Alien Tort Statute -- active



Cargill v. Doe   (U.S. Supreme Court)

Scope of liability under the Alien Tort Statute

The NAM filed an amicus brief in support of a petition for certiorari to review and reverse a 9th Circuit decision that imposed overbroad civil liability on food producers under the U.S. Alien Tort Statute. The lawsuit alleges that the food producers violated the Alien Tort Statute by purchasing cocoa from African farmers alleged to have mistreated their workers. The defendants moved to dismiss the complaint. A federal district court granted the motion to dismiss, finding that the complaint seeks an improper extraterritorial application of the Alien Tort Statute because the alleged violations occurred in Africa. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs should be allowed to pursue their claims against the major food producers for “aiding and abetting” the alleged violations. The Ninth Circuit reasoned that the major business decisions about the cocoa purchases and related payments were made within the United States, and therefore a domestic application of the Alien Tort Statute is appropriate. This interpretation of the Alien Tort Statute would open the floodgates to potential claims against manufacturers for any payments to foreign suppliers whom a plaintiff could allege is involved in any conduct that violates international norms. The NAM’s amicus brief highlights how the 9th Circuit’s decision deepens a circuit split on the scope of the Alien Tort Statute and discourages U.S. business operations and investment in developing countries.


Related Documents:
NAM Brief  (October 28, 2019)

 

Nestle, USA, Inc. v. Doe   (U.S. Supreme Court)

Scope of Alien Tort Statute

The NAM filed an amicus brief in support of a petition for certiorari to review and reverse a 9th Circuit decision that imposed overbroad civil liability on food producers under the U.S. Alien Tort Statute. The lawsuit alleges that the food producers violated the Alien Tort Statute by purchasing cocoa from African farmers alleged to have mistreated their workers. The defendants moved to dismiss the complaint. A federal district court granted the motion to dismiss, finding that the complaint seeks an improper extraterritorial application of the Alien Tort Statute because the alleged violations occurred in Africa. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs should be allowed to pursue their claims against the major food producers for “aiding and abetting” the alleged violations. The Ninth Circuit reasoned that the major business decisions about the cocoa purchases and related payments were made within the United States, and therefore a domestic application of the Alien Tort Statute is appropriate. This interpretation of the Alien Tort Statute would open the floodgates to potential claims against manufacturers for any payments to foreign suppliers whom a plaintiff could allege is involved in any conduct that violates international norms. The NAM’s amicus brief highlights how the 9th Circuit’s decision deepens a circuit split on the scope of the Alien Tort Statute and discourages U.S. business operations and investment in developing countries.


Related Documents:
NAM brief  (October 31, 2019)

 


Arbitration -- active



Comcast Corp. v. Tillage; AT&T Mobility LLC v. McArdle   (U.S. Supreme Court)

Arbitration of California public injunction claims

The NAM filed an amicus brief in support of AT&T and Comcast's petition for certiorari to reverse two 9th Circuit rulings in related cases that would eviscerate arbitration agreements in California. The cases implicate the question of whether consumer arbitration agreements in California are enforceable if they waive a plaintiff’s right to seek a “public injunction” against the defendant company. California’s consumer protection laws generally allow a consumer to seek a public injunction that compels the defendant company to take public action to remedy the alleged consumer protection violation. In this case, for example, the plaintiffs sought public injunctions compelling AT&T and Comcast, respectively, to change their disclosures regarding certain fees. Successful public injunction claims can force companies to undertake major and disruptive changes to their business, products or services. The 9th Circuit affirmed lower court rulings invalidating the arbitration agreements because they contained a public injunction waiver. After filing in the Ninth Circuit, NAM filed an amicus brief in support of review that argues that the Federal Arbitration Act preempts California law and that requiring arbitration of public injunction claims frustrates and undermines the purpose and benefits of individualized arbitration.


Related Documents:
NAM brief  (March 30, 2020)

 

Rittmann v. Amazon.com, Inc.   (9th Circuit)

Local delivery driver arbitration

The NAM filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to reverse a district court’s decision holding that the Federal Arbitration Act (FAA), which is a national policy favoring arbitration, does not cover the arbitration agreement of a purely local, intrastate delivery driver. The district court’s approach threatens substantial litigation costs both from future disputes over the FAA’s application and from judicial decisions that deprive businesses and workers of the benefits of the FAA. Arbitration is important to manufacturers because it encourages efficient employment practices by providing lower costs to the parties and faster results in a dispute, thus avoiding drawn-out and costly litigation. The NAM’s brief argued that the plain meaning of the FAA does not exempt local delivery drivers from arbitration, and the FAA must be given a precise meaning within historical context.


Related Documents:
NAM brief  (August 23, 2019)

 

Waithaka v. Amazon.com, Inc.; Amazon Logistics, Inc.   (1st Circuit)

Whether local Amazon delivery drivers are exempt from the FAA

The NAM filed an amicus brief in the U.S. Court of Appeals for the First Circuit seeking to reverse the district court's refusal to compel arbitration based on an erroneous finding that the plaintiff, an intrastate delivery driver for Amazon, falls within the Federal Arbitration Act’s (FAA) transportation worker exemption. Like Amazon, manufacturers regularly rely on arbitration agreements in their contractual relationships. The district court’s decision threatens substantial litigation costs resulting both from future disputes over the FAA’s application and from similar rulings that deprive businesses and workers of the benefits of the national policy favoring arbitration. The NAM's amicus brief, filed November 20, 2019, highlights these concerns and explains why the district court's approach contradicts both the text and historical context of the FAA.


Related Documents:
NAM brief  (November 20, 2019)

 

Wallace, et al., v. Grubhub Holdings, Inc.   (7th Circuit)

Enforcing arbitration of local delivery drivers' wage and hour claims

The NAM filed an amicus brief urging the U.S. Court of Appeals for the Seventh Circuit to uphold a district court’s decision finding that the Federal Arbitration Act (FAA), which is a national policy favoring arbitration, covers the arbitration agreement of a purely local, intrastate delivery driver's wage and hour claims. The plaintiffs had unsuccessfully argued that the drivers are exempt from the statute's coverage because they are transportation workers. But that approach threatens substantial litigation costs both from future disputes over the FAA’s application and from judicial decisions that deprive businesses and workers of the benefits of the FAA. Arbitration is important to manufacturers because it encourages efficient employment practices by providing lower costs to the parties and faster results in a dispute, thus avoiding drawn-out and costly litigation. The NAM’s brief argued that the plain meaning of the FAA does not exempt local delivery drivers from arbitration, and the FAA must be given a precise meaning within historical context.


Related Documents:
NAM brief  (December 20, 2019)

 


Class Actions -- active



Bahamas Surgery Center, LLC v. Kimberly-Clark Corp.   (9th Circuit)

Excessive punitive damages

The NAM filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to reverse the lower court’s decision awarding a judgment of more than $20 million in punitive damages—a 5:1 ratio of punitive to compensatory damages—with no explanation and in a case with only economic harm, no physical harm. The lower court awarded plaintiffs compensatory awards totaling more than $4 million against Kimberly-Clark and added the excessive punitive damages, ignoring constitutional limits and U.S. Supreme Court precedent that generally limits the ratio to 1:1. Excessive punitive damages unjustly punish manufacturers and discourage efficient settlement of cases, especially where, as in this case, no physical harm occurred. The NAM’s brief explains why punitive damages exceeding a 1:1 ratio are inconsistent with constitutional due process and excessive when the harm is purely economic in nature.


Related Documents:
NAM brief  (August 29, 2018)

 

Harris v. Union Pacific   (8th Circuit)

Americans with Disabilities Act class action certifications

The NAM filed an amicus brief supporting Union Pacific in the U.S. Court of Appeals for the Eight Circuit in its challenge to overbroad class actions that do not include the required rigorous analysis before a court certifies a class. Union Pacific appealed a lower court order certifying a class of more than 7,000 current and former employees bringing claims under the Americans with Disabilities Act (ADA). The plaintiffs challenged methods of ensuring that workers in safety-critical jobs are fit for duty and do not have a medical condition that could suddenly incapacitate them while operating a train or performing jobs that implicate public safety. This case is significant for manufacturers because resolving ADA claims, and the employer’s defenses, requires individualized assessments before liability under the ADA can be determined. The NAM’s brief argued that the lower court’s approach to class certification would eviscerate class action protections and is not permitted in ADA cases.


Related Documents:
NAM brief  (April 29, 2019)

 

Sullivan v. Saint-Gobain Performance Plastics Corporation   (2nd Circuit)

Certification of issue classes

The NAM filed an amicus brief to overturn a district court’s class certification order that included an improper liability issue class and medical monitoring class. The litigation arises from claims of groundwater contamination alleged to emanate from an industrial facility. The district court certified an “issue class” under Rule 23(c)(4) that focused on liability and a “medical monitoring” class under Rule 23(b)(2). These sub-class certifications paper over significant individualized differences in alleged harms among the individual plaintiffs, and thereby threaten to dramatically expand the scope of class certification under Rule 23. The ruling undermines litigation fairness to defendants, who should not be required to face class action lawsuits involving individualized alleged harms. The NAM filed an amicus brief that explained why Rule 23’s predominance requirement precludes issue class certifications like these.


Related Documents:
NAM brief  (September 16, 2019)

 


Discovery -- active



Actavis Holdco U.S., Inc, et al. v. State of Connecticut, et al.   (U.S. Supreme Court)

Pushing back on grossly overbroad discovery

The NAM filed an amicus brief in support of U.S. Supreme Court review of an overbroad discovery order requiring corporate defendants in a sprawling antitrust multidistrict litigation to produce millions of documents without review for relevance or responsiveness in violation of the Federal Rules of Civil Procedure. The NAM's brief, filed February 28, 2020, argued that the interests of justice are undermined by unnecessarily burdensome discovery order that creates undue pressure to settle. All NAM members have a substantial interest in safeguarding the ability to maintain the confidentiality of corporate files except as required for the just and speedy resolution of litigation on its merits.

 

In re Fluor Intercontinental, Inc. et al.   (4th Circuit)

Protecting privileged communications

The MCLA filed an amicus brief in support of Fluor Corporation's petition to the Fourth Circuit Court of Appeals seeking review of a trial court order requiring Fluor to produce privileged communications related to an internal investigation because they had been disclosed to the government pursuant to a regulatory requirement. Under the Federal Acquisition Regulation Mandatory Disclosure Rule (MDR), federal contractors must timely disclose instances in which the contractor has credible evidence that an employee has violated certain criminal laws or the civil False Claims Act. While investigating an employee's actions, Fluor found “credible evidence” of misconduct, and reported the conclusions of its investigation to the Defense Department pursuant to the MDR. That employee then sued Fluor, asserting defamation and other claims, and sought Fluor’s internal investigative files in discovery. Fluor objected on the basis that the files were protected by the attorney-client privilege and attorney work product doctrine. The district court held that Fluor’s governmental disclosure had waived privilege because it made a set of statements as part of its MDR disclosures that were “legal conclusions, . . . which only a lawyer is qualified to make,” and because Fluor had inadvertently characterized these disclosures as “voluntary” in filings before the court. Fluor sought emergency relief in the form of a writ of mandamus, and on March 6, 2020, the MCLA filed a coalition amicus brief arguing that the trial court's order poses significant adverse consequences for manufacturers in numerous regulated industries, and may ultimately chill participation in voluntary and mandatory disclosure and compliance programs. On March 13, 2020, while denying our motion to participate as amicus, the Court granted mandamus review indicating that the district court’s decision was “clearly and indisputably incorrect.”


Related Documents:
NAM brief  (March 6, 2020)

 

General Motors LLC v. Buchanan   (Georgia Court of Appeals)

Challenging plaintiffs' ability to depose high-level corporate employees

The NAM filed an amicus brief in support of an application to the Georgia Court of Appeals to review a discovery order allowing plaintiffs to depose GM's CEO, Mary Barra, despite her lack of direct knowledge of the facts at issue in the case. The plaintiff in this wrongful death suit alleged that faulty electronic stability control technololgy caused the decedent's crash. The trial court granted the plaintiff's demand to depose Barra based on general statements she made publicly and in congressional testimony about her efforts to advance GM's culture of safety. All manufacturers have an interest in preventing abusive depositions of their high-ranking corporate executives. The NAM's brief explains that subpoenaing a corporate executive who has no unique knowledge of a matter is often intended to generate an unwarranted litigation advantage, unconnected to the substantive merits of a case. The brief further argues that review of the trial court's order is critical for promoting responsible discovery and limiting discovery abuse.


Related Documents:
NAM brief  (March 3, 2020)

 


Environmental -- active



American Chemistry Council v. EPA   (D.C. Circuit)

Risk Management Program litigation

In 2017, the MCLA sued the EPA to challenge the agency’s rule governing risk management plans for chemical facilities and oil refineries. The rule imposed costly and burdensome requirements on facilities that handle hazardous substances without improving worker or community safety. The court stayed the litigation after the EPA delayed enforcement of the rule and proposed a substantive replacement. The EPA then issued a final rule in 2019. The litigation remains stayed pending further orders from the court.


Related Documents:
Petition for review  (March 13, 2017)
Petition to EPA for reconsideration  (February 28, 2017)

 

Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Ass'n   (U.S. Supreme Court)

Unreasonable pipeline permitting restrictions

The NAM filed an amicus brief in support of a petition for certiorari seeking U.S. Supreme Court review and reversal of a 4th Circuit holding that invalidated a federal permit for a major natural gas transmission pipeline that crosses U.S. Forest Service lands. An environmental group sued the U.S. Forest Service to invalidate its permit allowing the Atlantic Coast Pipeline to cross beneath the Appalachian Trail hiking route. A panel of the Fourth Circuit held that the Mineral Leasing Act does not allow agencies to grant rights-of-way for pipelines to cross any stretch of the Appalachian Trail; rather, such approvals must come from a majority vote of the U.S. congress. This holding effectively converts the Appalachian Trail into a 2,200-mile barrier to pipeline construction from Maine to Georgia. The court’s reasoning could also be applied to any one of the dozens of pipelines that currently cross beneath the trail because such pipelines require periodic permit renewals. In support of the pipeline’s petition for Supreme Court review, the NAM filed an amicus brief that explained the legal flaws in the panel’s reasoning and highlighted the important benefits that pipelines provide for manufacturers and the national economy. On October 4, 2019, the court granted review for the 2019-2020 term, and on December 9, 2019, the NAM filed a coalition amicus brief on the merits in support of the pipeline.


Related Documents:
NAM brief  (December 9, 2019)
NAM brief  (July 26, 2019)

 

Atlantic Richfield Co. v. Christian   (U.S. Supreme Court)

Preemption of private restoration plans by CERCLA

In May of 2018, the NAM filed an amicus brief to urge the U.S. Supreme Court to review and reverse a Montana Supreme Court decision that undermines the predictability of EPA’s environmental remediation orders. The case arises under the federal Comprehensive Environmental Response, Compensation, and Liability Act (known as “CERCLA” or “Superfund”). Under CERCLA, EPA has the authority to order comprehensive clean up orders for sites containing hazardous wastes. Those orders preempt state and individual efforts to impose remediation requirements. The Montana Supreme Court nonetheless allowed nearby landowners to seek compensation for a remediation plan that conflicts with the EPA’s cleanup order. If not overturned, that decision will undermine the certainty and predictability for manufacturers that own Superfund sites. In support of a petition for review by the U.S. Supreme Court, the NAM filed an amicus brief that explains how the Montana Supreme Court’s decision frustrates environmental remediation. On June 10, 2019, the Court granted review of the case for the Court’s 2019-2020 term. On August 28, 2019, the NAM filed an amicus brief on the merits that supports Atlantic Richfield's arguments on the merits.


Related Documents:
NAM brief  (August 28, 2019)
NAM brief  (May 31, 2018)

 

Baker v. Saint-Gobain Performance Plastics Corp.   (2nd Circuit)

Medical monitoring and economic loss claims in class action lawsuit

A group of individual plaintiffs brought a class action lawsuit against defendant Saint-Gobain Performance Plastics Corp., alleging that Saint-Gobain released perfluorooctanoic acid (PFOA) into groundwater that seeped into the plaintiffs' nearby land. The plaintiffs argued that they are entitled to financial damages to pay for ongoing medical health monitoring because of their alleged exposure to PFOA, and to compensate them for lower property values allegedly caused by the contamination. Saint-Gobain moved to dismiss the complaint because New York law does not recognize claims for medical monitoring absent any evidence of physical harm and does not recognize diminution of property value due to alleged groundwater contamination. The district court denied the motion to dismiss but certified immediate appellate review by the United States Court of Appeals for the Second Circuit. The NAM filed an amicus brief on behalf of Saint-Gobain to ensure that the law limiting medical monitoring and diminution-of-value claims remains appropriately balanced and favorable to manufacturers. Without appropriate limitations on these types of claims, manufacturers would be subject to massive and unwarranted increases in liability exposure.


Related Documents:
NAM brief  (March 1, 2018)

 

Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp.   (5th Circuit)

Citizen suit interference with environmental regulation

In 2015, the NAM filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit supporting a federal judge’s decision not to impose excessive penalties on ExxonMobil for various permit violations. On remand to the district court, the groups reduced their requested amount of penalties from $642 million to about $40 million, and the district judge awarded them about $20 million, prompting Exxon’s appeal back to the Fifth Circuit. The plaintiffs also asked for an additional $6 million in fees. This case is important to manufacturers because courts should exercise discretion in determining civil penalties to prevent creating perverse incentives for plaintiffs. In 2018, the NAM filed another amicus brief arguing that the Constitution and Clean Air Act limit citizen suits under the Clean Air Act, and asking the Fifth Circuit to enforce the constitutional line that limits federal courts to deciding discrete cases and controversies and prevents them from acting as regulators or policymakers.


Related Documents:
NAM brief  (January 19, 2018)
NAM brief  (September 17, 2015)

 

Environmental Comm. of the Fla. Elec. Power Coord. Grp. v. EPA   (D.C. Circuit)

Challenging the EPA's effort to amend state plans regarding emissions during startups, shutdowns and malfunctions

The NAM sued the EPA in 2015 to challenge the EPA’s declaration that 36 states’ state implementation plans (SIPs) under the Clean Air Act are invalid because they allow air emissions in excess of permit limits during startup, shutdown or equipment malfunctions. That flexibility is important to manufacturers that might temporarily exceed permit limits for reasons beyond their control. The litigation has been held in abeyance since April 2017 while the EPA considers whether to revise or rescind the rule.


Related Documents:
Industry reply brief  (September 26, 2016)
Industry brief  (March 16, 2016)

 

Environmental Defense Fund v. EPA   (D.C. Circuit)

Air permitting streamlining

On June 25, 2018, the NAM moved to intervene in a case involving permitting requirements for manufacturers under the Clean Air Act. Environmental groups sued to challenge a guidance document from the U.S. Environmental Protection Agency (EPA) that streamlines Clean Air Act permits under the New Source Review program for facilities that expand or modify their operations. If the plaintiffs' claims are successful, facility modifications could be significantly delayed and rendered more expensive. The NAM's motion asks the court to allow the NAM to become a co-defendant in the case with EPA to bring the voice of manufacturers in defense of the EPA's sensible policy.

On July 13, 2018, the court held the case in abeyance pending the completion of an EPA rulemaking to implement the terms of the guidance document. The litigation is expected to reactivate when the final rule issues.


Related Documents:
NAM Motion to Intervene  (June 25, 2018)
NAM brief  (May 31, 2018)

 

County of Maui, Hawaii v. Hawaii Wildlife Fund   (U.S. Supreme Court)

Scope of Clean Water Act jurisdiction

The U.S. Supreme Court should rule that the federal Clean Water Act does not regulate groundwater because the Act by its terms applies only to surface waters and would conflict with other environmental laws specifically tailored to protect groundwater. The U.S. Court of Appeals for the Ninth Circuit held in 2018 that groundwater is jurisdictional under the Clean Water Act, reasoning that groundwater can serve as a conduit to jurisdictional surface waters. Under this "conduit theory" of jurisdiction, certain industrial activities on dry land could give rise to lawsuits alleging such activities polluted nearby surface waters through groundwater connections. On appeal to the U.S. Supreme Court, the NAM’s amicus brief argued that this broad interpretation goes far beyond the scope and intent of the Clean Water Act, interferes with other environmental statutes focused on groundwater protection, would be impossible to implement, and would impose incalculable liability risk on manufacturers and other regulated industries.


Related Documents:
NAM Brief  (May 16, 2019)

 

In re: PennEast Pipeline Company LLC   (3rd Circuit)

State interference with energy development

The NAM filed an amicus brief to oppose New Jersey’s efforts to stop construction of a major new proposed natural gas pipeline to deliver natural gas from Pennsylvania to the eastern United States. The proposed PennEast Pipeline is natural gas transmission pipeline to bring abundant and low-cost natural gas from northeastern Pennsylvania to manufacturers, power generators, and other customers in New Jersey and throughout the eastern United States. The state of New Jersey resisted the pipeline's exercise of eminent domain under the federal Natural Gas Act, arguing that the 11th Amendment to the U.S. Constitution prohibits federal courts from effectuating the eminent domain over lands in which the state has a property interest (such as a conservation easement). If New Jersey's argument prevails, it would give that state and others a unilateral veto over federally approved natural gas transmission pipelines. Those vetoes would restrict future pipeline infrastructure development, leading to lower availability of natural gas and increased costs to manufacturers for natural gas, electricity, and other products derived from natural gas. The NAM's amicus brief explains the practical implications of New Jersey's argument and argues why the 11th Amendment does not support the state's interpretation. In a troubling decision for manufacturers, the Third Circuit on September 10, 2019, held that New Jersey's sovereign immunity bars eminent domain proceedings against New Jersey under the Natural Gas Act. On October 29, 2019, our coalition petitioned the court for rehearing and rehearing en banc, in which we highlighted the 3rd Circuit's significant disruption of new energy infrastructure development and why the full 3rd Circuit court should hear the case en banc. Unfortunately, the court denied en banc review.


Related Documents:
NAM brief  (October 29, 2019)
NAM brief  (May 15, 2019)

 

Lighthouse Resources, Inc. v. Inslee   (9th Circuit)

Local interference with free trade

The NAM filed an amicus brief in a case involving the state of Washington’s authority to prohibit certain exports from Washington’s coastal ports. Washington state denied several environmental permits necessary to construct a new coal export terminal near Longview, Washington. The denials were improperly based on concerns about the use of coal for electricity generation in foreign countries. The state’s actions have dangerous implications for the power of individual states to interfere with interstate and international trade. A federal district court rejected the plaintiffs’ claims. On appeal to the 9th Circuit, the NAM’s amicus brief explained how state and local interference with foreign trade undermines a uniform foreign policy and is harmful to the national economy. Moreover, we argued that Washington’s actions violate the foreign commerce clause and that allowing the state’s actions to stand would give a green light to state and local interference with foreign trade policy.


Related Documents:
NAM brief  (November 6, 2019)

 

Meritor, Inc. v. EPA   (D.C. Circuit)

Superfund vapor intrusion mitigation

The NAM filed an amicus brief in the U.S. Court of Appeals for the DC Circuit challenging the Environmental Protection Agency’s (EPA) decision to place an industrial site on the National Priorities List (NPL) under the Superfund program. The NPL is a list of contaminated sites that EPA has determined have the highest priority for investigation and possible cleanup. The site at issue in this case was placed on the list based solely on subsurface intrusion, also known as “vapor intrusion,” without considering the site’s sub-slab depressurization system used to mitigate vapor intrusion. If upheld, the EPA’s decision to exclude the mitigation system would undermine the efforts of manufacturers who have proactively installed and operated these systems. The NAM’s brief argued that the EPA arbitrarily and unlawfully failed to take into account the active mitigation system and used a residential rather than industrial exposure benchmark.


Related Documents:
NAM brief  (April 8, 2019)

 

Natural Resources Defense Council v. Wheeler   (S.D.N.Y.)

Applicability of "Waters of the United States" rule

On February 6, 2018, the EPA issued a final rule that adds an applicability date of February 6, 2020, to the EPA’s 2015 rule governing jurisdictional “Waters of the United States” under the Clean Water Act (2015 WOTUS rule). A coalition of environmental groups sued EPA to challenge the rule, arguing that EPA lacks the statutory authority to impose an applicability date. The applicability date rule is important to manufacturers because it precludes application of the 2015 WOTUS rule while EPA develops and issues a sensible replacement WOTUS rule. The 2015 WOTUS rule asserts federal jurisdiction over millions of acres of landscape features throughout the United States, triggering permitting requirements that will slow development and increase permitting costs on manufacturers. The rule’s vague and ambiguous terms also create confusion and increase the risk of inadvertent violations. The NAM intervened in the litigation to help EPA defend the applicability date rule to allow EPA the necessary time to develop and issue a new WOTUS rule.


Related Documents:
NAM brief  (June 29, 2018)

 

New York v. EPA   (D.C. Circuit)

Defending current Clean Air Act permits for hundreds of manufacturers

The NAM intervened on behalf of the EPA to defend the EPA’s decision not to impose new Clean Air Act emissions limitations on hundreds of manufacturing facilities throughout the Midwest. In 2018, New York petitioned the EPA to force nine nearby states to impose stringent new air emissions restrictions on manufacturers and other facilities within their borders. The NAM filed coalition comments with the EPA that explained why the EPA should reject the petition, which it did in October of 2019. New York then sued the EPA to overturn the rejection. The NAM -- together with other impacted trade associations and individual companies -- intervened in the case to defend the EPA’s decision and to represent the interests of manufacturers in the litigation, filing an initial proof brief in the D.C. Circuit Court of Appeals on March 5, 2020.


Related Documents:
NAM brief  (March 5, 2020)

 

North Dakota v. EPA   (D.N.D.)

Challenge to "Waters of the United States" rule

Upon promulgation of the EPA's 2015 rule defining jurisdictional "Waters of the United States" (WOTUS) under the Clean Water Act, a coalition of states led by North Dakota sued the EPA in federal district court in North Dakota to challenge the rule. The states then moved for preliminary injunction against the rule, which the court granted within the territorial boundaries of the plaintiff states (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming). Soon thereafter, however, the U.S. Court of Appeals for the Sixth Circuit claimed authority to consider all challenges to the WOTUS rule—to the exclusion of the North Dakota district court and several other district courts in which lawsuits had been filed, including an NAM coalition lawsuit in the U.S. District Court for the Southern District of Texas. In January 2018, however, the U.S. Supreme Court ruled that the Sixth Circuit lacked jurisdiction to consider the various WOTUS challenges. This reactivated the North Dakota case, allowing the court to proceed to the states’ merits challenges to the 2015 rule. On June 8, 2018, the NAM filed an amicus brief on behalf of the states that explains how the rule was promulgated without required procedure and how the rule violates the Clean Water Act and the U.S. Constitution.


Related Documents:
NAM brief  (June 8, 2018)

 

North Dakota v. EPA   (D.C. Circuit)

EPA’s New Source Performance Standards (NSPS) for greenhouse gases from electric utilities

The NAM sought review in the U.S. Court of Appeals for the D.C. Circuit of the Environmental Protection Agency’s (EPA) 2015 Clean Power Plan rule governing New Source Performance Standards (NSPS) for greenhouse gases from electric utilities. The rule is an attempt to address emissions from new, modified and reconstructed electric generating units. This case is important for manufacturers because EPA should not rely on policy preferences rather than the rule of law.

The NAM sued the EPA with a broad industry coalition to challenge the NSPS rule. We seek to invalidate the rule to pave the way for a sensible alternative. Our briefs argue that the rule is unlawful because EPA’s conclusions are arbitrary and capricious, not supported by substantial evidence, and fail to make the requisite endangerment findings. In 2017, the D.C. Circuit held the rule in abeyance while the current administration considers whether to revise or rescind the rule.


Related Documents:
Brief on the merits  (October 13, 2016)
Preliminary statement of issues  (January 25, 2016)

 

North Dakota v. EPA   (D.C. Circuit)

Challenging the EPA's denial of reconsideration of Clean Power Plan

On 2/16/17, the NAM and other associations moved to intervene in a case brought by North Dakota challenging the EPA's latest action on its Clean Power Plan (CPP). The agency rejected a petition to reconsider the rule, and that decision is now being challenged in court. The case is likely to be affected by the court's soon-to-be-issued ruling in our main challenge to the CPP rule, since the procedural and substantive defects in the petition for reconsideration overlap significantly with the issues raised in the case already before the court. A motion to hold the case in abeyance pending EPA reconsideration was granted, and the case remains in abeyance.


Related Documents:
Motion to Intervene  (February 16, 2017)

 

Oakland Bulk & Oversized Terminal, LLC v. City of Oakland   (9th Circuit)

Opposing local interference with energy exports

The NAM filed an amicus brief to defend energy producers against efforts by municipalities to ban energy exports from costal ports. In 2016, the city of Oakland, California, passed an ordinance that restricted the construction of a proposed new coal export terminal along the San Francisco Bay. The public explanation for the ordinance was the protection of local health and safety, but the actual rationale for the ban is the city’s ideological objection to the exportation of American coal to global markets. If allowed to stand, this action has dangerous implications for the power of individual cities to interfere with interstate and international trade. The NAM's amicus brief highlights how such restrictions can harm manufacturers and argues that this interference violates the U.S. Constitution.


Related Documents:
NAM brief  (February 15, 2019)

 

Oklahoma v. EPA   (10th Circuit)

Challenge to 2015 "Waters of the U.S. Rule"

Oklahoma and a coalition of business groups sued to challenge the EPA's 2015 rule governing jurisdictional "Waters of the United States" under the Clean Water Act. The rule adversely impacts manufacturers by asserting federal jurisdiction and permitting requirements over millions of acres of dry land throughout the country and by imposing unclear rules on land development. Oklahoma sought a preliminary injunction to stop the rule. A district court denied that injunction, and Oklahoma appealed. In support of their appeal, the NAM filed a coalition amicus brief that explains the impact of the rule on manufacturers and other sectors of the economy and supports an injunction in Oklahoma.


Related Documents:
NAM brief  (August 16, 2019)

 

Portland Pipe Line Corporation v. City of South Portland   (1st Circuit)

Local interference with energy exports

The NAM filed an amicus brief in the U.S. Court of Appeals for the First Circuit to overturn the city of South Portland, Maine’s ban on crude oil exports from the city’s harbor. The city council claimed it enacted the ban for health and safety reasons, but various public statements revealed a political opposition to the planned transportation of Canadian crude oil by pipeline to the harbor for export. The pipeline owner sued the city, arguing the ban violates the U.S. constitution’s commerce clause. A federal district court sided with the city. If such local energy export bans are allowed to stand, energy production and transportation would be restricted, shutting some products out of some markets, and increasing energy prices for many manufacturers. On appeal to the First Circuit, the NAM’s amicus brief explains the importance of the free trade of energy for manufacturers and argues that the city’s interference with free trade violates the U.S. constitution.


Related Documents:
NAM brief  (February 19, 2019)

 

Sierra Club v. EPA   (D.C. Circuit)

Defending Clean Air Act trading program for ozone NAAQS

The NAM filed an amicus brief to support EPA’s defense of a trading program for ozone NAAQS pollutants. The Clean Air Act requires EPA to establish national ambient air quality standards for six pollutants, including ozone. A 2018 EPA rule allowed companies to trade ozone pollutants with other emitters to meet federal emissions requirements. An environmental group sued to challenge the rule, arguing that the trading program is not allowed by the Clean Air Act. NAM members that seek to expand or build a new facility in many areas of the country can benefit greatly from this trading program. Pollutant trading programs like this provide a market-based solution that companies can use to grow their operations while reducing harmful air emissions in the aggregate. The NAM’s amicus brief explains the important and effective role of emissions trading and why such a program complies with the Clean Air Act.


Related Documents:
NAM brief  (November 8, 2019)

 

Sierra Club v. EPA   (D.C. Circuit)

Challenge to affirmative defense for equipment malfunctions

In June, 2014, the Sierra Club challenged 9 EPA Clean Air Act rules in court, alleging that provisions in each rule are no longer valid as a result of a decision in April by the U.S. Court of Appeals for the D.C. Circuit. The provisions at issue allows companies an affirmative defense to civil penalties for exceeding emissions limits that are caused by malfunctions. A company must prove that the malfunction was sudden, infrequent, not reasonably preventable and not caused by poor maintenance or careless operation, and that it took steps to correct the malfunction and minimize resulting emissions.

In April, the court decided in Natural Resources Defense Council v. EPA to vacate portions of a Portland cement industry rule pertaining to the affirmative defense, finding that the EPA lacked the authority to create a defense applicable in federal court. This Sierra Club suit attempts to remove the defense from 9 other rules in which it arises, involving various industries and kinds of equipment. Challenges to regulations must be brought within 60 days of their promulgation unless the petition "is based solely on grounds arising after such sixtieth day . . . ." The suit claims that the NRDC case decision constitutes grounds arising after the rules were promulgated.

In July, the NAM and 13 other business associations filed a motion to intervene in the suit. Manufacturers will be negatively impacted if the suit is successful, since it could make them liable for permit violations arising from unavoidable equipment malfunctions. That liability can arise both from EPA citations and from citizen suits around the country.

The rules at issue govern chemical manufacturing, pulp and paper mills, steel pickling, marine tank vessel loading operations, industrial steam-generating units, nitric acid plants and others.

On July 25, the court ordered the case held in abeyance while the EPA decided on a pending administrative petition from the Sierra Club to revise the rules. The EPA granted the petition, and on December 17, 2014, the court held this case in abeyance until the EPA completes the rules revision process. As of July 30, 2019, the EPA has not yet completed its administrative process.


Related Documents:
NAM Motion to Intervene  (July 17, 2014)

 

South Carolina Coastal Conservation League v. Wheeler   (D.S. Car.)

Defending EPA's rescission of the 2015 "Waters of the United States" rule

The MCLA intervened in an environmental group’s legal challenge to the EPA’s rescission of the prior administration’s 2015 “Waters of the United States” rule. The EPA rescinded the 2015 rule because the rule’s lack of clarity resulted in regulatory uncertainty and confusion. Additionally, because some federal courts invalidated the 2015 rule in some parts of the country and not others, manufacturers faced a regulatory patchwork that made compliance across different states very difficult. The EPA’s rescission of the 2015 rule restored regulatory consistency and clarity. A coalition of environmental groups sued to challenge the rescission, arguing that the EPA exceeded its authority in doing so. The NAM and other leading industry trade associations intervened in the case to help defend the rule and to represent the interests of our members in the litigation.

 

State of New York v. Wheeler   (S.D.N.Y.)

Applicability of "Waters of the United States" rule

On February 6, 2018, the EPA issued a final rule that adds an applicability date of February 6, 2020, to the EPA’s 2015 rule governing jurisdictional “Waters of the United States” under the Clean Water Act (2015 WOTUS rule). A group of states led by New York sued EPA to challenge the rule, arguing that EPA lacks the statutory authority to impose an applicability date. The applicability date rule is important to manufacturers because it precludes application of the 2015 WOTUS rule while EPA develops and issues a sensible replacement WOTUS rule. The 2015 WOTUS rule asserts federal jurisdiction over millions of acres of landscape features throughout the United States, triggering permitting requirements that will slow development and increase permitting costs on manufacturers. The rule’s vague and ambiguous terms also create confusion and increase the risk of inadvertent violations. The NAM intervened in the litigation to help EPA defend the applicability date rule to allow EPA the necessary time to develop and issue a new WOTUS rule.


Related Documents:
NAM brief  (June 28, 2018)

 

Tex. Ass'n of Mfrs. v. CPSC   (5th Circuit)

Challenge to CPSC phthalates rule

On 12/14/17, the NAM and American Chemistry Council, along with local Texas groups, filed a challenge in the Fifth Circuit Court of Appeals to the Consumer Product Safety Commission’s (CPSC) final rule on phthalates, which restricts the phthalate DINP. The CPSC’s decision to restrict DINP was misguided, scientifically inaccurate and the result of a deeply flawed process that fabricated rationales for a predetermined outcome. The Commission should have relied on scientifically reasonable statistics when assessing the exposure data, which demonstrate the cumulative risk of exposure to these phthalates is actually well below any level of concern – even for sensitive populations. DINP, as currently used in commercial and consumer products, does not pose a risk to human health at typical exposure levels. The CPSC’s unfounded decision here could be a slippery slope to restrict other chemicals that special interests find objectionable.

On 2/5/18, the NAM filed a response to the CPSC's motion to dismiss. The NAM's filed its opening brief on 8/20/18 and its reply brief on 12/3/18.


Related Documents:
NAM reply brief  (December 3, 2018)
NAM opening brief  (August 20, 2018)
NAM response  (February 5, 2018)
NAM petition for review  (December 14, 2017)

 

Troy Corporation v. EPA   (D.C. Circuit)

Scope of CERCLA listings

The NAM filed an amicus brief on behalf of Troy Corporation to argue that the EPA’s listing of sites under the Comprehensive Environmental Response, Compensation, and Liability Act should accurately reflect the site’s potential environmental risks and not rely on artificial and inaccurate rules of thumb. The EPA added a creek that runs through and adjacent to Troy Corporation’s manufacturing facility in Newark, NJ to CERCLA’s National Priority List. The listing was based in significant part on the EPA’s assessment that the creek had the potential to contaminate a fishing pier located 13 miles away. That assessment was based solely on regulatory assumptions that Troy rebutted in regulatory comments. In response to those comments, EPA responded that it is entitled to rely on the bright line presumptions in the regulation and need not demonstrate any actual risk of contamination. If such a position is upheld, many manufacturing sites could be listed as “priority” CERCLA sites when they have no actual potential to cause such environmental harm. The NAM’s amicus brief argues that this approach to listing sites violates CERCLA and could adversely impact many manufacturers.


Related Documents:
NAM brief  (October 25, 2019)

 

United States v. Ameren   (8th Circuit)

Clean Air Act permits for generator repairs

The NAM filed an amicus brief to seek to overturn a district court ruling that erroneously penalized an electric generating facility under the Clean Air Act and improperly imposed additional penalties on a separate and unrelated generation facility. Electric utility company Ameren undertook needed repairs to a coal-fired electric generation unit. The EPA then sued Ameren, claiming that the repairs failed to comply with the Act’s New Source Review provisions, which require permits for “major modifications” to generating units. A federal district court judge agreed with the EPA. For a remedy, the judge ordered Ameren to obtain the permit and ordered a decrease in emissions at a separate Ameren electric generating unit. On appeal to the 8th Circuit, the NAM filed an amicus brief that highlights the problematic consequences of this decision on generators and other facilities that require Clean Air Act permits.


Related Documents:
NAM Brief  (January 30, 2020)

 


Expert Testimony -- active



Walsh v. BASF   (Pennsylvania Supreme Court)

Accepted standards for expert testimony

The NAM filed an amicus brief in the Pennsylvania Supreme Court supporting review of a wrongful-death suit against multiple pesticide manufacturers to determine whether the lower courts improperly tossed expert testimony. The trial court struck the plaintiffs experts’ testimony as unsupported because the experts gave novel scientific testimony without showing they followed methods generally accepted by the scientific community. The Superior Court reversed the trial court, and BASF appealed. This case is important because manufacturers frequently confront expert opinions involving exposure to allegedly toxic substances, and those expert opinions need to conform to generally accepted scientific and medical standards. The NAM’s brief argued that the Superior Court failed to respect the discretionary role of judicial gatekeeping to consider the reliability of expert methodology in a case-specific context.


Related Documents:
NAM brief  (May 14, 2019)

 


Free Speech -- active



Americans for Prosperity Foundation v. Becerra   (U.S. Supreme Court)

Protecting First Amendment rights of association

The NAM filed an amicus brief to support a petition for certiorari to the U.S. Supreme Court that seeks to overturn a requirement by the California Attorney General that compels public charities to report to the state the names of their contributors. Beginning in 2010, the California Attorney General began demanding that thousands of registered charities annually disclose to the state the individual names and addresses of major donors. A federal district court and the 9th Circuit upheld the requirement. The full 9th Circuit denied en banc review over a five-judge dissent that recognized the requirement “eviscerates the First Amendment protections long established” by the First Amendment to the U.S. Constitution. This issue is important to manufacturers because many of them contribute to charities and belong to associations like the NAM that do not disclose their members but could be compelled to do so based on the 9th Circuit’s reasoning. In support of a petition for certiorari to review and reverse the 9th Circuit holding, the NAM filed an amicus brief that explains the important first amendment principles at stake and how the lower courts failed to appropriately protect those rights.


Related Documents:
NAM Brief  (September 25, 2019)

 

ExxonMobil v. Healey   (2nd Circuit)

Government investigations to chill corporate speech

The NAM filed an amicus brief to oppose overbroad government investigations intended to chill corporate scientific inquiry, debate, and discussion. ExxonMobil sued the attorneys general of New York and Massachusetts to challenge overbroad subpoenas and civil investigative demands seeking more than 40 years of communications between the company and other parties involving the topic of climate change. On appeal to the U.S. Court of Appeals for the Second Circuit, the NAM’s brief explains that corporations contribute to important policy discussions involving economic, scientific and other issues of public concern and that expansive use of government investigatory powers can chill corporations’ contributions to the free exchange of ideas.


Related Documents:
NAM brief  (August 10, 2018)

 


Government Regulation -- active



Commonwealth of Pennsylvania v. Chesapeake Energy Corp. and Anadarko Petroleum Corp.   (Pennsylvania Supreme Court)

Pennsylvania AG improperly expands scope of state consumer protection statute

The NAM filed an amicus brief arguing that the Supreme Court of Pennsylvania should reject the state Attorney General's attempt to create new antitrust causes of action and remedies through Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL). The Attorney General filed a lawsuit on behalf of certain Pennsylvania landowners alleging that Chesapeake and Anadarko committed antitrust violations and engaged in other deceptive and misleading conduct in relation to the procurement of natural gas leases. Both the trial and appellate courts allowed the case to proceed even though antitrust violations had never been considered actionable under the UTPCPL and the Pennsylvania General Assembly had repeatedly considered and declined to pass antitrust legislation. The NAM’s amicus brief argued that matters of public policy and the creation of causes of action and remedies are within the exclusive domain of the legislature and that by its plain language, the UTPCPL does not include antitrust causes of action nor permit antitrust remedies. The brief further explained that allowing the AG to maintain this lawsuit threatened to create a chilling effect for the business community in Pennsylvania.


Related Documents:
NAM brief  (January 9, 2020)

 

Montana & Wyoming v. Washington   (U.S. Supreme Court)

State interference with free trade

The NAM filed an amicus brief in support of Montana and Wyoming's Motion for Leave to File a Bill of Complaint in an Original Action in the U.S. Supreme Court involving the state of Washington’s authority to prohibit certain exports from Washington’s coastal ports. Washington state denied several environmental permits necessary to construct a new coal export terminal near Longview, Washington. The denials were improperly based on climate concerns about the use of coal for electricity generation in foreign countries. The state’s actions have dangerous implications for the power of individual states to interfere with interstate and international trade. The NAM filed amicus briefs both at the district court and Ninth Circuit stages arguing that this interference is unconstitutional and harms the national economy. Unfortunately, the courts rejected the plaintiffs' claims. The plaintiffs are now asking the Supreme Court to correct this problem through the exercise of its original jurisdiction to hear disputes between states. NAM once again filed an amicus brief explaining that Washington's action threaten to hurt American workers, inhibit American economic growth, and violate the Constitution’s command that the federal government serve as the sole representative of the United States in foreign trade and foreign affairs.


Related Documents:
NAM brief  (March 20, 2020)

 

Nat'l Pork Producers Council & Amer. Farm Bureau Fed. v. Ross, et al.   (S.D. Cal)

Challenging California's improper efforts to regulate the national pork market

The MCLA filed an amicus brief urging the Southern District of California to reject the state of California’s motion to dismiss the National Pork Producers Council and American Farm Bureau Federation’s 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, joined by the U.S. Chamber of Commerce, the Food Manufacturing Institute, the National Cattlemen’s Beef Association, and the National Mining Association 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. 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.


Related Documents:
NAM brief  (March 6, 2020)

 

North American Meat Institute v. Becerra, et al.   (9th Circuit)

Challenging California's effort to regulate conduct wholly outside its borders

The NAM filed an amicus brief urging the Ninth Circuit Court of Appeals to review a lower court's refusal to enjoin a California ballot initiative that discriminatorily 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, joined by the U.S. Chamber of Commerce and the Food Manufacturing Institute (FMI), argued in the brief that Proposition 12 violates the Commerce Clause by (1) leveling the playing field to the benefit of California producers over out-of-state producers; (2) regulating conduct beyond California’s borders, impinging on other states’ sovereign authority to legislate within their own jurisdictions; and, (3) substantially burdening out-of-state producers absent a sufficient and legitimate local interest. This litigation is important to all manufacturers because if upheld, Proposition 12 may embolden other states to discriminate against out-of-state interests, resulting in a complex web of inconsistent and competing extraterritorial regulations in the agriculture and food industries, and beyond.


Related Documents:
NAM brief  (January 10, 2020)

 


International -- active



Esso Exploration & Production Nigeria Ltd. & Shell Nigeria Exploration & Production Co. Ltd. v. Nigeria National Petroleum Corp.   (2nd Circuit)

Protecting foreign investments through enforcement of international arbitration awards

The NAM filed an amicus brief seeking to reverse a lower court's refusal to enforce a valid $1.8B arbitral award related to Exxon's off-shore operations in Nigeria that was wrongly set aside by Nigerian courts. Pursuant to the parties' agreement, the award was rendered in Nigeria by a competent panel following fair procedures, yet was erroneously set aside by politically motivated Nigerian courts. The Southern District of New York followed suit, giving deference to the Nigerian set-aside judgment and refusing to enforce the award. On appeal to the 2nd Circuit, the NAM filed an amicus brief arguing that under the New York Convention, a U.S. court should not defer to a foreign court's judgment setting aside an arbitral award where the arbitration involved a state-owned entity, securing the set-aside judgment in its own sovereign courts, based upon parochial grounds far removed from international norms. This litigation is important for all manufacturers that employ arbitration clauses in their international dealings and rely on proper construction of the treaties governing their enforceability and the enforceability of the resulting awards.


Related Documents:
NAM brief  (January 17, 2020)

 

Thailand - Customs and Fiscal Measures on Cigarettes from the Philippines   (World Trade Organization)

Customs valuation issue in Thailand

The NAM led a group of associations in filing two World Trade Organization (WTO) statements because Thailand failed to abide by its WTO commitments on customs valuation and now threatens a company with fines of more than $2 billion and imprisonment of several individuals. Proper valuation is important because many manufacturers operate through interconnected commercial relationships and supply and production chains with producers and suppliers throughout the United States and foreign countries. The statements emphasize the importance of the WTO’s customs valuation rules to international trade, which allow companies to produce goods as efficiently as possible and to access international consumers in the global marketplace.


Related Documents:
WTO second statement  (January 25, 2019)
WTO statement  (May 12, 2017)

 


Jurisdiction -- active



Hammons v. Ethicon   (Pennsylvania Supreme Court)

Jurisdiction over out-of-state defendants

The NAM filed an amicus brief on behalf of medical device manufacturers to argue that manufacturers should be immune from being sued in states where they do not do business. Even though plaintiff’s injuries did not occur in Pennsylvania and her claims did not relate to any of defendant’s contacts in the state, a Pennsylvania trial court allowed her case over an out-of-state defendant. This case is significant for manufacturers that operate only in one state or region in the United States, and who should not be subject to being sued across the country. The NAM’s brief in the Pennsylvania Supreme Court argued that recent U.S. Supreme Court rulings do not permit state courts to exercise jurisdiction over companies based on activities in a state that are unrelated to a claim.


Related Documents:
NAM brief  (June 21, 2019)

 


Labor Law -- active



Cellco Partnership v. NLRB   (9th Circuit)

Restriction on use of email in employee handbooks

The NAM filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit supporting employers’ right to limit what information is sent on work emails. The case arises from a decision by the National Labor Relations Board (NLRB) that deems illegal portions of Verizon's workplace Code of Conduct that restricts employee use of company email because the NLRB believes the policies violate employee rights to discuss wages, hours and terms of employment. This case is important because manufacturers need to be able to adopt reasonable workplace regulations. The NAM’s brief argues that the ruling ignores the rights of employers to establish safe and productive workplaces and secure email systems, creates legal and practical problems for employers of all sizes, and infringes First Amendment speech rights. On September 24, 2018, the court held the case in abeyance pending the NLRB's reconsideration of the standard set forth in Purple Communications Inc., 361 N.L.R.B. 1050 (2014), which held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by NLRA Section 7. On December 17, 2019, the NLRB issued its decision, agreeing with the NAM and reinstating the right of an employer to restrict employee use of its email system as long as it does so on a nondiscriminatory basis.


Related Documents:
NAM brief  (November 16, 2017)

 

Communication Workers v. NLRB   (9th Circuit)

Use of company email by employees

The NAM filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit supporting restrictions on the use of company email systems by employees. This case arises from a 2014 decision by the National Labor Relations Board (NRLB) that if a company allows employees to use their email system, the employees have a statutory right to use the system on nonworking time for a wide range of messages and companies have limited oversight authority. This is important for manufacturers because the 2014 NLRB decision allows for extensive workplace distractions and personal misuse of business communication systems. The NAM’s brief argues that the ruling creates legal and practical problems for employers of all sizes, is unnecessary in today's world of social media and free email accounts, and infringes First Amendment speech and Fifth Amendment property rights. On September 24, 2018, the court held the case in abeyance pending the Board’s decision in a separate case, Caesars Entertainment Corp. v. Int’l Union of Painters, which similarly involved the NAM as amicus. The Caesars decision, issued on December 17, 2019, followed the NAM's rationale and reinstated the right of an employer to restrict employee use of its email system as long as it does so on a nondiscriminatory basis.


Related Documents:
NAM amicus brief  (October 10, 2017)

 

Franze v. Bimbo Bakeries USA, Inc.   (2nd Circuit)

Defending the independent contractor model

The NAM filed an amicus brief to seek to uphold a district court ruling granting summary judgment for defendant Bimbo Foods Bakeries in a putative class action brought by delivery drivers who allege that the company misclassified them as independent contractors and, as a result, they are entitled to overtime pay and other benefits guaranteed to employees under the Fair Labor Standards Act (FLSA) and related New York state labor laws. A federal district court applied a well-established set of factors to determine whether the drivers were independent contractors or employees including the degree of control exercised by the alleged employer over the drivers, the drivers’ opportunity for profit or loss and their investment in the business, and the degree of skill and independent initiative required to perform the work, among others, ultimately concluding that the drivers were indeed independent contractors. Many manufacturers contract with independent contractors and have a significant interest in the proper interpretation of laws that implicate the distinction between employees and independent contractors. On appeal to the 2nd Circuit, the NAM filed a coalition amicus brief which explains that the independent contractor business model is common across a diverse range of industries and offers significant benefits to businesses and contractors alike.


Related Documents:
NAM brief  (February 10, 2020)

 

General Motors, LLC and Charles Robinson   (NLRB)

When profane outbursts and offensive statements lose the protection of the NLRA

The NAM filed an amicus brief with the National Labor Relations Board (NLRB) urging the Board to reconsider its standards for determining whether an employee's profane outbursts or offensive statements of a racial or sexual nature lose the protection of the National Labor Relations Act (NLRA). The NLRB invited interested amici to file briefs after prior Board decisions in which extremely profane or racially offensive language was judged not to lose the protection of the NLRA were met with frequent criticism. Those decisions were grossly out of touch with the realities of today's workplace and the interestd of employers in ensuring workplaces are free from harassment, discrimination, and bullying. In response to the specific questions posed by the Board, the NAM's brief, filed November 12, 2019, argues that (1) there are instances of employee misconduct that are so egregious that they should automatically result in the forfeit of the NLRA's protection; (2) employers are not required to tolerate insubordination, particularly where racially or sexually charged language is used; (3) the "norms" of the workplace cannot be used as an excuseThe NAM filed an amicus brief with the National Labor Relations Board (NLRB) urging the Board to reconsider its standards for determining whether an employee's profane outbursts or offensive statements of a racial or sexual nature lose the protection of the National Labor Relations Act (NLRA). to protect harassment and incivility; (4) the Board should abandon the standard applied in prior cases to the extent it protects sexual or racially offensive language that would otherwise not be tolerated simply because it occurs in the context of picketing; and (5) the Board should afford great weight to civil rights and antidiscrimination laws, and the requirements they place on employers.


Related Documents:
NAM brief  (November 12, 2019)

 

Nat’l Women’s L. Ctr. v. OMB   (D.C. Circuit)

EEO-1 Component 2 pay data reporting

The NAM filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to reverse the U.S. District Court for the District of Columbia's refusal to delay the deadline for filing the Revised EEO-1 Report “Component 2” pay data. The district court also should not have crafted its own remedy that ignored the significant deficiencies in the record. 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 had previously recognized that changes to EEO-1 require significant time and expense, the record showed questionable public benefits and the data should not be required until EEOC can preserve confidentiality.


Related Documents:
NAM brief  (August 26, 2019)

 

Department of Homeland Security v. Regents of the University of California   (U.S. Supreme Court)

Workforce protections for DACA recipients

The NAM filed an amicus brief to support the Deferred Action for Childhood Arrivals program (DACA) against efforts to end the program and remove 800,000 individuals from the American workforce. Established by the Obama administration in 2012, DACA allows undocumented immigrants who had been brought to the United States as children to apply for protection from deportation and permission to work in the United States. In 2017, the Trump administration announced plans to terminate DACA. In January of 2018, a federal judge in California blocked that termination and the 9th Circuit affirmed. The government petitioned the U.S. Supreme Court for review, which the court granted for its October 2019 term. This issue has a significant impact to NAM members, many of whom face workforce challenges that would be made far worse if 800,000 individuals suddenly lose their work authorization. The NAM joined a multi-industry and multi-employer amicus brief to highlight valuable the contributions that individuals with DACA status provide to manufacturers and to the entire U.S. economy and society.


Related Documents:
NAM Brief  (October 3, 2019)

 

United Nurses & Allied Professionals   (NLRB)

Union dues spent on lobbying

The NAM filed an amicus brief with the National Labor Relations Board arguing against treating lobbying as a core union function and significantly altering the current way employees exercise their rights to object to union dues expenditures for political activities. Mandatory union dues may be used only to support union activities germane to collective bargaining, contract administration and grievance adjustment, and may not be used for political speech that conflicts with the First Amendment rights of the union members who pay dues. This case is important because union dues should not be used to promote political causes to which employee's object. Our brief argued that lobbying is not a core union function, the Supreme Court has already decided the issue and employees should not be compelled to fund these political activities. The NLRB agreed, and on March 1, 2019, issued a decision holding that lobbying activities are not so related to the Union’s representational duties to employees as to justify the compelled financial support of those activities.


Related Documents:
NAM brief  (February 19, 2013)

 

UPMC Presbyterian Shadyside v. NLRB   (3rd Circuit)

Court limits on NLRB's subpoena authority

The NAM filed an amicus brief in the U.S. Court of Appeals for the Third Circuit supporting constitutional protections for employer information. The National Labor Relations Board (NLRB) issued subpoenas requesting information purportedly in connection with an NLRB investigation of unfair labor practices. The district court found that those subpoenas are unprecedented in breadth and unrelated to the underlying charges. Limitations on the NLRB’s authority are important to protect the Constitution’s separation of powers and due process requirements and to protect against abuse of subpoena power. The NAM’s brief argues that the NLRB lacks the authority to compel an employer to produce information because that authority is vested exclusively in Article III courts. The Court later held the case in abeyance so that the parties could finalize the terms of a settlement agreement.


Related Documents:
NAM brief  (April 14, 2015)

 

Wash. Alliance of Tech. Workers v. U.S. Dept. of Homeland Security   (D.D.C.)

Workforce program for STEM graduates

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. A special interest group is seeking 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 will allow the NAM to present the best legal arguments possible in support of the OPT program and STEM OPT. If the plaintiff somehow prevails at this stage of the litigation, the NAM can appeal. On July 1, 2019, the court granted the NAM's intervention.


Related Documents:
NAM reply brief  (January 24, 2020)
NAM Reply  (November 8, 2018)
NAM Motion  (October 18, 2018)

 


OSHA -- active



NAHB v. Acosta   (W.D. Okla.)

Safety incentive programs and post-incident drug testing

The NAM filed an amicus brief supporting safety incentive programs and post-incident drug testing. Since 2016, the NAM has fought the U.S. Occupational Safety and Health Administration's (OSHA) overreaching "injury and illness" rule, which sought to restrict employers' ability to administer drug tests to employees after safety incidents. The rule also limited incentive programs that encourage safe workplaces. The incoming presidential administration in 2017 announced it would reconsider the rule, then OSHA issued guidance to clarify that post-incident drug testing and safety incentive programs are not prohibited. This case is important because a favorable ruling will help preserve pro-safety measures and keep a future administration from easily reinstating the guidance that was so harmful to manufacturers. The NAM’s brief asks a federal judge to invalidate the regulatory provisions underpinning OSHA's 2016 restrictions on post-incident drug testing and safety incentive programs.


Related Documents:
NAM brief  (May 24, 2019)

 


Patents, Copyrights and Trademarks -- active



Amgen v. California Correctional Health Care Services   (Cal. Ct. App.)

Protection of trade secrets

The NAM filed an amicus brief in the California Court of Appeals to protect against disclosure of price change information for pharmaceutical products. California passed a law that requires pharmaceutical companies to disclose contemplated price changes to, among others, state agencies 60 days before implementation of the price change. Several pharmaceutical companies made the disclosures. News outlets then sought the information under a public information request. The companies obtained a preliminary injunction, arguing that the pricing information at issue is a protected trade secret and thus not subject to disclosure until the planned price increase goes into effect. California appealed the injunction. In support of the pharmaceutical industry, the NAM’s amicus brief argued that trade secrets are exempt from disclosure under the California law, and that such an exemption protects the legitimate interests of businesses, administrative agencies, and the public.


Related Documents:
NAM brief  (September 25, 2019)

 

Ass'n for Accessible Medicines v. Becerra   (9th Circuit)

Challenging a California law that makes reverse-payment settlements between brand-name and generic manufacturers presumptively anticompetitive

The NAM filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit seeking to reverse the district court’s refusal to enjoin a California law which makes reverse-payment settlements between brand-name and generic drug manufacturers presumptively anticompetitive and imposes a $20 million minimum penalty on individuals who negotiate such settlements. Reverse-payment settlements are critically important to pharmaceutical manufacturers as they allow generics to enter the market, while fairly protecting patent holders and encouraging expensive and lengthy drug research and development. The law also conflicts with a recent U.S. Supreme Court decision (FTC v. Actavis), which refused to hold reverse-payment settlements presumptively unlawful. A federal district court rejected the Association for Accessible Medicine's suit challenging the law. On appeal to the Ninth Circuit, the NAM's amicus brief, filed February 6, 2020, highlights how the California law undermines federal law and stands as an obstacle to the explicit aims of Congress.


Related Documents:
NAM brief  (February 6, 2020)

 


Preemption -- active



Creagan v. Wal-Mart Transportation   (6th Circuit)

Liability for negligent acts of truckers

The NAM filed an amicus brief to argue that the 6th Circuit should hold that businesses that hire independent trucking companies to transport goods are not liable for the negligent acts of those independent truckers. An individual was injured in a traffic collision involving a trucking company hired by a freight broker. The injured person argued that the broker was negligent in selecting the trucking company because it knew or should have know about the company’s prior regulatory infractions. The freight broker responded that the hiring directly concerns the services a freight broker provides under the Federal Aviation Administration Authorization Act of 1994, and therefore preempts state law, including state common law for negligence. The district court agreed. On appeal to the 6th Circuit, the NAM’s amicus brief explained the careful balance that congress struck in regulating drivers under the Act, and why the plaintiffs’ theory of liability is unworkable in practice.


Related Documents:
NAM brief  (November 7, 2019)

 

Miller v. C.H. Robinson Worldwide   (9th Circuit)

Liability for negligent acts of truckers

The NAM filed an amicus brief to argue that the 9th Circuit should hold that businesses that hire independent trucking companies to transport goods are not liable for the negligent acts of those independent truckers. An individual was injured in a traffic collision involving a trucking company hired by a freight broker. The injured person argued that the broker was negligent in selecting the trucking company because it knew or should have know about the company’s prior regulatory infractions. The freight broker responded that the hiring directly concerns the services a freight broker provides under the Federal Aviation Administration Authorization Act of 1994 (FAAAA), and therefore preempts state law, including state common law for negligence. The district court agreed. On appeal to the 9th Circuit, the NAM’s amicus brief that explained the careful balance that congress struck in regulating drivers under the Act, and why the plaintiffs’ theory of liability is unworkable in practice.


Related Documents:
NAM brief  (November 13, 2019)

 

Swinomish v. BNSF   (9th Circuit)

Challenging restrictions on goods shipped by rail

The NAM filed an amicus brief supporting BNSF and underscoring the importance of the freight rail network for manufacturers that rely on it to efficiently move materials. The plaintiff seeks an unprecedented injunction restricting the type and quantity of goods that can be shipped over an interstate railway that crosses its land, particularly hazardous materials. Such an injunction would disregard the exclusive federal regulatory scheme governing interstate rail transportation, would undermine shippers’ common-carriage rights and would obstruct interstate commerce in economically critical products. The NAM’s brief explained why the court should not allow the obstruction of commerce of lawful products by giving landowners an unprecedented ability to veto the quantity or types of cargo being shipped through interstate commerce.


Related Documents:
NAM brief  (November 21, 2018)

 


Product Liability -- active



2711 Hollywood Beach Condominium Ass'n v. NIBCO, Inc.   (Florida Court of Appeals)

Product liability for building components

The NAM filed an amicus brief in the Florida court of appeals to preserve Florida’s rule limiting tort liability for manufacturers of building products and materials. The developer of a residential condominium building in Florida improperly combined metal and PVC pipes in the building’s sprinkler system, causing the system to leak. The condo association, which purchased the building from the developer, then sued the developer and the pipe manufacturers under tort and contract theories of liability. The condo association did not claim that the pipes themselves were defective; rather, it asserted that the pipe manufacturers had a duty to warn about the alleged incompatibility of the pipes being installed together. A trial court ruled that Florida’s “economic loss rule” limits the condo association’s claims against the pipe manufacturers to contract and warranty claims and bars tort-based claims because the pipes did not injure people or other property. A broader rule would expose manufacturers to significantly more potential liability and could force them to raise prices or seek expensive liability insurance. On appeal, the NAM filed an amicus brief in support of the pipe manufacturers to preserve Florida’s economic loss rule and contain the potential for open-ended tort liability for the misuse of building products and materials.


Related Documents:
NAM brief  (June 7, 2019)

 

Ford Motor Co. v. Bandemer   (U.S. Supreme Court)

Scope of personal jurisdiction over out of state defendant

The NAM filed an amicus brief to support Ford Motor Co.’s petition for certiorari to the U.S. Supreme Court to clarify the circumstances under which an out-of-state defendant can be sued in state court. A plaintiff sued Ford in Minnesota state court for injuries he sustained while driving in Minnesota. The plaintiff alleged design defect claims and failure to warn claims. Ford defended against jurisdiction in Minnesota state court because all of the alleged wrongful conduct occurred in Michigan, where the car was designed. A Minnesota trial court and the Minnesota Supreme Court affirmed personal jurisdiction over Ford, concluding that the lawsuit related to Ford’s in-state activity in Minnesota. This case is important for manufacturers because a broad interpretation of personal jurisdiction—like that by the Minnesota courts here—would subject manufacturers to litigation in jurisdictions throughout the country. The NAM’s amicus brief explained why such a broad conception of personal jurisdiction is inconsistent with U.S. Supreme Court precedent and why it should be reversed. On January 17, 2020, the Court granted review.


Related Documents:
NAM brief  (October 21, 2019)

 

City of New York v. BP   (2nd Circuit)

Opposing misguided public nuisance lawsuits

The NAM filed an amicus brief in the U.S. Court of Appeals for the Second Circuit to oppose misguided efforts to impose “public nuisance” liability on energy manufacturers. The city of New York sued several energy companies to seek damages for local impacts of climate change, arguing that the defendants’ sale of fossil fuels is a public nuisance that entitles the city to financial compensation. This theory of liability poses a grave risk for manufacturers because it would impose liability on manufacturers despite a plaintiff’s inability to prove the manufacturer actually caused the plaintiff’s injuries. A federal district court dismissed the lawsuit. On appeal to the Second Circuit, the NAM’s amicus brief explains how Supreme Court precedent forecloses such lawsuits by recognizing the federal legislature as the appropriate branch of government to set national energy policy, including addressing climate change. Our brief also highlights the extensive technological innovations that manufacturers have already deployed to reduce carbon emissions, and which they will continue to pursue to address climate change and other environmental challenges.


Related Documents:
NAM brief  (February 14, 2019)

 

City of Oakland v. BP   (9th Circuit)

Public nuisance liability for climate change

The NAM filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit to oppose misguided efforts to impose “public nuisance” liability on energy manufacturers. The city of Oakland, California, sued several energy companies to seek damages for local impacts of climate change, arguing that the defendants’ sale of fossil fuels is a public nuisance that entitles the city to financial compensation. This theory of liability poses a grave risk for manufacturers because it would impose liability on manufacturers despite a plaintiff’s inability to prove the manufacturer actually caused the plaintiff’s injuries. A federal district court dismissed the lawsuit. On appeal to the Ninth Circuit, the NAM’s amicus brief explains how Supreme Court precedent forecloses such lawsuits by recognizing the federal legislature as the appropriate branch of government to set national energy policy, including addressing climate change. Our brief also highlights the extensive technological innovations that manufacturers have already deployed to reduce carbon emissions, and which they will continue to pursue to address climate change and other environmental challenges.


Related Documents:
NAM brief  (May 17, 2019)

 

City of Pomona v. SQM North America Corp.   (9th Circuit)

Unlimited historical liability

The NAM filed an amicus brief in the U.S. Court of Appeals for the 9th Circuit addressing the “risk-benefit” test for strict products liability as applied to historically used products. The City of Pomona, California, claims that a fertilizer product sold more than 70 years ago contained small amounts of naturally occurring perchlorate that contaminated the city’s groundwater supply. The resolution of this question has the potential to impact manufacturers because it involves the proper legal standard for strict product liability for historically used products. The NAM’s brief argues that a defendant cannot be liable for risks based on science and technology not available at the time a product was manufactured. On February 6, 2020, in a disappointing ruling, the Ninth Circuit held that jurors are allowed to consider risks that were not, and could not have been, known to the manufacturer at the time of manufacture. On March 2, 2020, after SQM filed a petition for rehearing en banc, the NAM filed an amicus brief in support of rehearing.


Related Documents:
NAM brief  (March 2, 2020)
NAM brief  (December 21, 2018)

 

Coffman et al. v. Armstrong Int'l, Inc., et al.   (Tennessee Supreme Court)

Urging the Tennessee Supreme Court to adopt a stream of commerce bright line rule for asbestos failure to warn claims

The NAM filed an amicus brief in the Tennessee Supreme Court supporting an appeal of an appellate court decision holding that equipment manufacturers may owe a duty to warn end users about alleged hazards in asbestos-containing external insulation or replacement gaskets and packing made or sold by third parties and affixed to the equipment post-sale. Some courts have held that manufacturers are only liable for products they themselves put in the stream of commerce. Other courts, including the U.S. Supreme Court in a 2019 maritime case, have adopted a foreseeability-based test that focuses on whether the later incorporation of an asbestos product was “required” for the pump, valve, etc. to work. Here, the Tennessee appellate court, relying on a 2008 asbestos take-home exposure case, applied a foreseeability-based test that is even more permissive than the U.S. Supreme Court standard for maritime cases. This case is important for all manufacturers whose products are used with potentially hazardous products sold by third parties. The NAM filed a coalition brief arguing that traditional tort principles do not support liability for harms caused by third parties and that such a duty would be costly and unpredictable, undermine consumer safety, increase non-asbestos tort cases, and fail to prevent future harm.


Related Documents:
NAM brief  (April 13, 2020)

 

Ford Motor Co. v. Montana Eighth District Court   (U.S. Supreme Court)

Scope of personal jurisdiction over out-of-state defendants

The NAM filed an amicus brief to support Ford Motor Co.’s petition for certiorari to the U.S. Supreme Court to clarify the circumstances under which an out-of-state defendant can be sued in state court. A plaintiff sued Ford in Montana state court for injuries he sustained while driving in Montana. The plaintiff alleged design defect claims and failure to warn claims. Ford defended against jurisdiction in Montana state court because all of the alleged wrongful conduct occurred in Michigan, where the car was designed. A Montana trial court and the Montana Supreme Court affirmed personal jurisdiction over Ford, concluding that the lawsuit related to Ford’s in-state activity in Minnesota. This case is important for manufacturers because a broad interpretation of personal jurisdiction—like that by the Montana courts here—would subject manufacturers to litigation in jurisdictions throughout the country. The NAM’s amicus brief explained why such a broad conception of personal jurisdiction is inconsistent with U.S. Supreme Court precedent and why it should be reversed. On January 17, 2020, the Court granted review. On March 6, 2020, the NAM filed an amicus brief on the merits.


Related Documents:
NAM brief on Merits  (March 6, 2020)
NAM brief  (October 19, 2019)

 

McGinnis v. C.R. Bard, Inc.   (N.J. Super. Ct. App. Div.)

Allowing evidence of conformance with FDA’s safety standards

The NAM filed an amicus brief supporting an appeal of a trial court’s ruling that evidence of a U.S. Food and Drug Administration (FDA) medical device 510(k) approval process, which determined a device is safe and effective, may be excluded from evidence in a personal injury lawsuit. After the trial court excluded the evidence, including on the question of punitive damages for egregious conduct, the jury awarded large compensatory and punitive damages. This case is important because manufacturers could be adversely impacted if courts reach liability decisions based on an improper understanding of the principles of safety and effectiveness that underlie each 510(k) clearance. The NAM’s brief argued that Congress and the FDA established the 510(k) process to ensure the safety of medical devices and that evidence of a manufacturer’s conformance with the FDA’s safety standards is essential to a fair determination of product defects and punitive damages.


Related Documents:
NAM brief  (May 23, 2019)

 

Pneumo Abex LLC v. Jones   (Illinois Supreme Court)

Manufacturer civil conspiracy liability

The NAM filed an amicus brief with the Illinois Supreme Court in an asbestos case appeal to explain that civil conspiracy claims should not be used to impose liability on innocent manufacturers for the actions of others when the manufacturer did not commit an unlawful act. A lower court incorrectly ruled that plaintiffs presented sufficient evidence from which a reasonable jury could find an underlying agreement to hide product hazards. This litigation is important for manufacturers because entire industries could be held liable for a plaintiff’s injuries, without sufficient evidence. The NAM’s brief argues that the plaintiffs’ claim is an attempt to expand civil conspiracy without proof of an agreement to commit an unlawful act, courts have previously rejected these attempts, and if this ruling is allowed to stand, it will introduce an unprecedented expansion of litigation in Illinois.


Related Documents:
NAM brief  (February 1, 2019)

 

In re: Genentech, Inc. Herceptin (Trastuzumab) Marketing and Sales Practices Litigation   (10th Circuit)

Preemption of state law claims for biologic medication regulated by the FDA

The NAM filed an amicus brief in the 10th Circuit in support of a drug manufacturer in an appeal that implicates how biologic medications are sold and dosed. The defendant manufacturer, Genentech, is a biotechnology company dedicated to developing medicines for people with serious and life-threatening diseases. One of those medications is Herceptin, which treats breast cancer. Herceptin is approved as a biologic drug, which is subject to a similar FDA approval process and labeling requirements as other prescription drugs. A series of lawsuits filed under Oklahoma and other state laws by cancer centers allege that Herceptin’s labeling misrepresents the amount of Herceptin in a vial. The FDA, however, has approved the quantity indicated on the label. Federal regulations and the FDA’s approval permits a variance between the amount stated on the label and the contents of the vial. The district court granted the defendant’s motion for summary judgment on preemption grounds, finding the state law claims were preempted by the federal Food and Drug Act. On appeal to the 10th Circuit, the NAM filed an amicus brief that explains how the FDA utilizes its expert judgment to specifically approve and regulate the sale and dispensing of biologic drugs, and how allowing states to impose conflicting requirements would harm public health and increase the costs of treatment.


Related Documents:
NAM brief  (October 11, 2019)

 


Punitive Damages -- active



McKiver v. Murphy-Brown, LLC   (4th Circuit)

Private nuisance lawsuits for food production operations

The NAM filed an amicus brief in the U.S. Court of Appeals for the 4th Circuit to overturn a district court ruling that imposed punitive damages on a pork production facility in North Carolina under a "private nuisance" theory of liability. The case began with a lawsuit by property owners who reside near the facility in North Carolina, alleging that aspects of the facility’s operations are a private nuisance under tort common law. A federal district court ruled for the plaintiffs and awarded compensatory damages and millions of dollars in additional punitive damages. On appeal to the 4th Circuit, the NAM filed an amicus brief that explained why nuisance liability and punitive damages are inappropriate when companies comply with applicable environmental regulations, and further explained North Carolina’s extensive statutory and regulatory control over pork production facilities in North Carolina. This case has important implications for food producers and all manufacturers because the legal standard for what constitutes a “nuisance” under tort law will vary from jury-to-jury, risking the imposition of significant liability—including punitive damages—for manufacturers engaged in legal and thoroughly-regulated conduct.


Related Documents:
NAM brief  (March 6, 2019)

 

Toyota v. Reavis   (Tex. Ct. App.)

Excessive damages following admission of improper "rebuttal" evidence at trial

The NAM filed an amicus brief seeking to reverse a $242 million verdict in a product liability lawsuit against Toyota that resulted from unfair trial procedures. During trial, the court failed to apply established restrictions that traditionally limit admission of “other-incident evidence,” thus allowing the jury to decide whether front seats in the vehicle involved in the underlying accident were defective based on inflammatory evidence including hearsay TV videos involving different alleged defects, in different vehicles, causing different injuries. In addition, the case implicates the Texas Legislature’s decision to afford a presumption of nonliability to defendants whose product designs comply with federally mandated safety standards, as the front seats in question undisputedly complied with federal standards. The MCLA's brief argued that Texas law expressly guards against admission of other-incident evidence, and it affords a meaningful presumption of non-liability for manufacturers who comply with federal safety standards.


Related Documents:
NAM brief  (February 28, 2020)

 


RICO Act -- active



Takeda Pharm. Co. Ltd, et al. v. Painters & Allied Trades District Council 82 Health Care Fund, et al.   (U.S. Supreme Court)

Abusive civil RICO suits must be reined in

The NAM filed an amicus brief in support of a petition for certiorari to review a Ninth Circuit ruling that threatens to expand the use of civil RICO claims.

The NAM's brief argues that the pharmaceutical industry, and manufacturing in general, should not be subjected to abusive litigation that hampers their ability to innovate and grow and that a sound and fair legal system requires remedies to be focused on persons with direct, actual harms, particularly the RICO statute because of its powerful and potentially crippling treble damages remedy.


Related Documents:
NAM brief  (March 27, 2020)

 


Taxation and State Taxation -- active



Altera Corp. et al. v. Commissioner of Internal Revenue   (U.S. Supreme Court)

IRS rule change threatens double taxation on cross border transactions

The NAM filed an amicus brief in support of Altera Corporations' petition for certiorari to reverse the Ninth Circuit and uphold the Internal Revenue Service’s (IRS) “arm’s-length transaction standard.” The Commissioner of the IRS departed from this longstanding approach in a policy shift, thus destroying the established precedent and reducing its effectiveness. Under the arm’s-length standard, a transaction was judged by looking at how the parties priced it as if they were two independent entities, not parts of the same group of related entities. The Ninth Circuit held that the Commissioner did not exceed his rule-making authority and that his rule was entitled to deference. On March 6, 2020, the NAM filed a coalition amicus brief in support of Altera's writ petition arguing that the decision below raises unsettling questions about the tax treatment of countless international transactions.


Related Documents:
NAM brief  (March 6, 2020)

 

Ford Motor Co. v. United States   (U.S. Supreme Court)

Ford seeks to take van tariff engineering case to the U.S. Supreme Court

The NAM filed an amicus brief in support of Ford's petition for certiorari to reverse a decision that will generate uncertainty for tariff determinations for imported products, including imported automobiles. The case arose from Ford Motor Co.’s imports of the Transit Connect van. After importing the vans as passenger vehicles, Ford reconfigured the vans to allow their use as cargo vans. The U.S. Customs and Border protection applied a 25% tariff on the vehicles, concluding that the vans are properly classified as trucks subject to a 25% tariff rather than a passenger vehicle subject to a much lower 2.5% tariff. Ford challenged the tariff determination in the U.S. Court of International Trade and prevailed. On appeal, however, the Federal Circuit reversed, concluding that the ultimate intended use of the vehicles as cargo vans supported the higher tariff rate. After also filing at the federal circuit en banc level, the NAM filed an amicus brief in support to identify the uncertainty that manufacturers will face if tariffs are imposed based on possible subsequent reconfigurations of goods rather than their actual condition as imported.


Related Documents:
NAM brief  (March 19, 2020)

 

National Association of Manufacturers v. United States Department of the Treasury   (U.S. Court of International Trade)

Challenging final duty drawback rule

The NAM sued to challenge a federal regulation that strips manufacturers of a congressionally-mandated tax incentive to increase domestic manufacturing and exports. The regulation at issue involves “duty drawback”—the refund of taxes, duties, or fees paid on imported goods when the same or similar goods are exported. By way of example, drawback would allow a distilled spirits company that exports vodka from the United States to claim a refund on taxes and duties paid on the same quantity of imported vodka. These incentives encourage domestic production and have been used by the wine industry since 2004 to increase exports. Despite a clear statutory mandate from congress in 2016 legislation, a recent federal rule disallows certain categories of drawback claims for distilled spirits, wine, beer, and other products. The NAM's lawsuit seeks to invalidate the rule and require a replacement rule that reflects congress’ clear intent in allowing such claims.


Related Documents:
NAM reply brief  (September 23, 2019)
NAM opening brief  (June 24, 2019)
NAM Complaint  (April 17, 2019)

 

United States v. Microsoft Corp.   (W.D. Wash.)

IRS tax advice

The NAM filed an amicus brief in the U.S. District Court for the Western District of Washington supporting protection of confidential communications between taxpayers and their non-attorney tax advisors. Federal law under the “tax Privilege” generally makes such communications confidential, but an exception exists for communications relating to “the promotion of the direct or indirect participation” in a “tax shelter.” While a tax shelter is broadly defined, “promotion” is not, and the government wants to remove routine tax advice and common tax planning from the protections of the tax privilege, which would make it more difficult for manufacturers access to important tax advice. The NAM filed an amicus brief arguing that Congress did not intend such a broad interpretation, tax policy favors the free flow of information between taxpayers and their advisors, and routine advice should not make a tax advisor a promoter of a tax shelter. The court refused to consider NAM's or any other amici briefs and the case was closed in 2017.


Related Documents:
NAM amicus brief  (November 11, 2016)

 


White Papers -- active



When the First Amendment Meets Chevron Deference: Free Speech and the Administrative State   (White Paper)

MCLA Constitutional Law Series

This white paper explains how regulatory actions can impinge on core First Amendment rights and identifies fundamental principles that should inform agency action and judicial review of such action to ensure that agencies properly recognize the First Amendment as a limitation on government power.


Related Documents:
White Paper  (January 1, 2019)

 

Government Investigations and the First Amendment   (White Paper)

MCLA Constitutional Law Series

The First Amendment prohibits public officials from wielding the coercive power of the government to silence private organizations—including corporations—with differing or opposing viewpoints on controversial issues of public concern. Corporations, either alone or through their participation in trade associations, and in conjunction with other third parties, make substantial and important contributions to issues of public debate contributing their industry knowledge, experience and research to enhance understanding of important issues of public concern.

This white paper argues that in order to safeguard these rights, Government officials and courts must cautiously evaluate motives for subpoenas and investigative demands that target activities relating to legitimate participation in the public policy process and must guard against the use of these powers to silence or censure particular points of view.


Related Documents:
White Paper  (August 16, 2019)

 

The First Amendment and Mandatory Commercial Disclosures   (White Paper)

MCLA Constitutional Law Series

This white paper explores the First Amendment implications of mandatory product disclosures and transparency initiatives, when such disclosures compel manufacturers to disparage their own products, or to in-effect take sides in controversial public policy debates they might otherwise avoid. Such mandates raise important free speech concerns under the First Amendment, and as a result courts should apply strict scrutiny when reviewing them.


Related Documents:
White Paper  (August 16, 2019)