The Center News: January 2015

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives

By Linda Kelly, Senior Vice President and General Counsel

Happy New Year! 2015 will be an active and important year on the legal front for manufacturers. The Manufacturers’ Center for Legal Action (MCLA) started the year off with a bang by launching a suit challenging the National Labor Relation Board’s new ambush elections rule on statutory and constitutional grounds.

We are expecting a number of additional significant regulatory actions to come down the pike this year that may require legal action to protect the interests of manufacturers.  From the Fair Play and Safe Workplaces Executive Order, to OSHA’s Injury and Illness Recordkeeping Rule, to new greenhouse gas regulations, ozone regulations, an expanded definition of Waters of the US, and new SEC pay ratio reporting requirements, the regulatory outlook for manufacturers continues to be challenging across all sectors.
Meanwhile, a case pending in the U.S. Supreme Court and likely to be decided in the next few months, will—more than any other recently before the court—have a far-reaching effect on the extent of federal agency authority. Perez v. Mortgage Bankers, in which the MCLA filed a brief, will determine when a federal agency action that alters the interpretation of an existing regulation should be subject to notice-and-comment rulemaking.

The stakes are high for manufacturers, and we need your support and engagement. If you wish to help us chart our course to address this difficult environment, I encourage you to contribute to our efforts and join one of our MCLA Legal Issue Advisory Groups.  These six groups assist us in evaluating our priority legal engagements in the six areas of focus for the MCLA: Labor & Employment; Environment & Energy; Corporate Governance & Shareholder Activism; International; Intellectual Property; and Product and Civil Liability.  Participation in the Legal Issue Advisory Groups is open to in-house counsel for manufacturing members of the NAM that provide financial support to the work of the MCLA. For more information, please contact me.

MCLA in the Courts

Civil Liability

Manufacturers Challenge Unfair Claims Process in BP Spill: The NAM and other business groups filed a brief supporting a challenge to the impartiality of the administrator of business claims arising from the Deepwater Horizon oil spill in the Gulf of Mexico.
More Information: In re Deepwater Horizon (U.S. Court of Appeals for the 5th Circuit)

Class Actions

NAM Asks High Court to Review Misguided Class Certification: The NAM asked the Supreme Court to review a decision by the 6th Circuit Court of Appeals certifying a class. Our brief argues that the appeals court improperly relaxed the requirements for class certification, breaking recent Supreme Court precedent and deepening entrenched divisions in lower court authority over the requirements for class certification.
More Information: Carpenter Co. v. ACE Foam, Inc. (U.S. Supreme Court)

Conflict Minerals

NAM Moves Forward in Conflict Minerals Case: The NAM filed our main brief in a matter seeking to undo our partial victory on compelled speech in the conflict minerals rule. The D.C. Circuit is reviewing its earlier decision in this case in light of the full court's ruling in a case involving country-of-origin labeling rules for meat products, and we continue to argue that the conflict minerals rule exceeds constitutional limits.
More Information: NAM v. SEC (U.S. Court of Appeals for the D.C. Circuit)


Boiler MACT Litigation Proceeds: The NAM and 24 other organizations filed a joint brief in support of the Environmental Protection Agency's (EPA) defense of its Boiler MACT rules against three issues raised by environmental groups.
More Information: U.S. Sugar Corp. v. EPA (U.S. Court of Appeals for the D.C. Circuit)
Manufacturers Push Back Against Greenhouse Gas Regulations for Existing Power Plants: The NAM joined our business community allies in supporting Murray Energy's challenge to the EPA's proposed rule regulating greenhouse gas emissions from existing power plants. We filed a similar brief in a suit brought by West Virginia and other states.
More Information: Murray Energy Corp. v. EPA  (U.S. Court of Appeals for the D.C. Circuit)
NAM Weighs in on Boiler GACT Rules: The NAM previously filed a brief challenging EPA's Boiler GACT rules, but is also intervening to support some EPA decisions being challenged by environmental groups.
More Information: American Chemistry Council v. EPA (U.S. Court of Appeals for the D.C. Circuit).
NAM Seeks to Prevent Local Overreach on Clean Air Issues: The NAM urged the Texas Supreme Court to overturn a lower court ruling that allows the City of Houston to run its own clean air enforcement office. The Houston ordinance is part of a growing trend by cities to go beyond state environmental restrictions.
More Information: BCCA Appeal Group, Inc. v. City of Houston (Texas Supreme Court)

Expert Testimony

NAM Weighs in on D.C. Expert Testimony Case: The NAM and three other groups filed a brief asking the District of Columbia to adopt the Daubert standard for determining the admissibility of expert testimony rather than the Frye test. Adopting the Daubert standard would position D.C. courts to be better gatekeepers against unreliable expert testimony and level the playing field for D.C.-based businesses, which are at a competitive disadvantage by being subject to the Frye standard.
More Information: Motorola, Inc. v. Murray (D.C. Court of Appeals)

Labor Law

NAM Challenges NLRB Ambush Elections Rule: On January 5, the NAM and a coalition of business groups filed a complaint challenging the NLRB's ambush elections rule on constitutional and statutory grounds. The rule would shorten the time frame before union organizing elections and would eliminate the rights of employers to challenge voter eligibility prior to the election. The rule also includes a troubling privacy element as it requires employers to hand over employee personal contact information for organizing purposes.
More Information: Chamber of Commerce v. NLRB (U.S. District Court for the District of Columbia)
NAM Asks Appeals Court to Overturn Expansive Standard for Determining Bargaining Units: The NAM filed a brief with the 4th Circuit Court of Appeals arguing that the court should reverse an NLRB decision certifying a bargaining unit of only maintenance employees.
More Information: Nestle Dreyer’s Ice Cream Co. v. National Labor Relations Board (U.S. Court of Appeals for the 4th Circuit)

Products Liability

Business Groups Take on "Any Exposure" Asbestos Theory: The NAM and three other associations filed a brief in the Pennsylvania Supreme Court urging it to reverse a lower court's ruling that allowed expert testimony on causation without requiring an assessment of the amount of asbestos required to cause injury or identifying how much exposure occurred.
More Information: Rost v. Ford Motor Co. (Pennsylvania Supreme Court)

Other News

States to Tackle Tort Reform in New Legislative Sessions: As new sessions get underway in state capitols, some legislatures will likely turn to tort reform. In West Virginia, lawmakers have made the issue a priority. Civil justice issues are also on the docket in Illinois and Colorado.

Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at lkelly@nam.

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