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.

 

 
Council of Manufacturing Associations

March 19, 2014

Center Perspectives

By Linda Kelly, Senior Vice President and General Counsel

The NAM is kicking off an exciting legal engagement opportunity to further our partnerships with in-house counsel. The Legal Issue Advisory Groups will help set the agenda for the Manufacturers’ Center for Legal Action by identifying priorities, vetting cases, and sharing intelligence on litigation trends and challenges faced by manufacturers. The groups will meet primarily by phone and online and occasionally in person.

The Legal Issue Advisory Groups will be structured around the six focus areas for the Center, which include energy and environment; labor and employment; products liability and civil justice; international trade; intellectual property; and corporate governance and shareholder activism. The enhanced engagement of manufacturing in-house counsel in the work of the Center will strengthen the effectiveness of our legal engagements, improve our understanding of the legal challenges and trends facing the manufacturing industry and provide a valuable networking and informational platform.

Eligibility requirements for participation in the groups include NAM membership, in-house status at a manufacturing company or organization and financial support of the Manufacturers’ Center for Legal Action. Please contact Linda Kelly, Quentin Riegel or Patrick Forrest for details.

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MCLA in the Courts

Product Liability
Supreme Court Declines Review of Broad Class Action Certification: The Supreme Court dealt a setback to efforts to curb class action abuse. In this case, two federal appeals courts certified classes even though most members of the class may not have experienced the claimed injury arising from front-loading washing machines. The NAM filed an amicus brief stating our view that those courts took too expansive a view about certification.
More Information: Sears, Roebuck and Co. v. Butler

Environmental
NAM Appeals Ruling on California Cap-and-Trade Revenue Scheme: The NAM appealed a decision by a California judge that the California Air Resources Board (CARB) has the discretion to raise revenues by auctioning and selling allowances under the state’s greenhouse gas cap-and-trade program. The NAM had intervened in this case to challenge CARB’s authority to bypass the appropriations process to impose what amounts to a massive tax on California businesses.
More Information: California Chamber of Commerce v. California Air Resources Board

NAM Asks High Court to Weigh Whether CERCLA Preempts State Statutes of Repose: After an appeals court gave plaintiffs more time to file state law nuisance claims for environmental damages covered by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the NAM asked the Supreme Court to review the decision. The NAM argues that the nuisance claims should be barred by the state’s statute of repose.
More Information: CTS Corp. v. Waldburger

NAM Objects to EPA Power Grab: The NAM filed a brief in the Supreme Court urging review of a lower court decision that allows the Environmental Protection Agency (EPA) to supplant state determinations about regional haze with direct federal standards that reflect the EPA’s own preferences. This interferes with the Clean Air Act’s structure, which recognizes that states are uniquely situated to make local policy decisions.
More Information: Oklahoma v. EPA

Labor
Ninth Circuit Broadens FLSA Wage Provisions: The Ninth Circuit ruled that the Fair Labor Standards Act (FLSA) entitles employees to receive compensation covering the time in which they undergo security screenings before beginning the workday. The NAM filed a brief urging the Supreme Court to take up the case and affirm that the FLSA does not require employers to compensate employees for the time spent on activities before and after the workday.
More Information: Integrity Staffing Solutions, Inc. v. Busk

Department of Labor Expands Davis-Bacon Act to Private Projects: The NAM led a coalition of associations on a brief highlighting the adverse consequences of a Department of Labor ruling finding that the SpaceX Florida launch facility project is subject to the 1931 Davis-Bacon Act. The Department of Labor argues that Davis-Bacon “prevailing wages” for construction workers should apply because the project is being built on federally owned land. This represents a potentially massive expansion of Davis-Bacon applicability.
More Information: In re Space Exploration Technologies Corp.

EPA Lifts BP Debarment: Last week, BP and the EPA reached an administrative agreement under which the EPA agreed to end the broadly sweeping and long-running suspension and debarment of BP and its worldwide affiliates from federal contracting. The NAM joined a brief challenging the scope of the debarment.
More Information: BP v. McCarthy

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Other News

Federal Judge Issues Massive Opinion in Lago Agrio Case: U.S. District Court Judge Lewis Kaplan delivered a victory for Chevron in the energy company’s long-running battle over decades-old environmental damages in Ecuador. During the litigation, Chevron uncovered evidence of fraud and fought back, filing a racketeering suit against the plaintiffs’ attorney. The opinion corroborates Chevron’s shocking allegations.

Fifth Circuit Says No Proof of Causation Required to Collect: In a 2–1 decision, the U.S. Court of Appeals for the Fifth Circuit ruled against BP in its effort to seek relief from an onslaught of questionable claims under the Deepwater Horizon settlement fund. The court held that, under the terms of the settlement, claimants need not produce evidence that the oil spill caused their claimed losses.

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