The Center News: November 22, 2013

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.


Center for Legal Action

Center Perspectives
By Linda Kelly, Senior Vice President and General Counsel  

Welcome to the first edition of The Center, a monthly publication of the Manufacturers' Center for Legal Action (MCLA). This monthly newsletter will highlight the NAM's activities in the courts as well as other important legal developments affecting manufacturers. It takes the place of Manufacturers in the Courts and the FLAG Weekly Communication.

With the launch of the MCLA in September, the NAM has significantly stepped up its activity in the legal sphere on behalf of manufacturers. In the face of an aggressive regulatory environment, a gridlocked Congress and an entrepreneurial plaintiffs' bar, a robust legal strategy has never been more important to protecting the health and vitality of the manufacturing sector. The MCLA will engage in party litigation, weigh in on important cases via amicus briefs and amplify the manufacturing voice in the legal community in an effort to rein in regulatory overreach, protect our hard-fought legislative gains and level the playing field for manufacturers. We will also build networks of in-house manufacturing counsel to help us better understand the legal challenges facing our members as well as to identify trends and opportunities to make a difference through legal action. 

On behalf of the entire MCLA team, we hope you enjoy our new publication and look forward to working with you for the benefit of the 12 million men and women who make things in America.

MCLA in the Courts  

Government Regulation  

NAM Moves Forward with Appeal in Conflict Minerals Case: The NAM is appealing a federal district court's decision upholding the Securities and Exchange Commission's conflict minerals rules. The NAM filed the initial brief in September and the reply brief earlier this month. Argument in the case is scheduled for January 7, 2014.
More information:NAM v. SEC  

Class Actions  

NAM Challenges Lax Class Certification Standards: In this case involving front-loading washing machines, the NAM filed a brief urging the reversal of a lower court's decision that all doubts about certifying a class should be resolved in favor of certification.
More information:Terrill v. Electrolux Home Prods., Inc.


Faulty Class Certification Includes Members Who Suffered No Harm: The NAM filed a brief urging the Supreme Court to review the improper certification of class action lawsuits involving front-loading washing machines. Lower courts certified the classes even though some members of the classes suffered no injury.
More information:Sears, Roebuck and Co. v. Butler  

Class Certification Decision Requires More Scrutiny from Judge: A California judge certified a class of 60,000 employees in 2,400 different jobs before confirming that there were common damages among class members and that individual damages could be calculated using a class-wide formula. The NAM filed a brief arguing that the judge should have undertaken a more rigorous analysis before certifying the class.
More information:In re High-Tech Employee Antitrust  


Supreme Court to Test "Fraud-on-the-Market" Precedent: The NAM filed a brief asking the Supreme Court to reconsider the fraud-on-the-market presumption, which spawned a proliferation of securities class action lawsuits. The Supreme Court has agreed to hear this case. 
More information:Halliburton Co. v. Erica P. John Fund, Inc.  


Court Says Clock Starts Before Security Checks: The NAM filed a brief asking the Supreme Court to review a lower court's decision that time spent undergoing security checks is compensable under the Fair Labor Standards Act.
More information:Integrity Staffing Solutions, Inc. v. Busk  

EEOC Trolls for Plaintiffs by E-Mailing Employees at Work: Case New Holland (CNH) sought a declaratory judgment that the Equal Employment Opportunity Commission (EEOC) overstepped when it e-mailed CNH employees in an attempt to generate a class action suit against the manufacturer. The NAM filed a brief opposing the EEOC's motion to dismiss CNH's complaint.
More information:Case New Holland, Inc. v. EEOC  


California Court Upholds Cap-and-Trade Revenue Scheme: A California state court held that the California Air Resources Board (CARB), a state agency charged with implementing California's cap-and-trade initiative, could use that program to generate revenues far in excess of the costs involved in running the program. The California Chamber of Commerce and the NAM had challenged CARB's authority to raise these excessive revenues.
More information:California Chamber of Commerce v. California Air Resources Board  

Manufacturer Battles Public Nuisance Suit: The NAM filed a brief in this appeal to the Iowa Supreme Court supporting the lower court's decision blocking a public nuisance suit against a local factory over its emissions.
More information:Freeman v. Grain Processing Corp.  

Sierra Club Moves to Speed Up Air Regulation: As part of the National Ambient Air Quality Standards (NAAQS) Implementation Coalition, the NAM is seeking to intervene in and oppose the Sierra Club's effort to accelerate the Environmental Protection Agency's (EPA) regulation of sulfur dioxide.
More information:Sierra Club v. EPA  

Supreme Court Won't Hear Dispute Between EPA and State Regulators: The NAM filed an amicus brief asking the Supreme Court to review this case in which the EPA disapproved a part of Texas's State Implementation Plan for controlling emissions. The EPA's decision exposes manufacturers to civil penalties and fines for routine activities. The Supreme Court declined to review this appeal.
More information:Luminant Generation Co. v. EPA  

Sierra Club Seeks Tougher Ozone Rules: The NAM sought to intervene in environmental groups' efforts to force the EPA to issue more stringent ozone rules. A federal district court, however, denied our motion to intervene.
More information:Sierra Club v. EPA  

Product Liability  

New York Plaintiffs Seek to Expand Medical Monitoring Cause of Action: In a case before the New York Court of Appeals, the NAM filed a brief arguing against the recognition of a new cause of action. In this case, a smoker who has exhibited no signs of illness sued a tobacco company to pay for annual medical checkups to monitor her health.
More information:Caronia v. Philip Morris USA, Inc.  

New York Court Weighs Punitive Damages for Asbestos Cases: The NAM filed a brief urging a New York court to forbid the imposition of punitive damages in asbestos cases. That court is currently reconsidering an order that deferred the imposition of such damages.
More information:In Re New York City Asbestos Litigation  

And in Other News . . .  

Consumer Protection Laws Spawn Lawsuit Industry: The American Tort Reform Association recently published a paper on the abuse of state consumer protection laws. "By taking advantage of the laws' vague prohibition of "˜unfair or deceptive practices,' plaintiffs' attorneys and some advocacy groups are transforming them from serving a legitimate function for consumers into a virtual lawsuit production factory," the report states.

The CPSC Gets Personal: A former Consumer Product Safety Commission (CPSC) member weighs in on the agency's tactics in going after the CEO of the company that made Buckyballs, powerful rare earth magnets turned desktop novelties. "The CPSC action to remove Buckyballs from the market raises serious questions about how the government acts to protect consumers," Nancy Nord writes in The Wall Street Journal . "In its zeal to address a problem that it believes to be a serious safety concern, the CPSC seems to have adopted the philosophy that any action, no matter how heavy-handed and outside established practice, is warranted if it achieves the desired result."


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