The Center News: September 2015

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives
By Linda Kelly, Senior Vice President, Legal

As the days grow shorter and the night air chills, the team at the Manufacturers’ Center for Legal Action (MCLA) is gearing up for a new term at the U.S. Supreme Court. Class actions and related issues feature prominently on the court’s docket. Among the cases in which the MCLA is playing a role is Spokeo v. Robins, which involves whether a plaintiff with no injury has standing to sue simply because a statute has created a cause of action. In our amicus brief, manufacturers argue that statutory injury-in-law is no substitute for constitutional Article III injury-in-fact because Congress cannot abrogate constitutional standing requirements. Our brief also points out that abandoning the Article III injury-in-fact requirement would invite abusive class action litigation by allowing plaintiffs’ attorneys to amass huge classes of uninjured plaintiffs.
Soon after Spokeo, the court will hear arguments in Tyson v. Bouaphakeo, a case with both class action and employment law implications. The case involves the use of statistical sampling to determine both injury and damages under the Fair Labor Standards Act (FLSA). Specifically, the case involves overtime wages for the time it took employees to put on and take off protective gear. Many of the class members were fully compensated and had no FLSA injury, yet they were included in the class and were set to receive windfall compensation under the aggregate award. Our amicus brief urges the Supreme Court to set a bright-line rule against the inclusion of uninjured class members. The brief also highlights the troubling development of “no injury” class actions, as demonstrated in recent product manufacturing, product labeling and data privacy cases.

The court might also hear Dow v. Industrial Polymers, an antitrust class action case. At issue is whether a court properly denied the defendant the opportunity to rebut a presumption that all plaintiffs suffered the same damages as a result of an alleged antitrust conspiracy even though each purchaser negotiated an individual price with the manufacturers. This case involves similar issues concerning “no-injury” class members, and our amicus brief argues that the court should review this important issue in the antitrust context.

Other issues of importance to manufacturers, which are set to be heard by the court, include the scope of preemption under the Federal Arbitration Act; whether a case ceases to be justiciable if a complete offer of relief has been made; how to define the tolling period for a federal employment discrimination claim; and the question of which courts should hear state law claims based on federal securities law violations.

The MCLA will keep you updated on these cases as the court term progresses.

MCLA in the Courts  
Conflict Minerals

Appeals Court Reaffirms NAM Victory in Challenge to Conflict Minerals Rule: A federal appeals court affirmed a previous decision finding that the Securities and Exchange Commission’s (SEC) conflict minerals rule mandates unconstitutional government-compelled speech. This ruling relieves manufacturers from the obligation to report that products containing gold, tantalum, tin or tungsten are “DRC conflict free” or “DRC conflict undeterminable.” These statements would ethically taint products and stigmatize companies in violation of the First Amendment.

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

ALJ Protects Racist Statements: The NAM filed a brief on an employer’s behalf in its appeal before a regional National Labor Relations Board panel in a case concerning the discharge of an employee for making racist statements made on a picket line. An administrative law judge (ALJ) found that the employee’s “statements most certainly were racist, offensive and reprehensible” but they did not forfeit the protection of the National Labor Relations Act (NLRA). The NAM argued that this ALJ decision should not stand because the NLRA cannot and should not protect racist comments, regardless of where or when these comments are made.

More Information: In re Cooper Tire & Rubber  Company (National Labor Relations Board)

NAM Intervenes in Key Case Defining “Employee”: The NAM and coalition associations filed an brief on behalf of Fedex Home Delivery in a case in which the National Labor Relations Board (NLRB) stated delivery service contractors working for Fedex were not independent contractors but employees of Fedex. The NAM is asking the court to reverse the NRLB’s decision and continue to allow manufacturers to hire independent contractors as the NLRA allows.

More Information: FedEx Home Delivery v. NLRB (U.S. Court of Appeals for the D.C. Circuit)

Manufacturers Seek Fairness in Class Actions: The NAM filed a brief in a case before the Supreme Court involving the use of statistical sampling and the creation of an “average” employee to determine both injury and damages under the Fair Labor Standards Act (FLSA). Many of the class members were fully compensated and had no FLSA injury, yet they were included in the class and were set to receive compensation under the aggregate award. Our brief urged the Supreme Court to set a bright-line rule against the inclusion of uninjured class members.

More Information: Tyson Foods, Inc. v. Bouaphakeo (U.S. Supreme Court)
Patent Law

Manufacturers Support Flexibility in Patent Settlements: A federal appeals court will decide whether a patent dispute settlement violates antitrust laws even though the agreement is pro-competitive. The NAM’s brief urges courts not to discourage pro-competitive settlements.

More Information: In re Loestrin 24 FE Antitrust Litigation (U.S. Court of Appeals for the 1st Circuit)
Product Liability

Georgia Court Agrees to Hear “Any Exposure” Theory Appeal: The Georgia Supreme Court will review an asbestos lawsuit involving expert testimony that any exposure to a hazardous substance is a substantial contributing factor in the development of a disease. The NAM urged review of this case.

More Information: Scapa Dryer Fabrics, Inc. v. Knight (Georgia Supreme Court)
Questions or Comments?

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

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