The Center News: February 2017

Manufacturers weigh in on key class-action antitrust case: The National Association of Manufacturers (NAM) urged the Supreme Court to consider this case involving the presumption of class-wide antitrust impact based on allegations of a coordinated cardboard packaging industry price increase. Many industries feature price indexes that help set standard prices, and this case raises concerns that manufacturers will be exposed to expansive class-action antitrust liability.

“Waters of the U.S.” hearing delayed: The NAM’s “waters of the United States” case in the U.S. Supreme Court is postponed until October. The case will resolve which court—a district court or an appellate court—should hear our challenge of the rule. This development provides more time for the parties to file briefs and prepare for arguments and will likely mean that a full complement of nine justices will hear the case.

Judge allows public trust greenhouse gas case to proceed in Oregon: A federal judge in Oregon rejected NAM and Obama administration arguments opposing a lawsuit filed by a group of young people seeking further government action to reduce greenhouse gases. Unless appealed, the case will now proceed to trial in an attempt to prove that the government helped cause climate change by inadequate regulation.

Federal court supports manufacturers’ First Amendment free speech rights: U.S. District Judge James L. Robart supported the NAM’s position in Microsoft v. U.S. Dep't of Justice by affirming that companies have a First Amendment right to talk to their customers and to discuss how the government may be conducting its investigations against them.  The government’s order in this matter attempted to indefinitely prevent Microsoft from speaking about government investigations, implicating Microsoft’s First Amendment rights.

NAM pushes back against NLRB overreach: The NAM filed a brief supporting Volkswagen in its dispute with the United Auto Workers (UAW). The UAW brought a complaint against Volkswagen for refusing to bargain with a group of maintenance employees at the automaker’s Tennessee plant. The main issue is the application of the Specialty Healthcare case, which reversed decades of precedent and established an unlawful new standard creating so-called micro-unions of a narrow class of employees.

Business pushes back on sweeping change by Department of Labor: The NAM, along with a group of 60 business associations, filed a brief urging a federal appeals court to keep the preliminary injunction of the “overtime” rule in place. The Department of Labor failed to acknowledge that its new rule radically upends decades of regulations, consider whether the new rule would impermissibly sweep in employees who should have been exempt, and give any consideration to the business community’s legitimate interests. The new administration is evaluating the issues of this case, which arose during the Obama administration.

NAM buys time to undo OSHA regulation: The NAM asked for and received an extension of time to oppose the Occupational Safety and Health Administration’s (OSHA) new workplace injury and illness rule. This delay will give the new administration more time to work on reversing the rule. We also added an additional argument to our complaint to address the electronic reporting requirements. Amending the complaint, combined with the extension of time, should provide enough time for the new Department of Labor  to suspend, repeal and replace the rule altogether—which we have reason to believe they will do.

Court mandates duty to warn in medical device case: The Washington Supreme Court ruled against a medical device manufacturer in an appeal involving its duty to warn about risks from a robotic device used for laparoscopic surgery. The court ruled that the company has a duty to warn not only the doctor using the device, but also the hospital that bought it. The NAM had filed an amicus brief arguing that the manufacturer had only a duty to warn the physician, who was the sole learned intermediary.