The Center News is a monthly publication that highlights significant cases affecting manufacturers. The NAM’s Manufacturers' Center for Legal Action becomes involved in many of these cases to provide the judicial branch with an important perspective it might not otherwise hear. The NAM provides a voice for all manufacturers working to remain competitive amid the complexities of today’s legal system.
June 18, 2014
By Thomas C. Kirby, Legal Fellow
The Manufacturers’ Center for Legal Action maintains a sharp focus on legal trends at the state and local levels. Manufacturers feel the impact of state and local laws not only within those jurisdictions, but also nationally.
Recently, the National Association of Manufacturers (NAM) succeeded in encouraging the Texas Supreme Court to review a dangerous precedent that imposed retroactive liability for permanent plant improvements on manufacturers across Texas, but left manufacturers powerless to maintain, update or remove the improvements, or train third parties on proper use. This case breaks from established Texas precedent, and it could set a trend other states may follow when faced with similar issues.
In Colorado, the NAM is promoting the use of “Lone Pine” orders, which can dramatically decrease the delays and costs involved with litigation in state courts. In Vermont, we are challenging burdensome food-labeling requirements because, in addition to compelling speech in violation of the First Amendment, they position the state as the de facto labeling regulator for national companies since few companies produce and sell their food products only in Vermont. In South Carolina, we are supporting preemption of state common law nuisance claims because the same conduct is already strictly regulated by federal authorities, and there is no justification for a patchwork of state laws. In California, we are challenging expensive new cap-and-trade taxes that are imposing significant burdens on manufacturers and generating massive revenues that exceed what is necessary to administer the California Air Resources Board program.
The NAM identifies significant state court cases across the country through independent monitoring and member feedback. The support of NAM members is critical to continuing our efforts in state courts, and we encourage you to alert us to issues that are ripe for state court action.
Court Weighs Limits on Government-Compelled Disclosures: The NAM filed a brief in a matter involving the constitutionality of the country-of-origin labeling of meat products. Our brief urged the court to adopt a strict standard of review when considering government-compelled speech about commercial products.
Iowa Court Permits Clean Air Act Preemption Case to Proceed: The Iowa Supreme Court ruled that a common law tort claim involving pollutants and odors from a plant is not preempted by the Clean Air Act, Iowa law or the political question doctrine. Unless reviewed and reversed by the U.S. Supreme Court, this unfavorable outcome could spawn many similar claims around the country.
Manufacturers Win as Court Jettisons Public Trust Theory: A federal appeals court affirmed the dismissal of a suit brought in federal court in an attempt to force various federal agencies to impose 6 percent annual reductions in greenhouse gases under a public trust legal theory.
High Court Adds More Certainty on CERCLA Cases: The Supreme Court decided that CERCLA does not preempt state statutes of repose, thus limiting long-term liability under that law for pollution that occurred many years ago. The NAM had urged the Supreme Court to review the case and reverse a lower court’s decision extending the deadlines to file lawsuits under CERCLA.
NAM Pushes Back on MACT Rules: The NAM filed a brief in a case involving the statutory obligations of the EPA to set maximum achievable control technology (MACT) standards for emissions. This case will affect all MACT reconsideration proceedings.
Case Against OFCCP Poster Rule Continues: The NAM recently filed our reply in opposition to a summary judgment in our challenge of the Office of Federal Contract Compliance Programs’ (OFCCP) rule requiring the posting of a notice facilitating unionization.
NAM Seeks to Protect Employer E-Mail Systems: The NAM and our association allies filed a brief urging the National Labor Relations Board (NLRB) not to create an exception for employer-owned e-mail from the longstanding rule that employees generally have no right to use employer-owned property, equipment or materials for union-organizing activities as long as the employer’s restrictions on such usage are not discriminatory.
NAM Backs Boeing after Misguided Decision by NLRB Judge: The NAM filed a brief with the NLRB supporting Boeing in a matter brought by a union accusing the manufacturer of unfair labor practices, one of which involves a policy prohibiting the use of camera-enabled devices, such as smartphones, without prior approval.
Product and Premises Liability
Court Divided on Key Pronunciation Issue: The nine Supreme Court Justices disagree about a number of issues, including how to say “certiorari.”
Possible Implications of Pomegranate Juice Case for Future Food Lawsuits: Glenn Lammi of the Washington Legal Foundation examines the recent decision in a case involving food labels: “In the aftermath of POM Wonderful, one should expect the status quo or perhaps an uptick in state consumer protection class actions nit-picking at marketing claim on processed food labels. Another outcome of the Court’s ruling could be a parallel wave of Lanham Act suits from disappointed competitors like POM Wonderful that mimic the consumer class actions’ claims.”
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