAM appealed this ruling to the U.S. Court of Appeals for the D.C. Circuit. During the week of April 14, the NAM sought a temporary stay of enforcement of Section 207 pending this appeal, but that request was denied, first by Judge Kollar-Kotelly and then by a D.C. Circuit motions panel and Chief Justice Roberts. We then asked for and received an order from the D.C. Circuit to expedite its review of our challenge, as new and different reports are required at the end of each calendar quarter.

On April 30, the NAM filed an amended lobbying disclosure report disclosing the names of organizations that we think may be reportable under Section 207.

See link below for subsequent history of this case in the D.C. Circuit.

Constitutionality of Bipartisan Campaign Reform Act of 2002.

The NAM and 3 other organizations sued the Federal Election Commission and the Federal Communications Commission for a permanent injunction against enforcing the new Bipartisan Campaign Reform Act of 2002 (BCRA). The BCRA seeks to ban core political speech by corporations for a period that may range from 30 days to more than a full year before a federal election. The complaint charged that, "Merely using common ways of referring to pending legislation, such as the 'Shays-Meehan' . . . or 'Kennedy-Kassebaum' bills, may expose corporations and labor organizations to criminal penalties." In addition, a fall-back provision is unconstitutional because it prohibits, at all times, companies from financing any broadcast communication that "promotes or supports . . . or attacks or opposes a candidate" and "also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." The NAM suit charged that this language violates core First Amendment rights and due process.

The suit also challenged a new provision that expands and obscures the existing ban on corporate speech that is "coordinated" with a candidate, campaign or political party. The provision repealed an existing regulatory definition of "coordination" and instructs the FEC to issue a new regulation that conforms with vague and intrusive standards of "coordination." Another provision expanded company reporting requirements to speech that does not expressly advocate the election or defeat of a candidate, and even required reporting of prospective communications irrespective of whether the communications are actually made.

On 5/2/03, the district court issued a splintered, 1600-page decision striking down the limitations of soft money contributions from corporations, unions and individuals, limiting issue ads if they appear to urge the election or defeat of a candidate, and deciding that the definition of coordination of speech (one of the NAM's issues) was upheld. An appeal to the Supreme Court was filed. On May 19, the district court issued a stay of its ruling, reinstating the BCRA.

The NAM filed suit on 3/19/01 against the Secretary of Labor, challenging the new occupational safety and health recordkeeping rule issued by the Clinton Administration on January 19, 2001. While there are significant improvements under the new rule, which was slated to go into effect in 2002, the NAM was concerned that the rule requires manufacturers to report injuries and illnesses that are not work-related, including pre-existing conditions caused by non-work-related activities. The rule also includes in the definition of injuries and illnesses symptoms that are wholly subjective. Other objections include the requirement that standard threshold shifts of 10 dB(A) in hearing are recordable as an illness. On 4/25/01, the NAM requested of Secretary Chao that the litigation and the effective date of the regulation be stayed until January 1, 2003 to allow sufficient time for appropriate review by the new leadership at the Department of Labor. On 7/3/01, the Department published a notice in the Federal Register stating that the rule will go into effect as scheduled on January 1, 2002, except for provisions related to hearing loss and musculoskeletal disorders (see below). The Department filed a motion to dismiss, claiming that the NAM does not have the right to challenge the regulation before an enforcement action is initiated, and we vigorously opposed that motion.

This motion was mooted when the NAM and OSHA agreed on 11/16/01 to a settlement (below). The settlement agreement provides that: