Regulatory and Legal Reform

Washington, D.C. – A U.S. District Court judge has placed Institutional Shareholder Services’ lawsuit against the Securities and Exchange Commission in abeyance pending the outcome of the SEC’s recently announced review of its proxy firm rule. ISS is seeking to overturn a National Association of Manufacturers–supported rule that protects investors by enhancing transparency and accountability for so-called “proxy advisory firms.”

The court’s order comes on the heels of Chairman Gary Gensler’s directive to SEC staff to review the proxy firm rule and the Division of Corporation Finance’s announcement that it will not recommend enforcement action to protect businesses and investors from the firms’ errors and conflicts of interest while said review is ongoing.

“We are disheartened by the SEC’s decision to abandon its defense of these vital reforms just days before a federal judge was to hear oral arguments outlining—as detailed by both the NAM and the SEC over the past several months—why this lawful, reasonable and minimally burdensome rule must be upheld,” said NAM Senior Vice President and General Counsel Linda Kelly. “Although the case is currently stayed, the Manufacturers’ Center for Legal Action will continue to represent manufacturers’ interests—including by calling out any efforts to bypass the required notice-and-comment process to keep this lawfully issued rule on ice indefinitely.”

The NAM will continue to engage directly with the SEC during its ongoing review, as it did throughout the years-long rulemaking process that led to the final rule.

“The NAM championed the SEC’s efforts to bring appropriate oversight and transparency to proxy advisory firms, and manufacturers strongly oppose any efforts to rescind the rule’s critical reforms, which protect the interests of manufacturing workers,” said NAM Senior Vice President of Policy and Government Relations Aric Newhouse. “This rule was developed following years of debate and multiple rounds of public comment, and there is no justification for repealing it less than a year after finalization, without any chance for its vital investor protections to take effect and be fairly evaluated. If the SEC does decide to move forward, any changes must be proposed via notice-and-comment rulemaking with robust opportunities for the public to weigh in on the SEC’s new approach.”

Background:

In October 2020, the NAM filed a motion to intervene in ISS v. SEC, followed by a motion for summary judgement outlining why the SEC’s lawful, reasonable and minimally invasive rule must be upheld. The NAM has long advocated for increased oversight of proxy advisory firms—little-known, unregulated entities that exert enormous influence over publicly traded manufacturers. These firms have significant conflicts of interest and issue error-filled, one-size-fits-all proxy voting recommendations that can impact the direction of a business and the value of investors’ shares. In July 2020, the SEC issued final regulations limiting proxy firms’ outsized influence, a move NAM President and CEO Jay Timmons called a “long-sought, major win for the industry and millions of manufacturing workers.”

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.3 million men and women, contributes $2.35 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit nam.org.

Spring is the season of SCOTUS, when the court releases its most important decisions for the year. This year, the NAM is awaiting decisions on a number of cases in which it participated as an amicus—a “friend of the court”—and has already received one significant victory: a ruling in favor of energy companies on a procedural issue regarding climate lawsuits.

We spoke to two of the NAM’s legal experts—Vice President of Legal and Deputy General Counsel Patrick Hedren and Senior Litigation Counsel Erica Klenicki—to get the overview of this busy season for the NAM’s Manufacturers’ Center for Legal Action.

Energy victory: The court ruled in favor of the energy companies in a suit brought against them by the city of Baltimore. As Hedren puts it, the case hinged on a “wonky procedural issue,” but the crux was this: where should nationwide issues be litigated, particularly if the federal government played some role?

• The energy companies and the NAM argued that climate change is just such a nationwide and even global issue and simply cannot be decided by state courts. The nature of the issue makes access to federal courts paramount.
• SCOTUS’s ruling didn’t address the underlying climate concerns, but it did provide easier access to federal courts for these types of disputes, say Hedren and Klenicki.

Class actions: The NAM is awaiting the Supreme Court’s decisions on several other cases in which it participated, including TransUnion LLC v. Ramirez, which deals with a key issue for large manufacturers and other companies: class-action lawsuits.

• As the NAM’s legal team notes, these cases are often brought by attorneys looking for a payday, even when the vast majority of the “class” in question, though technically affected, was not really injured.
• That’s what happened in this case. The class included people whom TransUnion mistakenly identified as potential matches for individuals on the Treasury Department’s terror watch list, which could have resulted in denials of loans.
• Though the lead plaintiff did allegedly suffer harm due to this error, most of the 8,000-plaintiff class were entirely unaware of the error. The company had fixed its mistake before those plaintiffs were harmed.

To put it simply, the rules for class actions are far from clear, say Hedren and Klenicki. The courts often award damages or settlement money to uninjured people who could not have brought a case on their own. And the only winner in this system is the plaintiffs’ bar. That’s why the NAM is asking SCOTUS to clarify the rules for bringing a class action and ensure that trial courts are applying rigorous standards before certifying a class.

Free speech: The NAM is also awaiting the court’s decision on Americans for Prosperity Foundation v. Becerra, a case concerning whether the government can force an organization to disclose the identities of its donors. While the NAM doesn’t have donors, it does have a keen interest in keeping its member list confidential. If all such lists had to be released, it would “chill free speech,” say Hedren and Klenicki.

Following suit(s): Lastly, the NAM team is asking the court to hear several other cases during its next term, including:

• Miller v. CH Robinson Worldwide, Inc. In this case, the plaintiff was injured by a truck belonging to a small company, yet was allowed to sue the freight broker that hired the trucking company, too—despite a federal law that preempts those kinds of suits. The NAM is asking SCOTUS to consider the case so it can put commonsense limitations on liability.
• City of Oakland, et al. v. Chevron Corp., et al.: This case is very similar to the energy case mentioned above.

The last word: Hedren explains why the NAM’s involvement in our nation’s highest court is so important: “The Supreme Court really values the manufacturing sector’s perspective, in part because bad decisions in a single lower court can have ripple effects across the whole economy. The NAM pays close attention to those cases that might really change—for better or worse—the way the sector operates, or that might open the door for crafty lawyers to abuse the court system. If we’re not out there fighting for better legal policy, we’ll face a legal system increasingly tilted in favor of game-playing and abuse.”

Washington, D.C. – Following President Joe Biden’s announcement on the 2030 greenhouse gas pollution reduction target, National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“Climate change is an issue our generation must tackle. Like past generational challenges—world wars, the space race, the COVID-19 response and vaccine development—manufacturers will lead the way and ensure our country emerges stronger. After all, it is manufacturers who will make the needed products and technologies—clean energy, carbon capture, batteries, microgrids, efficiency, advanced vehicles and more.

“The President’s goal is bold, to be sure. But when have Americans ever been timid in the face of difficulty? We look forward to learning more specific details of the administration’s plan, and manufacturers are ready to work with policymakers on both sides of the aisle to achieve success for our nation and world. As we explain in ‘The Promise Ahead,’ manufacturers’ plan for taking action on climate, we believe that a unified federal policy combined with an equitable and enforceable international agreement is key.

“Meeting President Biden’s ambitious pledge will require manufacturing might and innovation, which means we will also need policies that keep manufacturing strong and competitive—historic infrastructure investment; a tax code that continues to promote investment, job creation and research and development; a diverse and reliable energy supply; incentives for workforce development; and more opportunities to export our innovative products and technologies to other countries. And as manufacturers rise to meet this challenge, the rest of the economy will prosper because for every $1.00 spent in manufacturing, another $2.79 is added to the economy—the highest multiplier effect of any economic sector.

“Manufacturing holds the key to solving this global challenge. Confronting climate change will not be easy. But with the right policies, it is neither the first nor the last challenge that manufacturing ingenuity will solve.”

Background: Today, President Biden announced a new target for the United States to achieve a 50–52% reduction from 2005 levels in economy-wide net greenhouse gas pollution by 2030, building on progress to date and by positioning American workers and industry to tackle the climate crisis.

Earlier this year, the NAM released “The Promise Ahead,” its policy roadmap on addressing climate change.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs 12.3 million men and women, contributes $2.33 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Manufacturers across many sectors were surprised in recent weeks by a ban on products containing a chemical called PIP (3:1), which was slated to go into effect after March 8, 2021. Due to the incredibly short compliance window and because PIP has not been regulated elsewhere in the world, it is a major challenge even to identify its potential presence in supply chains.

The sudden ban could have caused significant disruption in the manufacturing industry and snarled the economic recovery, NAM Vice President of Energy and Resources Policy Rachel Jones tells us. Here’s what you need to know.

Why it matters:  While there is no PIP chemical manufacturing in the United States, it can be found in a broad array of components that are used in electronics; robotics and manufacturing equipment; gaskets, clamps, tubes, harnesses, cables and casings; and in many other applications for flame retardant purposes. The ban would have a serious impact on manufacturers in the United States, forcing them to scrutinize every component of their supply chains for PIP, rework manufacturing processes and find new materials in an impossibly short timeframe.

The COVID-19 angle: Many of the products that would be impacted by this rule are being used to conduct research into COVID-19, whether that involves an examination of COVID-19 variants or developing, producing, storing and distributing COVID-19 vaccines. If this rule goes forward without being fixed, some of these products could become unavailable at a time when they are needed most.

What we did: The consensus from some experts was that changing the Biden EPA’s approach on this matter was a futile effort. But the NAM pressed forward and asked the EPA to issue a “no action assurance” for downstream manufacturers until the PIP rule can be amended to include a reasonable compliance timeframe. At the same time, the NAM moved forward in court to preserve relief options and to ensure that manufacturers affected by the rule can be made whole.

The results: After the NAM’s intervention, the EPA announced a 180-day “No Action Assurance” and opened a new 60-day comment docket to reexamine the rule. The NAM will continue to work with the EPA to find a reasonable approach that supports manufacturers and upholds critical standards.

The last word: Jones says, “When manufacturers are willing to speak up on challenging issues, we can solve complex problems. I have zero doubt that EPA’s extraordinary action was in response to our work with many NAM members and collaborative solutions-focused advocacy. While we celebrate this important interim victory, it is only a 180-day window of relief and manufacturers need more time.”

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement after President Joe Biden signed an executive order on supply chains.

“Manufacturers have led the nation’s response to COVID-19 by ramping up production of critical supplies, developing treatments and vaccines and continuing to produce the essentials for daily life. But the pandemic has also exposed serious challenges facing supply chains and the serious consequences when they are disrupted. We are encouraged to see that the Biden administration is taking action to address these challenges. Last year, the NAM released policy proposals for ‘Strengthening the Manufacturing Supply Chain,’ and our plan can continue to serve as a roadmap as we move forward while ensuring that we do not close off access to critical components or resources that our lifesaving and life-changing products require.

“The administration’s goal of increasing manufacturing investment in the United States is one we share. And their focus on key sectors, like the pharmaceutical manufacturers whose incredible innovation is saving lives and arming us against COVID-19, will help us emerge stronger from this crisis. We look forward to working with the Biden administration to bolster supply chains and create new job opportunities in America.”

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.3 million men and women, contributes $2.32 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement on the Biden administration’s use of the Defense Production Act:

“Manufacturers have consistently advised the federal government that the Defense Production Act is most productive if deployed in a way that fosters partnership and provides incentives—rather than imposing demands or punitive measures.

“With this announcement, the Biden administration is demonstrating that they have listened to manufacturers and are seeking a true partnership in defeating COVID-19.

“These measures will strengthen our ability to continue providing the treatments and vaccines that we need to save lives, the equipment we need to protect frontline workers and the food and supplies that families need for their everyday lives. Manufacturers stand ready to continue doing our part.

“We will also continue to set the standard for safe behaviors—wearing masks, social distancing, washing hands and, when able, getting vaccinated.”

Background: In December 2020, the NAM sent a letter to members of the Biden COVID-19 Advisory Board, providing manufacturers’ insights on constructive uses of the DPA.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.3 million men and women, contributes $2.32 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement on President Joe Biden’s executive orders aimed at combatting COVID-19:

“Manufacturers commend the Biden administration for their laser focus on defeating the pandemic and for treating COVID-19 with the seriousness it deserves. Manufacturers stand ready to continue doing our part—from keeping workplaces and communities safe to providing the food, supplies, vaccines and treatments needed to sustain life. We will also continue to set the standard for safe behaviors—wearing masks, distancing, washing hands and, when able, getting vaccinated.

“A smart, targeted partnership between the administration and manufacturers can shape the use of the Defense Production Act to maximize its potential and effectiveness. Leveraging government purchasing power and investment to increase the production of personal protective equipment, vaccines and other critical supplies while collaborating with manufacturers that are eager to contribute in every way possible can help us all achieve the goals outlined today.

“A similar approach is necessary from OSHA as well. Manufacturers’ highest priority remains the health and safety of our teams, families and communities. Throughout the pandemic, we have set the standard in developing protocols to provide workers with facilities free from hazards and to safeguard their operations. What manufacturers need now is clear, science-based information on how COVID-19 spreads, and any rules or standards should provide the flexibility necessary for companies to implement health protocols tailored to the unique circumstances of their shop floors and work environments.

“We look forward to continuing to be a source of information and insight for the Biden administration as we work to unite the country around a successful strategy to save lives and rebuild the economy.”

Background:

In April 2020, the NAM released its “American Renewal Action Plan,” which outlined policy recommendations to combat COVID-19 and spur economic growth.

In December 2020, the NAM sent a letter to members of the Biden COVID-19 Advisory Board, providing manufacturers’ insights on constructive uses of the DPA.

In January, the NAM sent a letter to Labor Secretary nominee Marty Walsh outlining manufacturers’ views on OSHA’s approach to COVID-19 safety protocols.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.3 million men and women, contributes $2.32 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org

Washington, D.C. – The National Association of Manufacturers called on President-elect Joe Biden to help ensure the future strength of manufacturing in America by extending key executive orders into the new administration and rescinding those that have harmed manufacturing.

“For decades, we have worked with policymakers from across the ideological spectrum to craft policies that encourage the growth of manufacturing in the United States,” said NAM President and CEO Jay Timmons in a letter to the incoming administration. “Now more than ever, America needs leaders in Washington who are focused on increasing American jobs, wages and investment.”

The letter outlines executive orders that have had a significant impact, positive or negative, on manufacturers over the past four years, and it urges the president-elect “to reverse the most harmful of these orders and keep or expand those that create an environment that is conducive to growing America’s manufacturing sector.”

The NAM’s recommendations will help manufacturers continue to respond to the devastating pandemic and will also power the United States’ economic recovery by setting the stage for manufacturing growth.

To read the full letter, click here.

Background:

The NAM has requested President-elect Biden repeal the following executive orders and consider executive orders for extension.

Executive Orders

Rescind:

• “Rescission of the Deferred Action for Childhood Arrivals Program”
• E.O. 13950 – “Combating Race and Sex Stereotyping”
• E.O. 13672 – “Revocation of Federal Contracting”
• E.O. 13769 – “Protecting the Nation from Foreign Terrorist Entry into the United States”
• “President’s Report to Congress on the Proposed Refugee Admissions for FY 21”
• Presidential Proclamation 10052 – “Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”
• E.O. 13944 – “Ensuring Essential Medicines, Medical Countermeasures and Critical Inputs Are Made in the United States”
• E.O. 13948 – “Lowering Drug Prices by Putting America First”
• E.O. 13957 – “Creating Schedule F in the Excepted Service”

Extend:

• E.O. 13771 – “Reducing Regulation and Controlling Regulatory Costs”
• E.O. 13805 – “Establishing a Presidential Advisory Council on Infrastructure”
• E.O. 13766 – “Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects”
• E.O. 13845 – “Continuing the President’s National Council for the American Worker and the American Workforce Policy Advisory Board”
• E.O. 13932 – “Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates”
• E.O. 13777 – “Enforcing the Regulatory Reform Agenda”
• E.O. 13806 – “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States”
• E.O.s – “Strengthening the Federal Government’s Anti-Counterfeiting Efforts”

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.3 million men and women, contributes $2.32 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 62% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – Following President-elect Joe Biden’s nomination of Judge Merrick Garland to serve as the 86th attorney general of the United States, National Association of Manufacturers President and CEO Jay Timmons released this statement:

“America will be well-served by Judge Merrick Garland’s background as a prosecutor, especially his experience in the prosecution of the Oklahoma City bombers, given the need to focus on effective justice after yesterday’s domestic terrorism at the U.S. Capitol.

“Throughout his years on the bench, Judge Garland has demonstrated a strong commitment to upholding the Constitution and rule of law—the cornerstone of our country’s strength and success. In our country today, there is an urgent need to bolster trust in our institutions, and in picking Judge Garland to be our nation’s chief law enforcement officer, President-elect Biden will help build greater trust and confidence in the U.S. Department of Justice. Manufacturers congratulate him on this nomination.”

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.2 million men and women, contributes $2.35 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 62% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

As the whole world already knows, a mob seeking to thwart the certification of the U.S. presidential election overwhelmed police and broke into the Capitol building yesterday, forcing the evacuation of Congress and Vice President Mike Pence. Here are some stories to get you up to speed quickly.

Trump’s actions: The Wall Street Journal (subscription) has a useful overview of the horrifying events, including the outgoing president’s actions. After goading the insurrectionists to action throughout the day and attacking Vice President Pence for refusing to overturn the election results, President Donald Trump eventually released a video in which he issued a half-hearted call for “peace” while telling the mob, “We love you.” Twitter and Facebook both temporarily locked his social media accounts.

Democrats respond: Sen. Chuck Schumer (D-NY), who is slated to be the next Senate majority leader, called for the removal of President Trump. Other lawmakers have also called for his removal.

• “The quickest and most effective way—it can be done today—to remove this president from office would be for the Vice President to immediately invoke the 25th amendment. If the Vice President and the Cabinet refuse to stand up, Congress should reconvene to impeach the president,” said Schumer.

Republicans respond: Some senior Trump officials have resigned, including Special U.S. Envoy to Northern Ireland Mick Mulvaney, who previously served as White House chief of staff.

• In an interview this morning, Mulvaney told CNBC: “We didn’t sign up for what you saw last night…. We signed up for making America great again; we signed up for lower taxes and less regulation. The president has a long list of successes that we can be proud of. But all of that went away yesterday….”

Other officials are considering resigning, according to The Washington Post (subscription), while some have also proposed invoking the 25th Amendment.

Businesses respond: Businesses and trade associations strongly condemned the rioters and President Trump, according to Fox Business. Business leaders nationwide demanded that elected leaders, including the president, call for an end to violence and support the peaceful transfer of power.

• “These were destructive acts against our shared principles and beliefs of a peaceful transition of power,” said Ford Motor Company CEO Jim Farley. Salesforce CEO Marc Benioff said, “Our leaders must call for peace and unity.”

The NAM’s call: The NAM led the business community in a statement condemning the assault on American democracy. It urged our leaders to seriously consider next steps and reiterated its call for an orderly transition. NAM President and CEO Jay Timmons said:

• “Throughout this whole disgusting episode, Trump has been cheered on by members of his own party, adding fuel to the distrust that has enflamed violent anger. This is not law and order. This is chaos. It is mob rule. It is dangerous. This is sedition and should be treated as such.”
• “Vice President Pence, who was evacuated from the Capitol, should seriously consider working with the Cabinet to invoke the 25th Amendment to preserve democracy.”

Read the full statement here.

The bottom line: The NAM is committed to the millions of men and women who make things in America, and who have helped build a country that offers opportunity and freedom for all. The United States cannot function—as a nation or as a people—without respect for the rule of law and the ties that bind us together. Those who lead us must be especially strong in their support for our sacred institutions—or the country will not survive.