Manufacturers In The Courts: September 2011

A Publication of the National Association of Manufacturers
September 2011

The NAM's suit against the National Labor Relations Board is a key development in this month's report. After we challenged the Board's legal authority to require employers to post notices about unionization rights, other business groups did too. We again led the charge last week by asking the court to expedite the case and prevent the rule from becoming effective on November 14. Read on for details on this and other cases in which significant action has occurred in September.

Decided Cases

Product Liability

Victory in medical monitoring case . People who are accidentally exposed to hazardous materials, but who have no symptoms of injury, sometimes sue for money to pay doctors to monitor their health into the future. One such case involved a doctor's conclusion that monitoring should be provided even if the risk of injury were less than one in a million. Last year, the NAM joined other groups in an amicus brief arguing that this risk is too speculative to impose hundreds of millions of dollars in medical monitoring requirements. A federal appeals court has agreed, finding that the doctor's conclusion insufficient and the risk uncertain and bordering on legal insignificance. Hirsch v. CSX Transportation, Inc. (6th Cir.).

Pending Cases


Ozone regulation still alive, despite recent victory. While it is true that EPA is backing off its plan to further tighten the ozone National Ambient Air Quality Standard (NAAQS), the existing regulations are still the subject of an NAM suit challenging their legality. The regulations, adopted in 2008, are the subject of litigation that has been on hold for 2½ years, and EPA asked the appeals court in September to resume briefing, as we had asked nearly 2 years ago. We anticipate that the court will agree, and that the legality of the current regulation will be fully briefed by mid-2012. An environmental group recently sued EPA, alleging the agency has not moved quickly enough to implement the current .075 parts-per-million standard. Mississippi v. EPA (D.C. Cir.).

New evidence supports NAM's greenhouse gas challenge. Our litigation against EPA over 4 regulations that together act to regulate greenhouse gases found significant support in a report issued by the EPA's Inspector General on September 26. The report found in part that EPA did not make an independent assessment of key scientific evidence that it relied on in issuing its endangerment finding. We have notified the court that the report is directly relevant to EPA's claim that it exercised independent judgment when reviewing the scientific evidence. Our final brief is due Oct. 17. NAM v. EPA (D.C. Cir.).

NAM fights new local restrictions on solid waste. A county ballot initiative in California restricts the volume of solid waste that can be hauled in from other counties. Such flow-control limits have been struck down under the Commerce Clause in other cases, but the unique intrastate question in this case presents a new wrinkle. The NAM and other groups filed an amicus brief September 6 urging the court to recognize that city and county regulations like this interfere with interstate commerce and could be used by thousands of jurisdictions against many other goods and services. Sierra Club v. County of Solano (Cal. Ct. App.).

International Disputes

Injunction against Ecuadorian court ruling is lifted . Ecuadorian natives and their American lawyers and consultants have been pressing for years to win billions of dollars for pollution from oil drilling operations in Ecuador many years ago. The issue is whether an American court may prevent alleged fraud by barring enforcement in other countries of an $18 billion judgment from an Ecuador court. The NAM filed an amicus brief arguing that the preliminary injunction issued by the trial judge is entirely consistent with principles of international comity and should be affirmed. On September 19, the appeals court vacated the trial court's injunction, put those proceedings on hold, and received assurances from the plaintiffs that they would not seek to enforce the Ecuadoran judgment while it is being appealed in Ecuador. The Second Circuit said that it would issue an opinion addressing Chevron's appeal "in due course." Chevron Corp. v. Naranjo (2d Cir.).

Labor Law

NAM challenges unauthorized NLRB union notice rule. Early in September, the NAM filed suit against the National Labor Relations Board's (NLRB) new rule requiring that employers subject to the National Labor Relations Act (NLRA) post a notice about employees' rights. These rights include organizing into unions, bargaining collectively, discussing wages, benefits and working conditions, jointly complaining, striking and picketing. The rule creates a new unfair labor practice-failing to post the required notice-and would allow the NLRB to assume that an employer has an anti-union motive by failing to post the notices, which in turn could result in more complaints being issued against employers and a broader range of penalties under other NLRB requirements. It also allows the Board to waive the statute of limitations for bringing all other unfair labor practice charges if an employer does not post the notices. The rule also requires foreign language posting if 20 percent of the workforce speaks another language. Posting would be mandatory for almost all private employers by November 14, 2011. The NAM contends that the posting requirement is beyond the NLRB's authority under the NLRA and is asking the court prohibit the Board from implementing, enforcing and applying the rule. On September 28, we moved for a preliminary injunction and an expedited hearing to resolve the case prior to its effective date. NAM v. NLRB (D.D.C.).

Product Liability

Duty to warn about hazards of another manufacturer's products. A respirator manufacturer was sued by a party alleging that the company had a duty to warn individuals who clean or otherwise handle the equipment about asbestos hazards from products made, sold or supplied by third parties. The trial court rejected the claim, and the NAM recently filed an amicus brief in this appeal supporting that result. Our brief explained the adverse impact that expanding liability rules would have on companies already being sued as part of the wave of asbestos litigation. Macias v. Saberhagen Holdings, Inc. (Wash.).

New Supreme Court Term Opens

The first Monday in October rings in the new term of the Supreme Court. While there are significant social and political issues making the headlines, there are also several issues affecting manufacturers waiting to be decided. Click here for a few that we have selected as having the greatest potential impact.

Quentin Riegel
Vice President, Litigation & Deputy General Counsel
(202) 637-3058 •

National Association of Manufacturers
1331 Pennsylvania Avenue, NW Suite 600
Washington, DC 20004-1790

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