Law Center Search Results

On March 13, 2025, the NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse a 9th Circuit decision recognizing aiding and abetting liability under the Alien Tort Statute and Torture Victim Protection Act. In this case, the plaintiffs, practitioners of the Falun Gon religion, allege that Cisco’s technology enabled the Chinese government to commit human rights abuses against them in China and seek to hold Cisco liable for those abuses. The plaintiffs argue that Cisco aided and abetted or conspired with Chinese officials in the human rights abuses in violation of the ATS and TVPA. After the 9th Circuit reversed a trial court dismissal and allowed the claims to proceed, Cisco appealed.

We argue that allowing the 9th Circuit’s decision to stand will harm U.S. businesses’ competitive advantage by subjecting them to sprawling, resource-draining litigation for conduct they had no control over while their foreign competitors are not subject to such claims. Expanded ATS litigation would chill direct foreign investment by U.S. businesses in foreign markets, which enables sales to customers that U.S. manufacturers could not otherwise reach and generates revenues that can be re-invested domestically.

On February 10, 2025, the NAM filed an amicus brief urging the U.S. Supreme Court to address an important issue concerning federal court diversity jurisdiction. After the plaintiff brought this product liability suit in Texas state court, Hain removed the case to the Southern District of Texas asserting diversity jurisdiction as the basis for federal court jurisdiction. Hain maintained that its co-defendant (Whole Foods) should be dismissed from the case because the plaintiffs failed to state a claim against Whole Foods and only joined Whole Foods to prevent a federal court from hearing the case. The plaintiffs then amended their complaint against Whole Foods to defeat diversity and moved to remand the case to state court. The district court, however, held that the plaintiffs could not defeat federal diversity jurisdiction by adding new allegations to their complaint following removal, and that their amended claims still did not state a viable claim against Whole Foods. The district court also ruled for Hain on the merits. Following trial and judgment in Hain’s favor, the 5th Circuit reversed the district court’s decision on appeal and held that the case should be remanded to state court because the district court lacked jurisdiction to resolve the plaintiffs’ claims on the merits.

We argue that the 5th Circuit’s decision threatens to force businesses to expend significant resources litigating a case in federal court only to have a federal court of appeals reverse a favorable judgment and return the case to state court for a plaintiff to have a second bite at the apple. Manufacturers have a strong interest in preserving the finality of court judgments.

Happily, on April 28, 2025, the U.S. Supreme Court granted the petition for certiorari.

On March 24, 2025, the NAM filed an amicus brief urging the U.S. Supreme Court to address a circuit split concerning federal officer removal jurisdiction. This case is one of over 40 cases filed by a group of Louisiana parishes in state court seeking relief for alleged damage to Louisiana’s coastal environment. The plaintiffs assert that the defendants—energy manufacturers—violated state environmental laws by violating or failing to obtain a use permit for oil production activities on the Louisiana coast. Importantly, the defendants were acting, in part, pursuant to contracts with the government to refine crude oil into high-octane aviation gasoline to support the Allies in WWII. Because federal courts have jurisdiction over civil actions against “any person acting under [an] officer” of the United States “for or relating to any act under color of such office,” the defendants removed the case to federal court. Although a 5th Circuit panel agreed that the defendants acted under a federal officer, it split on whether the defendants’ production of crude oil “relat[ed] to” their government contracts. The majority held that a removing party must identify a “relevant federal directive” for a federal court to exercise federal officer removal jurisdiction and the defendants’ oil production lacked a sufficient connection with directives in their federal refinery contracts. The defendants petitioned the U.S. Supreme Court to review the case, and the Court granted this petition on June 16, 2025.

On September 21, 2025, the NAM filed a merits brief in support of the defendants' position, marking our fifth filing in the course of the litigation. In our brief, we argue that federal contractors have long relied on the protection of the federal officer removal statute when transacting with the government, and that a “relevant federal directive” requirement unduly narrows the text of the statute, which broadly applies to all claims “relating to” work under a federal officer. Without federal officer removal, the NAM argues, federal contractors would be hesitant to take on work that is nationally important but locally unpopular.

On January 29, 2025, the NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse a troubling 8th Circuit decision allowing foreign plaintiffs to bring claims in U.S. courts based on alleged injuries that occurred abroad. When U.S. companies invest in foreign industrial or commercial activities, they reasonably expect that litigation involving environmental harms—or similar mass tort claims focused on overseas operations and overseas injuries—will occur in the courts of the foreign jurisdiction at issue, absent an agreement stating otherwise or some other fact-specific reason why U.S. courts would be the logical, efficient, and expected forum. In this case, however, the 8th Circuit blessed an end-run around such expectations and created a playbook for mass-tort plaintiffs alleging foreign harms to proceed in the United States. The case arose after Peruvian citizens sued the defendants in Missouri state court asserting negligence claims stemming from defendants’ mining operations in Peru. The defendants moved to dismiss the case on the ground that it was improperly brought in a U.S. court, but the trial court denied the defendants’ motion and the 8th Circuit affirmed on appeal.

We explain in our brief that if the 8th Circuit’s decision stands, it threatens to invite a wave of foreign torts into U.S. courts, seeking to impose state-law standards on the overseas operations of foreign entities with U.S. parent companies. This approach would undermine the regulatory certainty U.S. manufacturers need to invest in overseas operations and weaken the supply chains that are critical to manufacturers’ ability thrive.

Unfortunately, on March 3, 2025, the U.S. Supreme Court denied the petition for certiorari.

On February 18, 2022, the NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse a 9th Circuit decision which sanctions a patchwork system of local regulation of healthcare and retirement benefits in square conflict with ERISA’s expansive preemption provision. This case, ERISA Industry Committee (ERIC) v. City of Seattle, involves a challenge to a Seattle ordinance requiring certain employers to make monthly healthcare expenditures to employees at Seattle-specific thresholds. The 9th Circuit rejected the challenge even though Congress intended for federal law—the Employee Retirement Income Security Act of 1974 (ERISA)—to provide a single uniform national scheme for the administration of healthcare and retirement plans without interference from states or municipalities. Indeed, the 1st and 4th Circuits have held that similar laws are preempted under well-established ERISA preemption principles.

The NAM filed an amicus brief in support of Supreme Court review explaining that ERISA preemption plays a critical role in making benefits possible for employees, and state and local rules that conflict with ERISA’s national uniformity must be struck down. As a practical matter, state and local mandates like this one harm workers, forcing employers to divert resources away from providing quality health coverage, and instead spend money to comply with a complex and mismatched patchwork of state and local rules. Already, localities across the country have begun to adopt similar ordinances with varied minimum benefit rates, timelines, definitions, and recordkeeping requirements—a completely unworkable, fragmented regulatory regime. Supreme Court intervention is sorely needed.

Unfortunately, on November 21, 2022, the Supreme Court denied cert.

The NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse a deeply flawed Eighth Circuit opinion applying an erroneous standard to the admissibility of expert testimony and usurping the gatekeeping role of the trial court. This multidistrict litigation involves allegations that 3M’s Bair Hugger patient warming device causes surgical site infections. After conducting a thoughtful and thorough review of plaintiffs’ general causation experts’ opinions—a faithful application of Fed. Rule of Evidence 702—the district court found that the opinions included large analytical gaps and were not generally accepted, and, accordingly, granted summary judgment in favor of 3M.

The Eighth Circuit reversed, applying a pre-Daubert standard. Under that standard, it is an abuse of discretion to exclude expert testimony unless the experts’ opinions are “so fundamentally unsupported” that they’re of no help to a jury. This obsolete standard essentially abrogates any discretion a district court has to exclude expert testimony.

The NAM filed an amicus brief urging the Court to grant 3M’s cert petition to resolve the widespread confusion in the courts on applying Rule 702 and safeguard the scientific underpinnings of the American health care system. The Eighth Circuit’s liberal admissibility standard threatens to adversely affect those who rely on the benefits of a medical device or drug—approximately 50,000 people per day. Such critical products, which are subject to substantial scientific analysis and review by the federal government, should not be deemed defective by juries applying an erroneous, overly permissive admissibility standard.

Unfortunately, on May 16, 2022, the Supreme Court denied cert.

On December 20, 2024, the NAM filed an amicus brief requesting the U.S. Supreme Court to address whether the admissibility of expert testimony should be considered at the class certification stage of a case. In this case,pPetitioners Nutramax Laboratories, Inc. and Nutramax Laboratories Veterinary Sciences, Inc. (collectively, “Nutramax”) research, develop, and sell supplements for household pets. Respondents—two individuals who purchased a Nurtamax product for their elderly dogs—brought a putative class action asserting damages claims against Nutramax. Respondents allege that various statements used on different versions of product labels were deceptive. The Central District of California granted Respondents’ motion for class certification and denied Nutramax’s motion to exclude Respondents’ expert testimony. The district court held that “[a]t the class certification state, admissibility must not be dispositive. Instead, an inquiry into the evidence’s ultimate admissibility should go to the weight that evidence is given.” In a split decision, the 9th Circuit affirmed. Nutramax filed a petition for certiorari with the U.S. Supreme Court.

We argued in our amicus brief that Federal Rule of Evidence 702 requires the admissibility of expert testimony to be considered at the class certification stage. The U.S. Supreme Court should grant certiorari because circuit courts are split on this issue. Moreover, this issue is important because class certification carries huge stakes: the multiplying effect of certification creates a risk of “devastating loss” that in turn leads to “in terrorem” class settlements even for “questionable claims.”

The NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse the lower courts’ dismissal of a challenge to a California ballot initiative that regulates the conduct of farmers, manufacturers, and producers nationwide. Proposition 12 bans the sale of imported pork and veal in California unless farmers and producers outside of California meet strict animal confinement standards set by California voters. The NAM argued in the brief that Proposition 12 violates the Commerce Clause by regulating conduct beyond California’s borders, impinging on other states’ sovereign authority to legislate within their own jurisdictions, and, substantially burdening out-of-state pork producers absent a sufficient and legitimate local interest.

On May 28, 2022, the Supreme Court granted the cert. petition. On June 17, the NAM filed an amicus brief asserting the same arguments included in its amicus brief filed in support of the U.S. Supreme Court granting review. This litigation is important to all manufacturers because if upheld, Proposition 12 may embolden other states to regulate out-of-state conduct, resulting in a complex web of inconsistent and competing extraterritorial regulations in the agriculture and food industries, and beyond.

Unfortunately, on May 11, 2023, the Supreme Court affirmed the 9th Circuit's decision affirming the lower court's dismissal of the case.

On September 21, 2023, the NAM filed an amicus brief in support of energy manufacturers’ petition seeking U.S. Supreme Court review of a lower court’s remand order in a case asserting state liability claims related to climate change. This is a case seeking to hold oil and gas companies liable for the impacts of climate change in Minnesota. The 8th Circuit upheld the federal district court’s decision to remand the case to state court for lack of subject matter jurisdiction. In our brief, we argue that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. This case has important implications for all manufacturers because of the growing trend among plaintiffs’ lawyers of using public nuisance and consumer deception claims to seek monetary damages from manufacturers for broad, societal issues that are ill-suited for consideration by a patchwork of state court determinations and should be addressed in the policy process.

Unfortunately, on January 8, 2024, the U.S. Supreme Court denied the energy manufacturers' petition.

On Wednesday, December 28, the NAM filed an amicus brief in support of energy manufacturers’ petition seeking U.S. Supreme Court review of the lower courts’ remand order in a case asserting “public nuisance” claims related to climate change. This case, Chevron Corporation, et al. v. San Mateo County, California, et al., is one of over two dozen public nuisance cases seeking to drive national energy policy on climate change. The 9th Circuit upheld the district court’s decision to remand the case to state court for lack of subject matter jurisdiction.

In our brief, the NAM argues that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. This case has important implications for all manufacturers because of the growing trend among plaintiffs’ lawyers of using public nuisance and consumer deception claims to seek monetary damages from manufacturers for broad, societal issues that are ill-suited for consideration by a patchwork of state court determinations and should be addressed in the policy process.

Unfortunately, on April 24, 2023, the Court denied the energy manufacturers' petition.

On January 5, 2023, the NAM filed an amicus brief in support of energy manufacturers’ petition seeking U.S. Supreme Court review of the lower courts’ remand order in a case asserting “public nuisance” claims related to climate change. This case is one of over two dozen public nuisance cases seeking to drive national energy policy on climate change. The 1st Circuit upheld the district court’s decision to remand the case to state court for lack of subject matter jurisdiction.

In our brief, the NAM argues that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. This case has important implications for all manufacturers because of the growing trend among plaintiffs’ lawyers of using public nuisance and consumer deception claims to seek monetary damages from manufacturers for broad, societal issues that are ill-suited for consideration by a patchwork of state court determinations and should be addressed in the policy process.

Unfortunately, on April 24, 2023, the Court denied the energy manufacturers' petition.

On January 5, 2023, the NAM filed an amicus brief in support of energy manufacturers’ petition seeking U.S. Supreme Court review of the lower courts’ remand order in a case asserting “public nuisance” claims related to climate change. This case is one of over two dozen public nuisance cases seeking to drive national energy policy on climate change. The 9th Circuit upheld the district court’s decision to remand the case to state court for lack of subject matter jurisdiction.

In our brief, the NAM argues that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. The NAM also argues that the petitioners plainly satisfy the requirements for federal officer removal by asserting they are “person[s]” in a “civil action” “for or relating to” acts performed while “acting under” federal officers and “raise[d] a colorable federal defense”—which are the only requirements Congress and the Court have established for when the statute provides a right of removal. This case has important implications for all manufacturers because of the growing trend among plaintiffs’ lawyers of using public nuisance and consumer deception claims to seek monetary damages from manufacturers for broad, societal issues that are ill-suited for consideration by a patchwork of state court determinations and should be addressed in the policy process.

Unfortunately, on April 24, 2023, the Court denied the energy manufacturers' petition.

On April 1, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to resolve a circuit split regarding the proper legal framework to apply for determining whether time spent putting on and taking off personal protective equipment (“donning and doffing” time) is compensable under the Fair Labor Standards Act. In this case, the plaintiff oil rig workers sued their employer under the FLSA for failure to compensate them for time spent donning and doffing generic PPE—fire retardant overalls, steal-toe boots, hard hats and safety glasses—at the beginning or end of their workday. The district court held that the time is not compensable, but the 3rd Circuit reversed on appeal. The 3rd Circuit rejected the test applied by the lower court—also adopted by the 2nd Circuit—and embraced a different, more plaintiff-friendly test to govern compensability determinations.

We argue that review is necessary to resolve the circuit split and provide certainty to manufacturers regarding their compensability determinations. If the U.S. Supreme Court does not agree to hear the case, manufacturers will be harmed by the 3rd Circuit’s test which not only calls standard compensation practices into question, but potentially expands the workday to include activities commonly completed at home and could spur a flood of litigation.

Unfortunately, on June 3, 2024, the Court denied the petition for certiorari.

On November 6, 2023, the NAM filed an amicus brief urging the U.S. Supreme Court to review a lower court decision granting preliminary relief in favor of a union—including forcing the employer to reinstate terminated employees—while the Board’s adjudication process remains ongoing. Under the National Labor Relations Act, federal district courts are empowered to grant preliminary relief at the NLRB’s request while an NLRB adjudication remains pending. In this case, the 6th Circuit affirmed a district court’s grant of preliminary relief—which is considered an extraordinary remedy reserved for extreme cases—under an unduly permissive standard. Specifically, the 6th Circuit, along with the 3rd, 5th, 10th and 11th Circuits, has held that the NLRB is entitled to preliminary relief upon a showing of reasonable cause to believe that the unfair labor practice alleged has occurred and that preliminary relief is just and proper. By contrast, other circuit courts have applied the traditional, and more stringent, four factor test to determine whether the NLRB is entitled to preliminary relief. Under that test, the NLRB must establish that (1) that it is likely to succeed on the merits of its claim, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest.

We argued in our amicus brief that the Court should grant Starbuck’s petition to resolve the circuit split and that the 6th Circuit’s lenient standard places unreasonable burdens on employers subject to unfair labor practice proceedings. Happily, on January 12, 2024, the Court granted the petition.

We filed another amicus brief on February 28, 2024, urging the Court to reverse the 6th Circuit's unsupported watered-down injunction standard that the Board has leveraged to interfere with American business. On June 13, 2024, the Court reversed the 6th Circuit's decision and made clear that the traditional, and more stringent, four-factor test used for determining a party’s entitlement to a preliminary injunction applies to the NLRB.

On January 10, 2025, the NAM filed an amicus brief requesting the U.S. Supreme Court to address an issue of first impression under U.S. patent law, as amended by the Leahy-Smith America Invents Act of 2011 (AIA)—whether a company’s sale of an unpatented product made by a secrete patent process is a bar to patentability of that process under the AIA. In this case, Celanese sought to enforce its patent for the secret process used to create artificial sweetener Ace-K (which itself is not patented) against Chinese-based companies that were unlawfully using that patent process. The International Trade Commission concluded that Celanese’s sale of Ace-K before obtaining a patent for its secret manufacturing process invalidated the patent under the AIA’s on-sale bar. The Federal Circuit affirmed on appeal.

We argue in our brief that the AIA and its legislative history suggest that Congress intended to require disclosure of the claimed invention (here, the secret manufacturing process) for the on-sale bar to apply to a process. Certiorari is warranted to clarify the on-sale bar’s application to process patents—a critical issue to the manufacturing community, considering protecting innovative processes is critical to maintaining global competitiveness of American manufacturers.

Unfortunately, on April 28, 2025, the U.S. Supreme Court denied the petition for certiorari.

The NAM filed an amicus brief urging the U.S. Supreme Court to grant cert to reinforce the preemptive authority of the federal government to regulate pharmaceutical drug labeling. Federal law bars drug manufacturers from unilaterally changing drug labels to include warnings for off-label uses; in fact, manufacturers can face potential criminal liability for “misbranding” a drug if the label includes information about unapproved uses. Yet in this case, Janssen Pharm., et al. v. A.Y., et al., a Philadelphia jury awarded plaintiffs $70 million in damages because the manufacturer did not include a warning about an off-label use of the drug Risperdal. There are over 10,000 nearly identical cases still pending against the company in Pennsylvania state court. Manufacturers across federally regulated industries are subject to carefully calibrated federal labeling regimes that provide the certainty and predictability needed to operate. As the NAM’s brief argues, the use of state tort law to undermine federal labeling requirements will, if allowed to continue, create a confusing and ultimately destructive “dual track” system where federal agencies and state tort law will conflict and ultimately undermine the federal goal of targeting labeling to a specific audience.

Unfortunately, on May 17, 2021, the Supreme Court denied cert.

On July 7, 2025, the NAM filed an amicus brief in support of C.H. Robinson in a case involving the trial bar’s attempt to hold CHR liable for a motorist’s injuries following a trucking accident under a negligent hiring theory. For many years, the trial bar has targeted such claims against freight brokers and shippers despite the 1994 Federal Aviation Administration Authorization Act which prevents states from undermining federal deregulation of interstate commerce through a patchwork of state laws, including state tort suits. Although most circuit courts to consider the issue have agreed that the FAAAA preempts state tort suits, the 9th Circuit has split and allowed such suits to proceed. Our brief urges the U.S. Supreme Court to decide the issue definitively, emphasizing the need for efficient domestic supply chains to support President Trump's agenda.

On April 1, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to review a Hawaii Supreme Court decision allowing plaintiffs to pursue claims under state law that seek to hold energy companies liable for climate change. In this case, the trial court denied the defendants’ motion to dismiss the plaintiffs’ state law claims, arguing that the claims are preempted by federal common law or the Clean Air Act. The Hawaii Supreme Court affirmed that decision, reasoning that neither federal common law nor the CAA preempt the plaintiffs’ state law claims.

Our brief urges the Court to grant the petition because the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature—such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.

Unfortunately, on January 13, 2025, the United States Supreme Court denied the petition for certiorari.

On July 23, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to hear 19 Republican State Attorneys General’s complaint seeking to block five states—California, Connecticut, Minnesota, New Jersey and Rhode Island—from pursuing climate change litigation against energy manufacturers. The Constitution authorizes the Court to hear disputes between states. In this case, the 19 State AGs contend that the States that have brought climate change litigation are attempting to regulate interstate GHG emissions through tort actions against energy producers—actions that violate the “horizontal separation of powers, usurp federal authority over a federal issue, and violate the prohibition on extraterritorial regulation embodied in the Commerce Clause.”

We argue in our brief that review is necessary because the subject matter and remedies sought in the climate change lawsuits are inherently national, as well as legislative and regulatory in nature—such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. Further, state courts have thus far been split on whether a state can sue energy manufacturers for emissions that occur outside their borders. The Court’s review is needed now to provide guidance.

Unfortunately, on March 10, 2025, the U.S. Supreme Court denied the State Ags motion for leave to file a bill of complaint.

The NAM filed an amicus brief urging the U.S. Supreme Court to review California’s imposition of over $300 million in civil penalties under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) without providing fair notice of the conduct that gave rise to those penalties and the scope of the potential punishment. In this case, the trial court imposed $344 million in civil penalties under the UCL and FAL—an amount 50 times greater than the largest penalties previously awarded under those statutes and larger than all other reported UCL and FAL awards combined—based on communications about FDA-approved pelvic mesh products. A California court of appeal reduced the civil penalty award to approximately $302 million but rejected the defendants-appellants’ argument that the trial court’s imposition of over $300 million in penalties violated their Fourteenth Amendment due process rights. The Supreme Court of California denied review.

We argue in our amicus brief that California’s—as well as many other states’—unfair, deceptive, and abusive practices statutes have failed to provide fair notice of the conduct that gives rise to civil penalties and the scope of the potential punishment. We urge the Supreme Court to grant the defendants-appellants’ petition for certiorari to (1) articulate the constitutional bounds for civil penalties; (2) establish principles states can use to ensure their civil penalties are objective and rational; and (3) draw from the principles the Court applies in the punitive damages and civil forfeiture contexts to place similar bounds on the aggregation of “per violation” civil penalties.

Unfortunately, on February 22, 2023, the Supreme Court denied the petition for certiorari.

On May 22, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to review a 1st Circuit decision allowing Mexico to proceed on claims attempting to hold firearms manufacturers liable for cartel violence in Mexico. In this case, the 1st Circuit reversed a District of Massachusetts decision dismissing Mexico’s tort claims against firearm manufacturers under the Protection of Lawful Commerce in Arms Act’s general prohibition of tort suits against firearms manufacturers. The 1st Circuit reversed, however, after finding Mexico’s claims exempt from the PLCAA because Mexico alleged that the defendants proximately caused it harm (expenditure of money to combat cartel violence).

We argue that the PLCAA’s proximate cause requirement incorporates traditional notions of proximate cause that have served to protect manufacturers engaged in lawful commerce of products with inherent risks from unprincipled liability. U.S. Supreme Court review of the 1st Circuit’s decision is necessary to (1) resolve the circuit split created by the 1st Circuit’s erroneous conclusion that foreseeability alone could satisfy proximate cause; (2) reaffirm that foreseeability is insufficient to establish proximate cause; and (3) ensure that no government—foreign or domestic—can use the civil justice system to regulate lawful products by imposing untenable liability costs on their continued production and sale.

Happily, on October 4, 2024, the Court agreed to hear the case.

On July 8, the NAM filed an amicus brief asking the U.S. Supreme Court to grant cert in one of over two dozen public nuisance cases seeking to drive national energy policy on climate change. The case, Suncor Energy Inc., et al v. Board of Cnty. Commissioners of Boulder Cnty., et al., is part of a coordinated, national litigation campaign filed in carefully chosen states and federal circuits by agenda-driven lawyers and activists. The issue presented is whether putative state-law tort claims alleging harm from global climate change are removable to federal court because they arise under federal law. On the few occasions where federal courts have reached the substance of these claims, the courts have concluded that the claims arise under federal common law and are displaced by the Clean Air Act.

Earlier this year, the 10th Circuit agreed with the plaintiffs’ novel argument that their claims became viable under state law and could not be removed because Congress exercised its authority and displaced the federal common law by enacting the Clean Air Act—a theory that the Second Circuit referred to in a related case as “too strange to seriously contemplate.” Further, the 10th Circuit concluded that under the well-pleaded complaint rule, federal courts are not permitted to look behind the veneer of the claims’ state law labels even when the labels are clearly masking federal law claims. In support of Supreme Court review, the NAM filed an amicus brief arguing that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.

Unfortunately, on April 24, 2023, the Court denied the petition for cert.

On April 5, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to enforce the robust pleading standards required by the Private Securities Litigation Reform Act to assert a securities fraud claim. Public companies, including many NAM members, are often the targets of frivolous securities litigation. The PSLRA created a heightened pleading standard for bringing securities fraud suits. Nevertheless, a 9th Circuit panel allowed the plaintiffs in this case to rely on an expert’s post hoc analysis to support their securities fraud claim without alleging with particularity the contents of any internal report or data source that would have put the defendant’s executives on notice that their public statements about who was purchasing the company’s gaming processing units were false or misleading when made.

We argue in our amicus brief that Supreme Court review is needed to resolve a circuit split on the pleading standards under the PSLRA. The panel’s decision will also create a playbook for securities plaintiffs to evade the PSLRA’s stringent pleading requirements by pointing to post-hoc, made-for-litigation expert opinions resting on unreliable assumptions and devoid of any basis in internal company data. Happily, on June 17, 2024, the Court granted the petition for certiorari.

On August 20, 2024, the NAM filed an amicus brief urging the Supreme Court to reverse the 9th Circuit's decision. We argue that affirming the 9th Circuit’s decision would undermine the PSLRA’s pleading standard by allowing plaintiffs to point to post-hoc, made-for-litigation expert opinions instead of particularized factual allegations. Affirming would also hamper the economic competitiveness of domestic industry by creating excessive litigation risk.

On April 17, 2023, the NAM filed an amicus brief urging the U.S. Supreme Court to review and reverse a North Carolina Supreme Court decision disregarding precedent that precludes a state from taxing the sale of goods that occurs outside its borders. Quad Graphics is a Wisconsin-based commercial printer that prints books, magazines, catalogs, and direct-mail items for customers throughout the United States, including in North Carolina. The North Carolina Department of Revenue imposed a sales tax on Quad for sales to North Carolina residents even though those sales were consummated in Wisconsin by passing title to the merchandise (and risk of loss) when the merchandise arrived at a common carrier’s shipping dock outside of North Carolina for shipping. The North Carolina Supreme Court upheld the tax, concluding that subsequent U.S. Supreme Court precedent implicitly overruled McLeod v. J.E. Dilworth Co., 322 U.S. 327 (1944), which precludes taxing out-of-state sales.

We argued in our amicus brief that review is necessary for manufacturers to have clear rules about where and when taxes will be imposed. Further, the U.S. Supreme Court should grant the petition because the Commerce Clause precludes a state regulating conduct outside its borders. All manufacturers have an interest in limiting a state’s ability to regulate conduct occurring outside its borders as well as reducing the untenable risk of double taxation.

Unfortunately, on June 20, 2023, the Court denied the petition for certiorari.