The Center News: January 2016

A Publication of the National Association of ManufacturerstheCenter for Legal Action

What Happened in 2015

The team at the Manufacturers’ Center for Legal Action (MCLA) welcomes you to a new year.  For us, 2015 was a year of unprecedented litigation activity, as our efforts to represent the NAM and manufacturers in the courts found us weighing in across a broad spectrum of important issues. As usual, we carried a heavy core load of environmental and labor cases but were also active on diverse issues such as GMO labeling, Open Internet, False Claims Act Litigation, shareholder activism, attorney-client privilege and retiree benefits.

Party Litigation

We launched new salvos against regulatory overreach on ambush elections, Waters of the U.S., the Clean Power Plan, new ozone NAAQs standards and the definition of solid waste under federal Resource Conservation and Recovery Act (RCRA) standards.  We prevailed in our effort to uphold our victory on the SEC’s conflict minerals regulation in the face of an en banc review in the D.C. Circuit and are now waiting to see if the SEC or intervenor Amnesty International will appeal the decision to the Supreme Court.  If they do, we will be there.  We were also successful this year in our effort to gain intervenor status in the European Court of Justice on an issue involving protection of trade secrets.

Amicus Program

Through our amicus program, we supported significant wins in a variety of state and federal courts, including:

Direct Legal Assistance – Manufacturers’ Compliance Institute

In 2015 we also launched the Manufacturers Compliance Institute, providing limited compliance counseling to NAM members in the area of labor and employment law.  Since we launched this service in April 2015, we have helped more than 400 companies, and plan to expand this initiative into new areas of the law where manufacturers need compliance support.  Stay tuned.  Meantime, to seek assistance through the MCI, contact us here.

What’s Coming in 2016

Looking to the year ahead for manufacturers in the courts, a number of important issues are percolating. As always, the MCLA plans to play a central role.

In the regulatory arena, 2016 will be a busy year as the Obama Administration sprints to the finish line with an array of regulations in its remaining days and continues to test the limits of executive power through use of executive orders. 

In the labor and employment arena, the NLRB will continue the effort to redefine union bargaining units by enabling micro-unions and through the new joint employer standard.  The MCLA will be heavily engaged in pushing back on these cases.  We will continue to seek an opportunity to challenge the ambush elections rule after being thwarted in our effort to address it in 2015 by the D.C. Circuit.  And we will be focused on important pending final regulations, including the Persuader Rule, overtime regulations, and the Fair Pay and Safe Workplaces Executive Order (blacklisting), all of which will be under consideration for legal challenge depending on the final outcome of the rule.

In the environmental arena, we will continue our challenges to regulatory overreach on Waters of the United States, the Clean Power Plan and the new ozone NAAQs standard, while keeping an eye on the new methane regulations coming down the pike.

In the corporate governance arena, we are expecting another active shareholder proxy season.  The NAM has created a resource to assist members in managing shareholder activist campaigns.  If you would like to receive a copy, please reach out to NAM VP & Deputy General Counsel Patrick Forrest.

In the civil justice arena, the spotlight will be on the U.S. Supreme Court, which will be deciding several important cases concerning how class action lawsuits are conducted.  The Court may also decide to take up a critical False Claims Act issue concerning how broadly that law sweeps. 

Finally, as the U.S. Department of Justice focuses on aggressively pursuing cases of corporate and individual liability as outlined in the recent Yates memo, it will become increasingly important to push back on efforts to expand or blur the boundaries of liability under statutes with complex compliance obligations, such as the Foreign Corrupt Practices Act.

Get Involved 

A lot will be happening in the coming year.  If you are an in-house counsel at an NAM member company, please consider joining one of our six Legal Issue Advisory Groups.  The groups meet quarterly by teleconference.  These discussions help the MCLA identify and vet opportunities for court engagements, while also providing legal and regulatory updates and allowing member in-house counsel to network and identify best practices with your peers. 

Membership in these groups is limited to in-house counsel and requires a contribution to the legal center. However, during the first quarter of 2016, we are opening up participation in the calls to in-house counsel from NAM member companies who would like to check them out.  Here is the schedule for the Q1 calls.  All times listed are Eastern Standard Time. Please click below to email and let us know if you would like to receive invitations to join any or all of them:

Finally, we have launched a new closed LinkedIn group to facilitate discussion among members on legal issue affecting manufacturers.  If you would like to receive an invitation to join the MCLA LinkedIn group, please click here.

Questions or Comments?

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

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