The Center News: September 2014

spacer
A Publication of the National Association of Manufacturers
spacer
 
spacer spacer
theCenter for Legal Action
September 17, 2014
Center Perspectives
By Linda Kelly, Senior Vice President and General Counsel

Fall is in the air in our nation’s capital and that means the beginning of a new U.S. Supreme Court term is near. When the court convenes on October 6 for its October 2014 Term, a number of important cases for manufacturers are already on the docket. The Manufacturers’ Center for Legal Action (MCLA) has weighed in with amicus briefs in several of these cases and will be closely monitoring the action.

Hitting broadly on the issue of regulatory overreach, Perez v. Mortgage Bankers concerns the authority of regulatory agencies to revise a definitive interpretation of a regulation without going through the regulatory formalities of notice and comment. The outcome of this case has the potential to greatly expand or limit the authority of regulatory agencies.

In the labor arena, the court will consider Integrity Staffing Solutions v. Busk. This case involves the Department of Labor’s attempt to expand the definition of what is compensable time under the Fair Labor Standards Act to include time spent passing through security checks.  The court will also hear M&G Polymers v. Tackett, which will seek to resolve a split among circuit courts on whether collective bargaining agreements that are silent on the issue of lifetime vesting of benefits should be interpreted in favor of lifetime vesting.

Touching upon corporate conduct, the court will consider Yates v. United States, which will address the contours of what constitutes criminal destruction of records under Sarbanes Oxley.  Not yet set for argument, but also on the docket, is Kellogg, Brown & Root v. U.S. ex Rel. Carter, which addresses the broad application of the Wartime Statute of Limitations Act to extend statutes of limitations for civil claims under the False Claims Act and other statutes. The outcome of this case could have far-reaching implications for manufacturers that do business with the government.

Finally, the MCLA has weighed in to support grants of certiorari in two cases. Lake Eugenie Land & Dev., Inc. v. BP Exploration & Prod. Inc. concerns the administration of the business settlement agreement in the Deepwater Horizon case. BP has asked the Supreme Court to review the Fifth Circuit’s refusal to require that applicants for compensation submit evidence that their damages were actually caused by the oil spill. And Freeman v. Grain Processing Corp. concerns a ruling by the Iowa Supreme Court that the Clean Air Act does not preempt state law based tort claims relating to air emissions from permitted plants.

As always, there is much at stake for manufacturers in the courts, and the MCLA will continue to engage at all levels to oppose regulatory overreach and ensure a level playing field. The September edition of Member Focus has more about our Supreme Court activities.

MCLA in the Courts
Civil Procedure

Appeal Questions Lawsuit That Fails to Show Harm: The NAM filed a brief supporting an appeal to the Supreme Court of an antitrust case that a lower court allowed to proceed without evidence that the alleged violation caused the plaintiffs any harm. The NAM supports summary judgment in such cases to eliminate unsubstantiated claims from the courts.

More Information:
Dean Foods Co. v. Food Lion, LLC
(U.S. Supreme Court)
 
 
 
Conflict Minerals

Manufacturers Seek to Preserve Victory in Conflict Minerals Case: Although the NAM won a significant victory when the D.C. Circuit struck down the mandate that companies declare whether certain minerals in their products are “conflict free,” the Securities and Exchange Commission and Amnesty International appealed, arguing that the court’s recent decision in the American Meat Institute case involving country-of-origin labeling changed the law. We filed a brief opposing further litigation of this issue on the grounds that compelled speech about conflict minerals remains unconstitutional..

More Information:
NAM v. SEC
(U.S. Court of Appeals for the D.C Circuit)
 
 
 
Corporate Conduct

NAM Files Brief Seeking to Rein in Abuse of False Claims Act: The NAM filed a brief in the Supreme Court arguing that the Wartime Statute of Limitations Act, which freezes statutes of limitations in wartime, was intended to apply only to criminal matters and not civil ones. In recent years, the Department of Justice has sought to expand the application of that law beyond the criminal context, and the plaintiffs’ bar has jumped in to encourage its use in civil matters.

More Information:
KBR v. US ex rel. Carter
(U.S. Supreme Court)
 
 
 
Environment

NAM Challenging Boiler MACT Rules: The NAM filed a brief challenging the Environmental Protection Agency’s (EPA) new regulation of boiler emissions. Our arguments identify five major flaws in the rule: an energy assessment requirement; limitations that have not been achieved in practice; limits set without accounting for malfunctions; improper disregard for a work practice for organic pollutants; and failure to justify its changed policy on hydrogen chloride.

More Information:
U.S. Sugar Corp. v. EPA
(U.S. Court of Appeals for the D.C Circuit)
 
 
 

Manufacturers Join Industry Allies in Suit Over NHSM Rule: The NAM and other industry groups intervened in a challenge to various aspects of EPA’s Non-Hazardous Secondary Materials (NHSM) rule, which regulates materials used in combustion in boilers and incinerators. In April, the NAM challenged provisions of the rule, but this brief supports the EPA in a challenge by environmental groups that would undermine reuse of recycled materials as fuel products.

More Information:
Solvay USA Inc. v. EPA
(U.S. Court of Appeals for the D.C Circuit)
 
 
 

NAM Fights Back Against Boiler Rule for Area Sources: In our brief challenging the EPA’s Boiler GACT rule for area sources of hazardous air emissions, we argue that the agency’s energy assessment requirement is beyond the scope of its authority and that it unlawfully failed to account for malfunctions when setting the rule's emission standards.

More Information:

American Chemistry Council v. EPA
(U.S. Court of Appeals for the D.C Circuit)

 
 
 
Insurance Fraud Liability

NAM Opposes Unreasonable Standard in Insurance Cases: The NAM asked the California Supreme Court to hear a case that could greatly expand a manufacturer’s exposure to liability under the Insurance Fraud Prevention Act (IFPA). A lower court lowered the bar for what would be considered inappropriate and illegal behavior, effectively shifted the burden to the manufacturer to disprove causation, and increased a manufacturers’ risk of being held liable even though it has no involvement in submitting insurance claims.

More Information:
California ex rel. Wilson v. Superior Court
(California Supreme Court)
 
 
 
Labor Law

Appeals Court Opens Door for Proliferation of Lawsuits: The NAM asked the Supreme Court hear Thyssenkrupp Waupaca, Inc., v. Ryan DeKeyser et al. after a lower court’s ruling took the determination of health and safety out of the hands of the legislature and put it in the hands of judges. The lower court’s ruling creates instability and unpredictability, increases costs on business, and ultimately harms the employees.

More Information:
Thyssenkrupp Waupaca, Inc. v. DeKeyser
(U.S. Supreme Court)
 
 
 
Settlement Agreements

Deepwater Horizon Settlement Raises Constitutional Issue: The NAM urged the Supreme Court to hear an appeal by BP arising from a settlement agreement relating to the oil spill from the Deepwater Horizon. The appeal raises a fundamental question whether federal courts have jurisdiction over a dispute in which many of the parties claiming benefits were not directly or indirectly harmed by the spill.

More Information:
BP Exploration & Prod. Inc. v.
Lake Eugenie Land & Dev., Inc.

(U.S. Supreme Court)
 
 
 
Trademarks

Manufacturers Push Back Against Australian Law Regulating Advertising: The NAM and seven other business organizations filed a letter with a World Trade Organization (WTO) adjudicative panel in support of challenges by various countries to Australia's Tobacco Plain Packaging Act of 2011, which restricts the use of trademarks in marketing tobacco products in that country. We argued that such restrictions would have serious consequences for the export and competition strategies for producers of a wide variety of products.

More Information:
Australia – Certain Measures
Concerning Trademarks

(World Trade Organization)
 
 
Other News

Alabama’s High Court Upholds Misguided Decision: The Alabama Supreme Court upheld its earlier decision permitting a plaintiff to sue a brand-name pharmaceutical manufacturer for injuries arising from the use of a generic drug. As The Wall Street Journal warns, “Watch the trial lawyers swoop in now.”

 
Connect with the Manufacturers
 
spacer Questions or comments?
spacer
spacer
Contact Senior Vice President & General Counsel Linda Kelly at lkelly@nam.org.
spacer
spacer
spacer
 

Related Tags: