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.

 

A Publication of the National Association of Manufacturers
theCenter for Legal Action
August 20, 2014
Center Perspectives
By Patrick Forrest, Vice President and Deputy General Counsel

When government oversteps its authority and threatens constitutional rights for both manufacturers and every American, the National Association of Manufacturers (NAM) gets involved. The Manufacturer's Center for Legal Action will be filing an amicus brief in the Second Circuit, encouraging the court to overrule a federal district court's decision that would enable the U.S. government to obtain private records stored in a cloud server outside the United States. This issue is not just about manufacturing and business, but more importantly, it is about protecting constitutional guarantees against unlawful search and seizure and invasion of privacy.

This case began when U.S. law enforcement, while conducting a narcotics investigation, sent a search warrant ordering Microsoft to turn over customer e-mails stored in a data center located in Ireland. When Microsoft challenged the warrant at the trial level, the district court ruled in favor of the government despite abundant judicial precedent that prohibits search and seizure of private information outside of the United States.

Warrants to search private records are a function of the U.S. legal system but have no application in foreign countries. Instead, the government must go through the proper treaties and collaborate with foreign governments to access private information abroad. Domestically, the government has tried to bypass these procedural roadblocks by claiming that e-mails stored in a cloud are no longer private, but rather business records of the company that owns the cloud server.

The government has adopted this strategy because business records have less legal protection than private records. The records in question are private e-mails in a password-protected account. Despite the change in technology, the same high level of legal protection should apply to private digital records as it does to paper records. The Supreme Court recently reiterated in United States v. Miller that the government cannot search the contents of a cell phone without a warrant because it contains private records (e-mails, text messages, pictures, bank account information, etc.).

If the government succeeds in accessing the e-mails at Microsoft's Ireland facility, it will embolden other foreign countries to issue warrants for private e-mails stored in the United States. This exposes every American to a potential invasion of privacy. Additionally, if allowed to stand, the lower court's decision will discourage foreign entities from contracting with U.S. companies. Certain foreign companies already fear that contracting with U.S. companies will leave them more vulnerable to National Security Agency information gathering. Finally, this puts U.S. manufacturers in the untenable position of choosing which jurisdiction of laws to follow, exposing them to further uncertainty in their business processes.

The NAM will continue to fight to uphold constitutional liberties and promote a robust relationship between U.S. and foreign manufacturers. The government cannot be allowed to disregard judicial precedent and undermine the Constitution.

MCLA in the Courts
Compelled Speech

Court Upholds County-of-Origin Labeling: The D.C. Circuit affirmed a decision allowing the U.S. Department of Agriculture to require country-of-origin labeling for meat products. The 9–2 decision makes it easier for the government to impose labeling requirements that are factual and noncontroversial.

More Information:
American Meat Institute v. USDA
(U.S. Court of Appeals for the D.C. Circuit)
Environmental Law

The NAM Files Principal Brief Challenging Boiler MACT Regulations. In 2011 and 2013, the EPA published new rules affecting how boilers may be operated, which prompted the NAM and other business groups to file suit over the EPA's requirements. On August 12, the NAM filed a principal brief on the merits, arguing in part that the agency exceeded its authority in imposing a broad energy assessment requirement and that the mandated emissions limitations have not actually been achieved nor are they achievable because they do not account for malfunctions.

More Information:
U.S. Sugar Corp. v. EPA
(U.S. Court of Appeals for the D.C. Circuit
Health Care Benefits

The NAM Resists Benefits Creep. The NAM filed a Supreme Court amicus brief challenging indefinite retiree health care benefits resulting from silence in the collective bargaining agreement. The Court will determine whether silence concerning the duration of retiree health care benefits in collective bargaining agreements means the parties intended those benefits to vest, or in other words continue indefinitely. The NAM brief argues that Congress intended that retiree health benefits vest only upon "clear and express language." Allowing such benefits to vest after mere silence, and without express agreement, would significantly increase employer costs and result in excessive litigation.

More Information:
M&G Polymers USA, LLC v. Tackett
(U.S. Supreme Court)
Other News

Alabama Supreme Court Expands Product Liability. In the 6–3 ruling of Wyeth, Inc. v. Weeks, the Supreme Court of Alabama held that a company can be liable for injuries allegedly caused by a product it neither manufactured nor distributed. The Business Council of Alabama issued a press release about the decision here.

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Questions or comments?
Contact Senior Vice President & General Counsel Linda Kelly at lkelly@nam.org.