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posted: 11/10/2013 6:28 AM

U.S. Chamber, other business groups set sights on state courts

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The Washington Post

WASHINGTON -- The U.S. Chamber of Commerce is increasingly turning to state courts to press its members' business interests, weighing in on everything from trucking operations to New York's "soda ban" as it tries to build on its winning record at the U.S. Supreme Court and other federal courts.

The Chamber is the most prominent of several major Washington-based business groups, including the National Association of Manufacturers (NAM), that have trained their attention on state courts. When the groups jump in -- most often with friend-of-the-court briefs -- they can raise issues that go beyond the details of the particular case and provide input about related developments in other places, lawyers for the groups said.

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And while state courts are the end of the road for most cases, their decisions can carry weight elsewhere, even if they are not legally binding.

"Getting involved in cases at the state level can have implications beyond that state," said Kate Comerford Todd, vice president of the Chamber's litigation arm, the National Chamber Litigation Center. "Other parties in related cases watch what happened, and so do some courts."

Around the country, the Chamber is pressing a range of issues with potentially broad implications for businesses and consumers, including wage and hour laws, energy and environmental regulation, arbitration, and product liability.

This year, the group has already filed amicus briefs in 25 percent more state court cases than in all of 2012, a Chamber spokeswoman said.

Lawyers who often oppose the Chamber say they have not yet noticed much impact from its decision this year to become more active at the state level. But they are watching closely.

"It's a very scary and disturbing trend," said Arthur Bryant, executive director of Public Justice, a public-interest law firm, noting that "the vast majority of personal-injury litigation in this country is going on in state courts."

Bryant pointed to the heavy spending on state judicial elections by the Chamber and its local affiliates as one way it already has gained influence in state courts. And he noted the group's record at the Supreme Court; the Chamber filed 18 amicus briefs during the court's last term and was on the winning side in 14, according to a study by the Constitutional Accountability Center.

"It's already paid off for them at the U.S. Supreme Court," Bryant said. "And they're going to try it more. Why not expand it and build a farm team?"

NAM's heightened involvement in state courts is part of a broader push the group announced this fall to increase its legal work.

"There's a lot of important activity going on in the states," said Linda Kelly, NAM's general counsel and head of its new Manufacturers' Center for Legal Action. Cases in New York and California can be particularly significant in shaping the regulations that companies face.

On Nov. 13, for example, New York's highest court is scheduled to hear arguments in a case brought by Marlboro smokers who want Philip Morris to pay for regular testing to monitor whether they get cancer. The Chamber, the manufacturers association and several other business groups have filed a brief in the case, hoping to persuade the court to reject the demand for medical monitoring.

In addition to addressing the details of the New York case, they argue a broader point in their court filing, warning that a ruling favorable to smokers "would create a flood of litigation, greatly expand potential tort liability, and turn New York into a magnet jurisdiction for medical monitoring claims given that the majority of other State high courts have rejected such claims."

In mid-October, the same court said it would hear New York Mayor Michael Bloomberg's appeal of a ruling that struck down the ban on large sugary drinks that he championed. The Chamber led a large business coalition that backed the challenge to the law and filed a brief in that case, too.

The legal arguments in the case are "inside New York baseball," said Sheldon Gilbert, a lawyer with the Chamber's litigation center. "But whether or not that type of regulation is legitimate is a broader question, one we focus on in our brief."

The Chamber and NAM generally rely on outside lawyers to draft their briefs, but both have recently increased the number of attorneys on their own staffs. (Kelly used to work at the Chamber's Institute for Legal Reform, an advocacy group that spent more than $31 million on lobbying last year.)

The manufacturers group is "building a war chest" to fund its work, Kelly said. NAM is becoming involved in more cases and widening the range of topics it tackles, expanding the focus from labor and environmental issues to trade, product liability, intellectual property and other areas, she said.

As with the Chamber, NAM's main focus is what it says is overregulation, which they blame, at least in part, on the gridlock in Congress.

"Regulatory agencies are, to a certain degree, taking advantage of the congressional impasse to pursue an aggressive agenda," Kelly said.

The activities of the Chamber's litigation center, a nonprofit affiliate, remain modest compared with those of the lobbying wing. But Chamber President Thomas Donohue announced at the start of this year that the litigation center would "significantly expand" its work.

In an exception to its usual practice, the center is directly involved in a case the Supreme Court will hear during its current term, representing a Washington state Pepsi bottler in its constitutional challenge to President Barack Obama's appointment of three members of the National Labor Relations Board while the Senate was on a break.

Donohue was blunt when he spoke to reporters last month about the Chamber's approach to regulation. The group works on Capitol Hill, pushing legislation to counter overregulation, he said, and it works with federal agencies to shape regulations as they are being drafted.

"And when all else fails, sue 'em!" Donohue said.

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