The Center News: October 2015

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives
By Quentin Riegel, Vice President and Deputy General Counsel

Foreign Claims Against Manufacturers Deserve Supreme Court Scrutiny
After a federal appeals court unearthed one provision of the Judiciary Act of 1789 in 1980, foreign nations have used the Alien Tort Statute (ATS) to claim violations of the “Law of Nations” by a variety of manufacturers for activities involving allegations of human rights abuses taking place in foreign countries. The statute was intended to allow federal courts to hear a few limited claims involving such matters as acts of piracy, violations of safe-conducts or interference with the rights of ambassadors.

The Supreme Court has occasionally clarified the reach of the statute, but more help is needed. The National Association of Manufacturers (NAM) supports an important appeal to the court in Nestle U.S.A., Inc. v. Doe, which involves critical issues arising in ATS cases. One issue is whether U.S. courts should entertain extraterritorial litigation—lawsuits involving foreign parties and activities largely occurring abroad. Another is whether there is a well-defined consensus that corporations can be sued for violations of the Law of Nations. A third involves the extent of knowledge or intent that a business must have to be liable for the acts of others. A victory on any of these issues would be of substantial help to the many companies that have faced this kind of litigation.

The NAM has been highlighting the view of manufacturers in cases arising under the ATS since 2002. The Manufacturers’ Center for Legal Action (MCLA) is continuing to advance these views today and filed an amicus brief on October 21 supporting review of a lower court’s ruling that would open the door to many more ATS suits.

The United States is not the courthouse of the world. Foreign citizens should complain to their own governments when they think their laws have been broken. Their governments should set their own environmental, labor and other standards of behavior in conformance with international norms, and they should use their own procedures, customs and principles to resolve disputes. American laws and procedures are substantially different from other countries’ rules and applying our rules to conduct abroad is unnecessary and interferes with the sovereignty of other nations.

Expanding the ATS beyond its original intent would threaten our ability to work with many governments in developing regions and unstable conditions. Our manufacturing skill and strong and reliable business systems provide a positive example that other countries emulate, and the involvement of American manufacturing abroad will continue to help bring about economic and social improvements throughout out the world.

MCLA in the Courts
Environmental

Court Suspends “Waters of the U.S.” Rule: A federal appeals court issued a nationwide stay of enforcement of the Environmental Protection Agency’s (EPA)’s new rule until the resolution of legal challenges to it. The court concluded those challenging the rule “demonstrated a substantial possibility of success” in their case. Earlier this month, we filed a motion to dismiss the case from the Sixth Circuit because that court is not the proper jurisdiction to hear this kind of Clean Water Act challenge under the statute.

More Information: In re EPA and Dep't of Defense Final Rule: Definition of "Waters of the United States" (U.S. Court of Appeals for the Sixth Circuit)

NAM Challenges Activists’ Interference with Environmental Regulation: The NAM and our business community allies filed a brief supporting a federal judge’s decision not to impose an additional $642 million in penalties on ExxonMobil for various permit violations at its large Baytown, Texas facility. We argued that citizen suits should not be used to second-guess regulatory systems and instead should have a limited role to fill in gaps that may occur.

More Information: Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp. (U.S. Court of Appeals for the Fifth Circuit)

NAM Opposes Another Threat to Shell’s Exploration in Chukchi Sea: The NAM filed a brief opposing another lawsuit brought by environmental groups challenging the Bureau of Ocean Energy Management’s approval of exploratory drilling in the sea north of Alaska. We urged the court to reject the appeal from the environmental groups and allow exploration to continue.

More Information: Alaska Wilderness League v. Jewell (U.S. Court of Appeals for the Ninth Circuit)

NAM Asks EPA To Put Clean Power Plan Rule on Hold: The NAM and 14 other associations petitioned the EPA to issue an administrative stay of its newly signed regulation of the U.S. energy sector until the courts resolve the rule’s legality. We argue that the rule is already causing irreparable harm by forcing the closure of vast numbers of existing coal-fired generating units and that legal challenges to the rule are likely to prevail in court since the Clean Air Act expressly forbids EPA from regulating existing fossil fuel-fired generating units under Sec. 111(d). We also argued that the rule imposes standards of performance for the entire energy sector, rather than only for the individual sources of greenhouse gases from the power plants themselves.

More Information: NAM Petition (EPA)
Expert Testimony

NAM Weighs in on Key Evidence Ruling: The NAM weighed in with the California Supreme Court in a case involving expert testimony seeking to prove causation. Our  letter argued that California appellate courts are divided on whether the question of admissibility is distinct from that of liability and that California courts are divided on whether epidemiology can be used to prove specific causation.

More Information: Cooper v. Takeda (California Supreme Court)

Manufacturers Seeks Clarification of Indiana Evidence Rule: The NAM and coalition associations filed a brief in support of Ford Motor Company with the Indiana Supreme Court in O’Banion v. Ford Motor Company. Our brief seeks clarification of Indiana’s Rule of Evidence 702. Unlike the federal evidence rules, where under Daubert v. Merrell Dow, “any and all scientific testimony or evidence” must be both relevant and reliable, Indiana’s rule applies different standards to expert “scientific” testimony and testimony based on “technical” or “other specialized knowledge.” If testimony is deemed “scientific,” the testimony may only be admitted if it “rests upon reliable scientific principles.” If the testimony is not scientific, it must be admitted so long as it may “help the trier of fact understand the evidence or to determine a fact in issue.” As a result of this divide, much expert testimony litigation in Indiana is centered on the threshold question whether expert testimony is “scientific” or merely “technical.”

More Information: O’Banion v. Ford Motor Company (Indiana Supreme Court
Labor Law

NAM Stands with Property Owners Against Violation of Property Rights by Labor Union: NAM and allied associations filed a brief in a Nevada case involving the fundamental right of property owners to access state courts in order to secure their right to be free of third-party trespass. Our brief argued that by intentionally projecting an illuminated image onto various prominent and highly visible parts of a building and other physical structures, a labor organization effectively took control of the physical space on which the image was displayed. Such misappropriation interferes with the private property rights of the owner.

More Information: International Union of Painters v. Great Wash Park LLC (Nevada Supreme Court)

Manufacturers Seek Clarity on Definition of Multi-Employer Bargaining Units: The NAM and coalition associations filed a brief with the National Labor Relations Board (NLRB) in a case in which a union filed a petition seeking to represent a “multi-employer” bargaining unit consisting of employees from Miller & Anderson, a mechanical contractor, and temporary employees provided by a staffing company. The NAM’s brief argued that any bargaining unit that seeks to include employees employed solely by one of the constituent entities that comprise the joint employer is a multi-employer unit. Under NLRB precedent, multi-employer units are only appropriate where both employers consent to that arrangement; in this case, they did not.

More Information: In re Miller & Anderson (NLRB)
Questions or Comments?

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

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