NCLC Business Alert

April 12, 2007

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NCLC News

NCLC's Robin Conrad has been promoted to executive vice president. Robin first joined NCLC in 1983 as environmental counsel and assumed the position of director of litigation in 1985. Five years later Robin was named vice president and in 1998 was made senior vice president by Chamber President Tom Donohue. Under her leadership, NCLC's caseload has increased to an all-time high, in number of cases, scope of issues, and amount of party litigation filed annually. Chief among Robin's litigation accomplishments are developing NCLC's non-labor docket--which now constitutes more than 75% of its caseload--creating its moot court program, stepping up its Supreme Court practice, and taking a more strategic approach to shaping the law in areas such as punitive damages, class actions, and securities litigation. Before joining the Chamber, Robin was an attorney/advisor at the U.S. Environmental Protection Agency, which awarded her the agency's Gold Medal for Exceptional Service.  

Committee Member Update

Michelle H. Browdy, vice president and assistant general counsel, litigation, for IBM Corporation, has joined NCLC's Constitutional & Administrative Law Advisory Committee. Ms. Browdy is responsible for overseeing IBM's litigation around the world, including intellectual property litigation, antitrust/competition, employment, securities litigation, class action suits, commercial litigation and the like. Before joining IBM, Ms. Browdy was a partner with the law firm Kirkland & Ellis, LLP in Chicago, and prior to that served as a law clerk to the Honorable Randall T. Shepard, chief justice of the Indiana Supreme Court.

Recent Decisions

Supreme Court Rules in Favor of Expanding EPA Regulatory Authority
On April 2, 2007 the Supreme Court ruled 5-4 in Commonwealth of Massachusetts v. United States Environmental Protection Agency that the Clean Air Act (CAA) authorizes the EPA to regulate carbon dioxide and other greenhouse gas (GHG) emissions from new motor vehicles. In so doing, the court rejected arguments advanced by NCLC and other members of the CO2 litigation group, a coalition of industry associations which had intervened in support of EPA's position that Congress did not delegate to the agency the authority to regulate GHGs for climate change purposes, and even if it had, that EPA properly exercised its discretion not to regulate. As an intervenor, NCLC pointed out that neither the structure of the statute nor recent decisions of Congress support such a global regulatory program.

Supreme Court Rules for EPA in Emission Restrictions and Clean Air Act
In Environmental Defense, et al. v. Duke Energy Corp., et al. the Supreme Court ruled April 2, 2007 against NCLC and upheld the Environmental Protection Agency's view that changes in power plants that may contribute to air pollution must be done with a permit if there is an annual increase in emissions. In its brief, NCLC argued that Duke Energy's plan to modernize its electric utility plants did not need to be submitted to the government pursuant to the Clean Air Act's New Source Review process (NSR) because no major modification of Duke Energy's permitted operations had occurred. At issue was whether hourly or annual emissions represent the baseline for determining whether NSR governs a particular plant modernization. NCLC argued that if the Supreme Court did not affirm the lower court's decision, hundreds of commonplace modernization activities would have to undergo NSR analysis even if their hourly emission rates are unchanged and stay below permit levels that already have been approved.

Judge Dismisses Lawsuit against Wal-Mart Alleging Poor Foreign Labor Conditions
On April 6, 2007, in Doe v. Wal-Mart Stores, Inc., U.S. District Court Judge Andrew J. Guilford rejected claims that Wal-Mart was responsible for the working conditions of its suppliers' factories in China, Bangladesh, Indonesia, Swaziland, and Nicaragua. The judge also threw out allegations that Wal-Mart violated California Business and Professional Code section 17200 for advertising it only was using responsible suppliers, and the federal Alien Tort Statute for aiding and abetting foreign supplier misconduct. In its brief, NCLC argued that the Constitution assigns the responsibility to resolve such issues to the executive and legislative branches of the federal government, and therefore the plaintiffs' claims are preempted under established Supreme Court precedent.

Other

Appeals Court Stays OSHA Personal Protective Equipment Case 
On April 5, 2007, the U.S. Court of Appeals for the District of Columbia Circuit issued an order holding in abeyance a lawsuit filed against OSHA pending the issuance of rules regarding personal protective equipment (PPE). In January, the AFL-CIO and United Food and Commercial Workers International Unions filed a petition for writ of mandamus compelling OSHA to issue a rule requiring employers to pay for nearly all personal protective equipment in In re: AFL- CIO and United Food and Commercial Workers International Unions. NCLC filed a responsive amicus brief outlining the serious negative consequences the proposed rule could have on employers' existing methods of purchasing and distributing personal protective equipment, collective bargaining relationships, and day-to-day management of the workplace. In response, the Department of Labor filed a motion requesting the case be held in abeyance because OSHA plans to promulgate a revised PPE standard in November 2007  The Court of Appeals granted that motion on April 5, 2007.

New Filings:

NCLC Urges Texas Supreme Court to Dismiss Out-of-State Asbestos Case 
NCLC filed an amicus brief April 10, 2007 in In re: General Electric Corporation, et al., urging the Texas Supreme Court to dismiss under the doctrine of forum non conveniens an asbestos case brought by a Maine plaintiff who has no contacts with Texas. In what is believed to be the first opinion of its kind, the Texas asbestos multi-district litigation judge said the case should be heard in Texas because the federal court system is an inadequate forum. The state high court recently decided to stay the court proceedings. In its brief, NCLC argued that the high court should grant the defendant's mandamus petition to hear the case, enforce the letter and sprit of the Texas forum non conveniens statute, and dismiss the case.

Amicus brief    

NCLC Urges Supreme Court to Uphold Lower Court Ruling Affirming Potentially Responsible Parties Right to Seek Money for Superfund Sites
On April 5, 2007, NCLC filed an amicus brief in United States v. Atlantic Research Corp., urging the high court to affirm the lower court's ruling recognizing the right of potentially responsible parties (PRP) to seek contribution under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, PRPs have the right to collect from those other parties their equitable shares of cleanup costs at environmentally contaminated sites. In its brief, NCLC argued that the high court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., which held that PRPs may not seek contribution under Section 113 until they have been sued under CERCLA, will force many PRPs to bear the full burden of those cleanups already underway while other PRPs would escape liability, and would jeopardize future cleanups.   

Amicus brief

NCLC Urges High Court to Review Punitive Damages Liability Case against Ford
NCLC urged the Supreme Court on April 4, 2007 to review a punitive damages award (initially for $246 million but later reduced to $75 million) imposed on the company despite its compliance with federal safety standards. In its brief in Ford Motor Co. v. Buell-Wilson, NCLC opposed the imposition of punitive damages liability where the relevant federal agency had approved the design of the faulted vehicle. NCLC argued that Ford complied with all relevant federal safety standards and therefore could not have exhibited the required reprehensible conduct which normally would support the award of punitive damages. 

Amicus brief

NCLC Urges State Supreme Court Review of Tobacco Class Certification Decision
NCLC urged the Louisiana Supreme Court on April 2, 2007 to grant review of the intermediate appellate court's erroneous decision in Scott et al., v. American Tobacco Co., et al. to permit certification of a class even though plaintiffs had significant individualized issues regarding reliance on the defendants' alleged fraud which could not be resolved by class litigation. The intermediate appellate court dispensed with the commonality requirement of showing reliance by finding that the remedy sought was for a common fund. In its brief, NCLC made clear that a common fund remedy does not abrogate the commonality requirement in federal or Louisiana courts. In addition, NCLC explained that loosening class certification rules in Louisiana would serve as a magnet for the plaintiffs' bar to overburden Louisiana courts with abusive class actions.

Amicus brief