The Center News: March 2018

NAM Impact
Legal Perspectives
By Linda Kelly, SVP, General Counsel and Corporate Secretary

Earlier this month, the NAM’s Manufacturers’ Center for Legal Action (MCLA) filed an amicus brief in the 9th Circuit Court of Appeals on behalf of beverage producers (see American Beverage Association v. City and County of San Francisco). Our brief argues that the ordinance violates the First Amendment to the U.S. Constitution and that courts should rigorously scrutinize government-mandated commercial speech.

In recent years, some cities, states and even the federal government have promoted special-interest policies by forcing manufacturers to denounce their own products publicly. The latest example is a San Francisco ordinance requiring warnings on certain beverage advertisements. The warnings must occupy at least 20 percent of the advertisement and state that “Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.” The advertising would appear as follows:

Coca Cola
Source: Published district court opinion.

This is not a new fight for the MCLA. In February, we filed an amicus brief in the U.S. Supreme Court supporting the wireless industry’s challenge to a Berkeley, California, ordinance requiring retailers to warn consumers about radio frequency emissions from mobile phones (see CTIA – The Wireless Association v. City of Berkeley). And in 2016, we challenged on First Amendment grounds a Vermont labeling statute for genetically engineered ingredients (see Grocery Manufacturers Association v. Sorrell). 

The NAM helped lay the legal groundwork for these battles in a pair of litigation victories in 2015 and 2013. In National Association of Manufacturers v. U.S. Securities and Exchange Commission (SEC), the D.C. Circuit Court of Appeals partially invalidated a federal regulation requiring manufacturers to identify whether their products contain minerals whose sale might have financed armed conflict in Africa. And in National Association of Manufacturers v. National Labor Relations Board (NLRB), the MCLA successfully challenged on First Amendment grounds an NLRB requirement that employers post notices of employees’ unionization rights.   

We will continue fighting in the courts for manufacturers’ free speech rights.

MCLA in the Courts
Class Actions

NAM Files Amicus Brief Supporting Attorney Privilege: On March 12, the NAM and other groups filed an amicus brief in the Pennsylvania Supreme Court arguing that documents shared between counsel and non-lawyers working with a company on a complex legal issue should be privileged. The issue is whether company conversations with public relations and legal counsel are privileged when determining how best to represent the company. Privilege over documents should not be waived merely because they are shared with public relations professionals to ensure that the company’s comments in the media are consistent with their legal positioning. It serves the interests of justice to extend the attorney–client privilege and work product doctrine so that businesses can properly integrate the lawyering and communications aspects of high-profile litigation.

More Information: BouSamra v. Excela Health (Pennsylvania Supreme Court)

NAM Files Amicus Brief in Chemical Contamination Case: On March 1, the NAM filed an amicus brief in the 2nd Circuit Court of Appeals to argue against overbroad theories of liability for chemical contamination. A group of landowners sued Saint-Gobain Performance Plastics Corporation, alleging that Saint-Gobain released perfluorooctanoic acid into groundwater that seeped into the plaintiffs’ nearby land. The NAM filed an amicus brief on behalf of Saint-Gobain to ensure that the current law limiting these claims remains appropriately constrained and favorable to manufacturers.

More Information: Baker v. Saint-Gobain Performance Plastics Corp. (2nd Circuit)
Labor Law

NAM Files Amicus Brief Defending Right of Employers to Terminate Employees for Disruptive Speech: On March 21, the NAM filed an amicus brief on behalf of Marquette University in a case involving the authority of a private employer to terminate an employee for conduct that violates the employment contract between the employee and employer. The NAM’s brief argues that private employers should remain free to discipline employees for conduct or speech that disrupts or adversely affects the employer’s mission, and where an employment contract establishes a process to resolve disciplinary disputes, courts should not disrupt that process.

More Information: McAdams v. Marquette University (Wisconsin Supreme Court)
Product Liability

NAM Files Amicus Brief Supporting Dow in Chemical Liability Case: On March 12, the NAM, along with the Chamber of Commerce and American Chemistry Council, filed an amicus brief urging the California Supreme Court to grant review in a case involving industry-wide liability for a dry-cleaning solvent. Various courts have shown a growing interest in nuisance cases, especially in California, and this case raises the question of whether a company can be held liable for nuisance even when there is no proof connecting culpable conduct to the particular harm. The City of Modesto sought damages for contamination of soil and groundwater by dry-cleaner releases of a perchloroethylene (PCE) dry-cleaning solvent. If handled properly, PCE solvents can be used safely and without environmental contamination, and no evidence existed that the PCE manufacturers, including Dow, were directly involved in the use of the solvents at the dry-cleaner sites. Allowing a generalized notion of causation to supplant proving direct evidence raises deep concerns for all manufacturers that lawfully manufacture, market and distribute beneficial, though potentially hazardous, products.

More Information: City of Modesto v. The Dow Chemical Company (California Supreme Court)
Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at [email protected].

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