Federal Preemption

Preemption of State Regulation of Federally-Authorized Statements
Philip Morris USA, et al. v. Good, et al.
No. 07-562
Supreme Court of the United States

NCLC urged the Supreme Court to grant review to consider whether state-law challenges to FTC-authorized statements regarding tar and nicotine yields in cigarette advertising are preempted by federal law.  In its brief, NCLC made clear that, if allowed to stand, the First Circuit’s approach below would balkanize cigarette labeling, advertising, and promotion into a state-by-state endeavor.  Moreover, its approach would render the same results in many other facets of commercial life where a federal agency has authorized or approved the relevant rating or standard.

Amicus brief filed 11/28/07.

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Federal Preemption of State Efforts to Police Fraud on a Federal Agency
Warner-Lambert Co. LLC, et al. v. Kent, et al.
No. 06-1498
Supreme Court of the United States

NCLC urged the Supreme Court to clarify once and for all that the presumption against preemption simply does not apply to the analysis of whether state law conflicts with federal law.  By statute, Michigan law affords a pharmaceutical manufacturer complete immunity against a product liability action if it can demonstrate that the allegedly defective product at issue received the Food and Drug Administration’s approval. This statutory immunity does not apply, however, if the plaintiff can demonstrate that the manufacturer made any misrepresentations in the course of obtaining approval. The court below applied the presumption against preemption, finding that the Michigan statute did not conflict with federal law.  In addition to attacking the presumption against preemption’s place in conflict preemption analysis, NCLC also relied on the Court’s precedent in Buckman Co. v. Plaintiffs’ Legal Committee for the proposition that states are not permitted to police fraud on a federal agency.

Amicus brief filed 11/28/07.  Oral argument to be held 2/25/08.

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Federal Preemption of Arizona Immigration Statute
Arizona Contractors Association, et al. v.  Candelaria, et al.
No. CV 07-2496-PHX-NVW
United States District Court for the District of Arizona

NCLC joined a coalition of Arizona associations challenging the constitutionality of an Arizona law that interferes with federal law regulating the employment of undocumented workers.  The Arizona law imposes different liability and conflicting sanctions, including the revocation of business licenses, without an opportunity for a hearing, on employers who are deemed to have hired undocumented workers. The state also requires mandatory compliance with the E-Verify employment verification program, which is voluntary under federal law.  In the Complaint, filed against 15 county attorneys in addition to the state’s attorney general, NCLC challenges the Arizona statute as unconstitutional because it ignores employers’ due process rights and is preempted by federal law -- the Immigration Reform and Control Act -- which provides a comprehensive plan prohibiting the employment of illegal immigrants in the United States.

Complaint filed 12/9/07.  Motion for Temporary Restraining Order (TRO) and Preliminary Injunction filed 12/10/07.  Motion for Expedited Discovery filed 12/10/07.  Motion for Protective Order filed 12/10/07. Order Assigning Case to Judge Wake dated 12/10/07.  Order setting TRO hearing 12/13/07.  Consolidation Order dated 12/14/07. Defendants’ Response to Motion for Injunction Pending Appeal filed 12/18/07.  TRO hearing held 12/18/07.  Order denying TRO dated 12/21/07.  Plaintiffs’ Notice of Expert Designation filed 12/24/07.  Motion to Expedite Ruling on Motion to Strike filed 12/31/07.  Preliminary Injunction hearing set for 1/16/08. 

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Federal Preemption of Arizona Immigration Statute
Arizona Contractors Association, et al. v.  Napolitano
No. CV 07-1355-PHX-NVW
U.S. District Court for the District of Arizona

The District Court dismissed without prejudice the Chamber and other Arizona businesses’ lawsuit challenging Arizona’s immigration law.  The judge did not uphold the constitutionality of the law.  While the judge ruled that the mandatory E-Verify provisions of Arizona’s immigration law were likely unconstitutional, the judge believed that the parties sued the wrong defendants.  The judge believed that the proper defendants to the suit were the fifteen county attorneys charged with enforcing the law, instead of the Governor and Attorney General.  The parties will refile the lawsuit challenging the constitutionality of the Arizona law because it interferes with federal law regulating the employment of undocumented workers.

First Amended Complaint filed 8/8/07.  Motion for Preliminary Injunction filed 8/31/07.  Chicanos Por La Causa and Somos America's Complaint and Motion to Consolidate filed 9/4/07.  Government's Motion to Dismiss filed 9/10/07. Human Resource Initiative for a Legal Workforce's amicus brief filed 9/14/07.  Scheduling Conference held 9/14/07.  Plaintiffs' Supplemental Brief Regarding Issues not Raised in Motion for Preliminary Injunction filed 9/25/07.  Government's Motion to Dismiss Chicanos Por La Causa & Somos American Complaint filed 9/26/07. Chamber's Reply to Government's Opposition filed 10/3/07. National Federation of Independent Business amicus brief filed 10/5/07. Chicanos Por La Causa & Somos American's Reply to Government's Opposition filed 10/9/07.  Government's Response to Chamber's Reply to Motion to Dismiss filed 10/16/07.  Chamber's Reply in Support of Preliminary Injunction filed 10/19/07.  Joint Statement of Stipulated Facts filed 11/2/07. Preliminary Injunction hearing to be held 11/14/07. Decision 12/7/07. Plaintiff’s Motion for Injunction Pending Appeal filed 12/13/07.  Chicanos por La  Causa Motion for Injunction Pending Appeal filed 12/13/07.  Plaintiff’s  Notice of Appeal filed 12/13/07.  Order Denying Motion for Injunction Pending Appeal dated 12/21/07.

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Federal Labor Law Preemption
Chamber of Commerce of the United States of America v. Brown (formerly Lockyer)
No. 06-939
Supreme Court of the United States

The Supreme Court granted the Chamber’s petition for a writ of certiorari to review a Ninth Circuit decision holding that the California law prohibiting employers that annually receive more than $10,000 in state funds from using those funds ”to assist, promote, or deter union organizing” was not preempted by the National Labor Relations Act (NLRA).  A federal district court ruled in September 2002 that certain provisions of the California law were preempted by the NLRA; a three judge appeals court panel unanimously agreed in April 2004; the panel again supported preemption in a 2-1 ruling in September 2005, but was reversed by the full Ninth Circuit in September 2006.

Complaint for injunctive and declaratory relief filed 4/10/02.  District court decision 9/16/02. Appeal filed 1/10/03. Chamber's brief filed 5/23/03.  NLRB amicus brief supporting the Chamber's position filed 6/4/03.  Decision 4/20/04.  Petition for Rehearing and Rehearing en banc filed by Appellants 5/18/04.  Chamber's Answer to Petition for Rehearing on 6/30/04.  Order issued 5/13/05 granting Appellants' petition for a rehearing by the panel without oral argument and withdrawing the 4/20/05 decision. Decision 9/6/05.  Court sua sponte called for en banc review 9/16/05.  Responses from parties filed 10/25/05.  Decision 9/21/06.  Motion for Stay filed 10/5/06.  Order granting Stay of Mandate 11/20/06.  Application for Extension of Time to File Petition for a Writ of Cert. 12/7/06.   Application Granted 12/14/06.  Petition for a Writ of Cert. filed 1/5/07.  Call for the Views of the Solicitor General 4/16/07.  Solicitor General's invitation brief recommending grant of Cert. filed 10/19/07.  Cert. granted 11/20/07.

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Whether Decisions About Contract Validity Should Be Made By Arbitrators Or State Agencies
Preston v. Ferrer
No. 06-1463
Supreme Court of the United States

NCLC urged the Supreme Court to clarify that its decision in Buckeye Check Cashing v. Cardegna applies with equal force to state administrative agencies' decisions about contract validity when the contract includes an arbitration provision.  In Buckeye Check Cashing, the Court relied on well-established precedent to conclude that arbitrators-not courts-are empowered by the Federal Arbitration Act to resolve issues of contract validity when the validity of the arbitration provision itself is not at issue.  In this case, the state trial court held that, under California law, petitioner must first exhaust administrative remedies with the California Labor Commissioner before seeking relief from an arbitrator.  In its brief, NCLC argued that the FAA preempts California law and that decisions about contract validity should be made by arbitrators in the first instance.

Amicus brief filed 11/8/07.  Oral argument to be held 1/14/07.

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Federal Preemption of State Tort Law
Riegel v. Medtronic, Inc.
No. 06-179
Supreme Court of the United States

NCLC urged the Supreme Court to find that the Medical Device Amendments to the Food, Drug and Cosmetic Act preempts state law personal injury lawsuits where the device in question received premarket approval.  In this case, the plaintiff's husband died after a balloon catheter manufactured by the defendant ruptured during an angioplasty.  Because the catheter had been approved by the Food and Drug Administration ("FDA") pursuant to a rigorous premarket approval process, NCLC contended that personal injury lawsuits, which impose regulatory-like burdens of their own, conflicted with the considered judgment of the FDA and should be preempted.

Amicus brief on the merits filed 10/19/07.

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Federal Preemption of Local Regulation of Motor Carriers
New Hampshire Motor Transport Association v. Rowe
No. 06-457
Supreme Court of the United States

NCLC urged the Supreme Court to affirm the First Circuit's determination that Maine's effort to regulate motor carrier traffic where it involved the unknowing transport of tobacco products is preempted by the federal Motor Carrier Act and the Federal Aviation Administration Authorization Act. In its brief, NCLC stressed that motor carriers should not be required to deal with a patchwork of state regulations and that Congress addressed this concern by enacting uniform national regulation.

Amicus brief in First Circuit filed 12/27/05. Oral argument held 2/10/06.  Decision 5/19/06.  Amicus brief on merits filed 10/11/07.

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Federal Preemption of State Regulation of Pharmacy Benefit Managers (PBMs)
Pharmaceutical Care Management Association v. District of Columbia
No. 07-7062
U.S. Court of Appeals for the District of Columbia Circuit

NCLC urged the DC Circuit to overturn a district court decision upholding DC's AccessRx Act imposing a fiduciary duty on PBMs in their relationships with their customers and requiring PBMs to disclose financial information to clients.  PBMs function as intermediaries between the health care benefit providers and pharmaceutical manufacturers and pharmacies and negotiate reduced drug costs by contracting for rebates from manufacturers on bulk purchases.  NCLC argued that the DC statute is preempted by federal law because it directly relates to employee benefit plans under ERISA. Additionally, NCLC warned that the administrative burdens placed on PBMs in DC will ultimately increase the price of prescription drugs to customers.    

Amicus brief filed 10/2/07.

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FDA Preemption of Failure to Warn Lawsuits
Wyeth v. Levine
No. 06-1249
Supreme Court of the United States

Amicus brief filed 4/20/07. Call for views of the Solicitor General 5/21/07.

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NCLC urges the district court to strike down as unconstitutional a Hazleton, Pennsylvania ordinance designed to regulate the employment of illegal immigrants.  In its brief, NCLC argued that Hazleton's ordinance is unconstitutional because it ignores employers' due process rights and is preempted by federal law -- the Immigration Reform and Control Act (IRCA), which provides a comprehensive plan prohibiting the employment of illegal immigrants in the United States. The Hazelton ordinance deviates from the federal uniform framework by punishing employers for unknowingly hiring illegal immigrants, rewriting federal work authorization verification rules and conflicting with federal antidiscrimination statutes.

Amicus brief filed 3/5/07.

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Federal Labor Law Preemption

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Federal Regulatory Preemption of State Banking Laws   
Watters v. Wachovia Bank, N.A., et al.
No. 05-1342
Supreme Court of the United States

NCLC urges the Supreme Court to uphold a lower court ruling that regulations promulgated by the Office of the Comptroller of Currency preempt Michigan from exercising supervisory powers over a mortgage-issuing subsidiary of Wachovia Bank.  Urging the high court to reject the state's efforts to alter the legal framework governing regulatory preemption, NCLC argues federal preemption of state and local law -- which is supported by the Supremacy Clause of the U.S. Constitution -- is exceedingly common, highly beneficial to companies that operate in a national economy, and poses no threat to federalism.

Amicus brief filed 11/3/06.  Oral argument to be held 11/29/06. Decision 4/17/07.

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Federal Preemption of State Regulation of Foreign Affairs and Foreign Commerce

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Supreme Court Denies Review in InterstateTelecommunications Case
FreeEats.Com, Inc. v. North Dakota
No. 06-127
Supreme Court of the United States

The Supreme Court denied review of a North Dakota Supreme Court decision which concluded the state of North Dakota could freely regulate prerecorded interstate telephone calls.  However, in the Telephone Consumer Protection Act of 1991, Congress delegated to the Federal Communications Commission (FCC) the power to regulate interstate telephone calls and the FCC has issued a regulation governing the transmission of prerecorded telephone calls.  NCLC had filed a brief urging the Supreme Court to reaffirm the primacy of the federal role in regulating interstate telecommunications. 

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Federal Preemption of State Regulation of Pharmacy Benefit Managers (PBMs)
Pharmaceutical Care Management Association v. Rowe
No. 05-1297
Supreme Court of the United States

The Supreme Court denied certiorari in a case upholding a Maine law imposing a fiduciary duty on PBMs in their relationships with their customers and requiring PBMs to disclose financial information to clients.   PBMs function as intermediaries between the health care benefit providers and pharmaceutical manufacturers and pharmacies and negotiate reduced drug costs by contracting for rebates from manufacturers on bulk purchases.  NCLC argued that the Maine statute is preempted by federal law because it directly relates to employee benefit plans under ERISA.  Additionally, NCLC warned that the administrative burdens placed on PBMs in Maine will ultimately increase the price of prescription drugs to customers.

Amicus brief filed 05/12/06.  Cert. denied 6/05/06.

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Federal Preemption of Local Regulation of Motor Carriers
New Hampshire Motor Transport Association v. Rowe
No. 05-2136
U. S. Court of Appeals for the First Circuit

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Federal Preemption of County "Peace Agreement"
Metropolitan Milwaukee Association of Commerce v. Milwaukee County
No. 05-1531
U.S. Court of Appeals for the Seventh Circuit

Agreeing with NCLC, the Seventh Circuit held that a Milwaukee County ordinance is preempted by the National Labor Relations Act. The ordinance required certain County-paid transport and patient care contractors to enter into labor peace agreements. Contractors covered by the ordinance would have been required to provide the union with employees' names, addresses and telephone numbers and to give the union reasonable access to the workplace for the purpose of providing union information. This decision reverses a lower court ruling upholding the Milwaukee County ordinance.

Amicus brief filed 4/19/05. Oral argument held 9/12/05. Decision 12/05/05.

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FCC Preemption of Radio Frequency Tort Suits
Nokia v. Naquin
No. 05-198
Supreme Court of the United States

Rejecting NCLC request that it grant review and reverse, the Supreme Court declined to review the Fourth Circuit's decision that the Federal Communications Commission's radio frequency regulations did not preempt products liability claims challenging radio emissions from cell phones. In its amicus brief, NCLC argued that the plaintiffs' claims are barred under theories of express and implied preemption.

Amicus brief filed 10/3/05.  Cert. denied 10/31/05.

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Federal Preemption of State Regulation
Air Conditioning & Refrigeration Institute, et al. v. Energy Resources Conservation and Development Comm'n
No. 05-331
Supreme Court of the United States

The Supreme Court declined to review the Ninth Circuit's erroneous decision concerning federal preemption of energy efficiency labeling.  NCLC had argued in its brief that the Ninth Circuit's decision to employ a "presumption against preemption" even in the face of explicit congressional intent in the Energy Policy and Conservation Act (EPCA) to preempt state energy efficiency disclosure requirements improperly narrowed the preemption doctrine and invites state regulators to invent distinctions which Congress could not have anticipated.  Moreover, the Ninth Circuit's contention that the federal government had regulated in an area of traditional state concern is undermined by the fact that California did not enact its disclosure requirements until two years after the federal government had enacted the EPCA.

Amicus brief in support of cert. filed 10/14/2005. Court requested views of the Solicitor General 11/14/05.  Decision 6/26/06.

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FCC Preemption of Radio Frequency Tort Suits
Pinney v. Naquin
 No. 05-198
Supreme Court of the United States

Disagreeing with the Fourth Circuit's refusal to find that the Federal Communications Commission's radio frequency regulations preempt this case's products liability claims challenging radio emissions from cell phones, NCLC will request that the Supreme Court grant review and reverse.  NCLC will argue that the plaintiffs' claims are barred under theories of express and implied preemption.

Amicus brief to be filed 10/3/05.
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Federal Preemption of State Labor Law
Healthcare Association of New York State, Inc. v. Pataki
No. 05-2570-cv
U.S. Court of Appeals for the Second Circuit

 

NCLC urges the Second Circuit to affirm the district court's ruling holding that New York Labor Law § 211-a is preempted by the National Labor Relations Act under the principles established by Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission. Labor Law § 211-a prohibits employers from using state funds to assist, promote or deter union organizing. "Machinists" preemption precludes state and municipal regulations concerning conduct that Congress intended to be unregulated. NCLC further argues that while the district court correctly concluded that the state was not acting as a "market participant" when it enacted Labor Law § 211-a, the district court applied the incorrect "market participant" analysis, and, in doing so, improperly rejected the "market participant" analysis set forth by the Fifth Circuit in Cardinal Towing & Auto Repair v. City of Bedford.

Amicus brief filed 11/12/03.  Oral argument on motion to dismiss held 9/13/04.  Letter in support of objections filed by Plaintiffs filed 11/9/04.  Decision 5/17/05.

Notice of appeal filed by New York State 5/25/05.

 

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Ripeness and Preemption
Terminix Intl. Company v. Crotty, Commissioner of New York State Dept. of Environmental Conservation, et al.
No. 01 CIV 4463 (BDP)
U.S. District Court, Southern District of New York

 

The court dismissed Terminix's suit for lack of subject matter jurisdiction, and did not reach the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preemption issue.  Terminix had filed an action for declaratory judgment, claiming a New York State policy requiring pesticide applicators use "full label rate" in post-construction treatments is preempted by FIFRA.  The state argued that the matter is not ripe for review because it has not yet taken any enforcement action.  NCLC filed a brief in support of Terminix's motion for summary judgment, arguing that the issue is ripe and that New York's policy is preempted.

 

Amicus brief in support of motion for summary judgment filed 10/15/01.  Case dismissed 9/20/02.

 

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