Tortification of Contract Law

Constitutionality of Ohio Tort Reform Act
Arbino v. Johnson & Johnson, et al.
No. 06-1212
Ohio Supreme Court

Agreeing with NCLC, the Ohio Supreme Court affirmed the constitutionality of Ohio's tort reform law.  Plaintiff charged that Ohio's legislature violated the separation of powers by intruding on the judiciary's historic province to articulate the common law of torts.  In its brief, NCLC countered that this judicial power was delegated to it by the legislature at Ohio's founding and that the legislature continues to have the power to enact tort law.

Amicus brief filed 12/15/06. Decision 12/27/07.

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Corporate and Aiding and Abetting Liability under the Alien Tort Statute
Presbyterian Church of Sudan v. Talisman Energy, Inc.
No. 07-0016
United States Court of Appeals for the Second Circuit

Urging the court to affirm dismissal of Alien Tort Statute claims against a Canadian corporation for conduct occurring in Sudan, NCLC explained to the Second Circuit that customary international law does not provide for civil liability under aiding and abetting nor does it provide for corporate liability.  Moreover, NCLC pointed out that the Supreme Court concluded in Central Bank of Denver v. First Interstate Bank of Denver that Congress must clearly authorize such aiding and abetting liability.  No such clear evidence exists for the Alien Tort Statute.

Amicus brief filed 5/8/07.

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Constitutionality of Ohio Tort Reform
Groch, et al. v. General Motors Corp.
No. 2006-1914
Supreme Court of Ohio

NCLC urged the Ohio Supreme Court to reject the plaintiffs' bar's latest attempt to undo Ohio's much-needed enactment of tort reform.  The plaintiffs in this case contend that the legislature invaded the province of the judiciary by modifying common law by statute.  However, as NCLC explains in its brief by canvassing 18th century reception statutes, the legislature merely delegated the power to create tort law to the judiciary; it did not in any way relinquish its authority to vacate that delegation or to override judge-made common law.

Amicus brief filed 4/16/07.

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Agent Orange and Alien Tort Statute
Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical, et al.
No. 05-1953
U.S. Court of Appeals for the Second Circuit

NCLC asked the Second Circuit to uphold a district court's dismissal of claims brought by Vietnam nationals against U.S. corporations under the Alien Tort Statute (ATS) for harm suffered from the defoliant Agent Orange during the Vietnam War.  The district judge reached the right result in dismissing the cases, but improperly opined on corporate liability under ATS and time limits for filing suits inconsistent with the Supreme Court's opinion in Sosa v. Alvarez-Machain.  Because the plaintiffs cannot find their cause of action in international law or federal statutory law, they are asking U.S. courts to create a federal common-law cause of action for damages. NCLC noted in its brief that ATS lawsuits have the potential to cause diplomatic friction between governments, as well as stifle trade and foreign investment.

Amicus brief filed 2/15/06.  Oral argument held 6/18/07.

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Contracts and Tort Liability
City of Hope v. Genentech, Inc.
No. S129463
California Supreme Court

The California Supreme Court granted review to consider whether the assignment of rights to intellectual property makes the assignee a fiduciary of the assignor with consequent liability for punitive damages. In its brief, NCLC argued that turning businesses into fiduciaries for each other does not comport with modern understandings of contract law and imposing such a rule would impede technological development.

Amicus brief filed 1/27/06.

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Venue Reform Statutes and the Privileges and Immunities Clause
Crown Equipment Corporation v. Morris
No. 06-503
Supreme Court of the United States

The Supreme Court denied review of the West Virginia Supreme Court of Appeals decision to strike down a legislative attempt to curb forum shopping in plaintiff-friendly West Virginia courts.  NCLC filed a brief requesting that the Supreme Court grant review to consider whether the Privileges and Immunities Clause of the U.S. Constitution bars the West Virginia legislature from rejecting attempts by out-of-state plaintiffs to clog its courts with cases having no connection to the state.  Canvassing similar efforts by other state legislatures across the county, NCLC explained that these legislative efforts are akin to the judicially created, and well-established, doctrine of forum non conveniens, the legitimacy of which has been thrown into doubt by the decision below.

Amicus brief filed in support of Cert on 11/20/06.  Cert. denied 12/11/06.

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Contract Recovery and the Economic Loss Rule
Robinson Helicopter Company, Inc. v. Dana Corporation
No. S114054
Supreme Court of California

The California Supreme Court overturned an intermediate appellate court and rejected NCLC's argument that the proper application of the economic loss rule bars attempts to circumvent limits on contract recovery in a case involving an ordinary breach of contract, where plaintiffs recast their contract claims as negligent or intentional torts.  The Court held that Dana breached a "separate" duty, and thus could recover in tort, in issuing certificates of conformance for its clutches.

Amicus brief in support of Defendant-Respondent filed 11/3/03.  Decision 12/23/04.

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Tort Law and Undercover Investigations in the Workplace
Earnest Johnson v. Kmart Corporation and Investigative Consultants, Inc.
No. 89037
Illinois Supreme Court
 
NCLC argued that the tort of "intrusion upon the seclusion of another" should not be expanded to incorporate an employer's investigation to combat employee crime.  NCLC further argued that expanding tort law to include such investigations infringes upon an employer's legitimate business interest in eradicating employee theft and substance abuse, at a significant cost to industry, employees, and consumers.
 
Amicus brief filed 6/9/00.  Statement regarding the current status of the bankruptcy stay entered in the case ordered 6/26/03.  Statement regarding the current status of the bankruptcy stay entered in the case due 7/28/03.  Joint motion to dismiss appeal granted 3/17/04.

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