The National Labor
Relations Board can now require most private businesses to put up posters
telling workers they have a legal right to form a union ... continue
SURVEY: THE END OF OUTSOURCING IS NEAR
Today in Manufacturing
Today in Manufacturing
A report shows that in three years, American manufacturers
will only save 10 percent when they outsource to China, and that difference
will only continue to plummet... continue
|
Quick
Manufacturing News
U.S.
manufacturing activity increased in February, according to the Institute for
Supply Management’s Purchasing Managers’ index, but the rate of growth
declined for the first time in three months. The news disappointed analysts,
who suggested a range of explanations involving higher fuel and raw materials
prices, and less robust consumer activity, for the slower rate of domestic
manufacturing. Click to continue
|
|
Quick
Manufacturing News
Although
4Q2011 growth in industrial real estate demand was slightly lower than the
historical normal range of 1-2% per year, it matches overall economic growth,
which, judging by GDP, is still positive. Click to continue
|
|
Quick
Manufacturing News
When
asked about their expectations for their own country's economy over the next
six months, 83% of U.S. CFOs and 64% of Canadian CFOs expect no change (while
12% and 28% expect worse conditions, respectively). Click to continue
|
|
Quick
Manufacturing News
'For
much of 2011, the auto industry was a bright spot for the overall economy,
and we think that will likely continue to be the case.' Click to continue
|
|
Quick
Manufacturing News
The
American Society of Safety Engineers hopes that OSHA is listening to its
pleas to lower the permissible exposure limit for noise to 85 dBA. Click to continue
|
|
MANUFACTURERS IN THE COURTS
National Association
of Manufacturers
Arguments by the NAM in two pending cases could result in
major favorable precedents that would reduce the regulatory and litigation
burden facing many manufacturers.
The first involves our challenge to EPA’s efforts to
regulate greenhouse gas emissions from manufacturing facilities and power
plants. This case, which is actually a set of consolidated cases involving 94
different petitions, is now under final review by three judges on the U.S.
Court of Appeals for the D.C. Circuit. Briefing was completed last
year, and oral arguments were held on Feb. 28 and 29. The NAM provided the
court with a solution that would avoid EPA’s convoluted process and results
that even EPA calls absurd. Under a reasonable reading of the Clean Air Act,
EPA would be unable to regulate most stationary sources of greenhouse gases
without congressional approval. A decision is expected by this summer.
The second involves Supreme Court deliberations over the
Alien Tort Statute (ATS), which allows suits by foreign nationals in U.S.
federal courts against companies alleged to have assisted foreign governments
in human rights violations. About 150 of such cases have been brought over
the past 30 years, and the Supreme Court is expected to issue a landmark
decision that could throw all existing claims against manufacturing companies
out of court entirely. The NAM has been active in asking the courts to keep
the ATS within very strict boundaries, and we are hopeful that the decision in
the Kiobel
case, expected before July, will end these claims.
|
Environmental Law
Environmental groups continue to pressure the EPA to lower
existing ozone standards, which are already the subject of an NAM challenge,
even further. Last year, President Obama called on the agency to defer
reconsideration of the existing rules, which it did. Subsequently,
various groups sued. The Ozone NAAQS Litigation Group, of which the NAM is a
member, moved to intervene in this litigation to
support EPA’s decision not to change the existing ozone limits at this
time. On February 17, the Court dismissed the American Lung
Association’s petition for review, saying that it “lacks jurisdiction over
the agency’s non-final decision to defer action on the 2008 voluntary
revision of the national ambient air quality standards for ozone.” The 2008
rules are still being litigated (see below).
Environmental groups are also attempting to sue U.S.
companies in U.S. courts for activities that occur completely in foreign
countries. In one case, the NAM supported Chevron in its
long-running battle with Ecuadorian natives and their American lawyers and
consultants over a legal claim for pollution from oil drilling operations in
Ecuador many years ago. The issue in the most recent round of litigation was
whether an American court may prevent alleged fraud by barring enforcement in
other countries of an $18 billion judgment from an Ecuador court. The NAM
filed an amicus brief last year supporting Chevron’s request to stop
enforcement of the judgment, but the Second Circuit ruled on January 26 that
New York law does not help. Chevron has to wait until the Ecuadorian
plaintiffs try to enforce their damages award in New York.
Product Liability
Federal preemption of litigation under state law is an
important protection for manufacturers in many industries. Manufacturers of
equipment for railroads received a favorable ruling
from the Supreme Court on February 29 when it found that asbestos claims
under state law are pre-empted by the federal Locomotive Inspection Act. That
Act grants the Secretary of Transportation broad authority to regulate the
design, construction and material of every part of a locomotive, and various
design defect and failure-to-warn claims under state law were pre-empted. The
NAM had filed an amicus brief last October favoring pre-emption and warning
against expanding tort litigation in the states. The NAM will continue to
press for federal pre-emption where appropriate to limit often conflicting
legal requirements that arise under state law or tort litigation like this.
The California Supreme Court provided additional
protection for manufacturers in a recent decision. The
court ruled that a manufacturer cannot be held liable for injuries caused by
asbestos that was added to the product by another party. The NAM had
filed briefs opposing a lower court ruling that required manufacturers to
warn about risks from products made by others. We have participated in cases
raising this same issue in several states, as plaintiffs seek to find
jurisdictions that are sympathetic to this aggressive theory of liability.
Court procedures can also provide an unfair advantage to
plaintiffs in complex litigation. The NAM recently submitted comments on
procedures of the Complex Litigation Center in Philadelphia, and on February
15 that court suspended the practice of consolidating dissimilar claims and
of using “reverse bifurcation,” whereby juries determine damages before
determining whether a defendant was liable for them. These procedures
prejudiced manufacturers and helped make Philadelphia a magnet jurisdiction
for plaintiffs’ attorneys and the American Tort Reform Association’s #1
Judicial Hellhole for two years. The court also addressed the problem of
out-of-state lawyers rushing to Philadelphia to litigate. They are now
limited to appearing in no more than two trials per year. More details are here.
One of our most difficult problems is getting the U.S.
Supreme Court to hear appeals of important issues affecting
manufacturers. Two cases in which we sought review were recently denied
– one involving the role of judges as gatekeepers to prevent junk science in the
courtroom, and the other involving pre-emption of suits against owners and lessors of
aircraft.
|
|
Environmental Law
In addition to the greenhouse gas cases awaiting decision,
the NAM filed our main brief on February 8 challenging EPA’s decision to take
over various state enforcement activities with respect to greenhouse gas
regulation. The agency acted rapidly at the end of 2010 to short-circuit the
normal three-year period that states have to submit State Implementation
Plans. Our litigation
challenges EPA’s action as ignoring Clean Air Act notice-and-comment requirements
as well as its own rules. The agency sought to coerce states to consent to
greenhouse gas regulation through the threat of a construction moratorium.
EPA’s 2008 ozone regulation is also still being challenged
in court. Although the litigation was on hold while the rule was under
reconsideration, that process is over, and the litigation has been
revived. The court recently issued a briefing schedule that will
conclude in August, and oral arguments will likely be scheduled for the fall.
The NAM will be filing a brief on April 17.
We are also supporting manufacturers in their efforts to
explore for oil in the Beaufort Sea in Alaska. A recent amicus brief
emphasized that the Outer Continental Shelf Lands Act was designed to
encourage expeditious exploration and production activities.
Government Mandated Speech
We are currently challenging two government-ordered poster
requirements. One is our suit against the
National Labor Relations Board (NLRB) for its requirement that all employers
post a notice of employee organizing rights in the workplace. The role of the
NLRB is to resolve disputes, not to mandate information requirements without
statutory authorization. Our case has been argued before a federal judge in
D.C., and we are awaiting the decision, expected shortly.
The other involves a requirement by San Francisco that
retailers of cell phones put up posters in their stores to advise consumers
about the supposed risks and steps consumers can take to avoid them. We
filed an amicus brief
in support of a suit challenging the requirement, arguing that mandated
speech on controversial topics can only be justified by a compelling
governmental interest and a regulation that is narrowly drawn to serve that
interest. Strict scrutiny by the courts is the appropriate standard of
review, and no merchants should have to convey a controversial message with
which they disagree and which is not factual. The city has less restrictive
alternatives to get its message out, such as putting up its own posters in
public places. The NAM opposes efforts by government to restrict or mandate
certain types of commercial speech.
BIDEN TELLS
ISU HE SEES GROWTH IN HIGH-TECH JOBS
Today in Manufacturing
Biden toured a high-tech engineering facility at Iowa
State, and called for reduced taxes for companies that bring operations from
other countries to the U.S. … continue
|
No comments:
Post a Comment