NAM Legal Center

Without disclosure of third-party litigation funding (TPLF), courts and parties are in the dark about the impacts that funding arrangements have on their litigation. Here are the “6 Cs” of TPLF:     - Control: Non-parties may be exerting influence over litigation and settlement decisions; - Conflicts: There may be unknown conflicts of interest; - Cost: Courts cannot understand the “resources of parties” as required for evaluating the proportionality of discovery requests; - Consistency: Absent a federal rule overseeing disclosure, courts are struggling to handle disclosure requests with a variety of ad hoc practices, resulting in an unpredictable patchwork of approaches; - Correctness: Engaging in ex parte conversations regarding TPLF is not an appropriate or effective means to address the need for courts and parties to understand what third-party funding means to individual lawsuits, and; - Confidentiality: Courts and litigants need to be aware of contractual provisions that give access to private and proprietary information to non-parties. 

Registration is open for the 2025 Manufacturing Legal Summit! Make valuable connections, share best practices and discuss legal issues facing the industry at the event crafted exclusively for manufacturing attorneys. Register: https://lnkd.in/ehKckyXj

Amicus win! Last Friday, in In re: Zantac, the Delaware Supreme Court reaffirmed that allowing unvetted and cherry-picked data to enter the courtroom under the guise of expert testimony jeopardizes fairness in litigation. This crucial ruling realigns Delaware with federal law, recognizing the importance of consistent and reliable expert testimony particularly in mass tort litigations like this one. Check out more from Reuters: https://lnkd.in/eHeDdyVF

Amicus Win! Today, the Maryland Supreme Court agreed with the NAM and our coalition of leading business groups U.S. Chamber of Commerce, National Retail Federation and National Federation of Independent Business (NFIB) that small amounts of time that employees spend performing work-adjacent activities off the clock, like security checks, fall under the "de minimis" exception and are not compensable under Maryland law. This important ruling aligns Maryland with federal law and prevents a floodgate of class litigation against Maryland employers regarding when compensable work begins and ends. Check out our amicus brief: https://lnkd.in/eu2B8MDK

We are thrilled that SCOTUS granted cert today to address an important issue regarding access to federal courts for government contractors: whether, under the federal officer removal statute, a federal officer must direct a government contractor’s action that is the subject of a lawsuit to remove the case from state to federal court OR whether the action need only be “relating to” an action taken under federal direction. As we explained to the Court in our amicus brief supporting cert, most circuits have read the phrase “relating to” as requiring only a connection or association between an act taken under a federal officer and the subject matter of a suit, not strict causation, like the 5th Circuit did below. If the 5th Circuit’s decision stands, federal contractors may cease performing work for the federal government that is nationally important but locally unpopular (in this case, it was oil production to support the Allies in WWII). The case is Chevron USA Inc. v. Plaquemines Parish. Check out more from Politico Pro: https://lnkd.in/eu_2YhRq

We were thrilled to see the Third-Party Litigation Funding problem catch the attention of The Wall Street Journal's editorial board this week. As they note, funders pumped a whopping $15.2 billion in capital to U.S. commercial litigation, especially mass tort, IP and antitrust claims against manufacturers. We urge Congress to pass the Tackling Predatory Litigation Funding Act to end preferential tax treatment for funders. https://lnkd.in/dRKkFDB6

Today, the Supreme Court declined to address an important and unresolved question in class action litigation: whether a court can certify a damages class under Rule 23 if the class includes uninjured class members. Although we're disappointed in this outcome, Justice Kavanaugh’s dissent from dismissal provides a glimmer of hope: "Classes that are overinflated with uninjured members raise the stakes for businesses that are the targets of class actions. Overbroad and incorrectly certified classes threaten massive liability—here, with potential damages up to about $500 million per year. That reality in turn can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial." Read more from Bloomberg Law: https://lnkd.in/euY5fves

Last week's SCOTUS decision in Seven County Infrastructure Coalition, et al. v. Eagle Co., Colorado, et al, is a landmark victory for permitting reform. In limiting the scope of environmental reviews under the National Environmental Policy Act, the Court explained, "NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decision making, not to paralyze it.” We agree, and that's why we filed an amicus brief alongside American Petroleum Institute - Global Industry Services, National Association of Home Builders, National Mining Association and NRECA urging the Court to reach this result. https://lnkd.in/ebHu8Jz5

Yesterday, in a unanimous opinion, the U.S. Court of International Trade vacated President Trump’s worldwide "reciprocal" tariffs [announced April 2] and fentanyl tariffs against Mexico, Canada and China [announced Feb. 1] after concluding that the International Emergency Economic Powers Act (IEEPA) “does not authorize the President to impose unbounded tariffs.” The government has appealed the decision to the Federal Circuit and the case could ultimately make its way to the U.S. Supreme Court. In the meantime, the President has other statutes—Section 301, Section 232 or, as the CIT suggested to address trade deficits, Section 122—that he can and will rely on to impose tariffs. Read more from Reuters: https://lnkd.in/eF36c68Y

We applaud SCOTUS's cert denial in Apache Stronghold v. US which follows similar decisions by the district court, two 9th Circuit panels, and the full en banc 9th Circuit refusing to enjoin the Congressionally mandated land transfer for this import mining project.