ATPA Archives - Shopfloor

A Review of a Very Busy Week for Manufacturers in Congress, Executive Branch

By | Briefly Legal, Communications, Health Care, Regulations, Taxation, Trade | One Comment

Catching up with last week’s blizzard of legislative action and regulatory excess…

On Thursday, Dec. 23, the Environmental Protection Agency circumvented the policymaking branch of government, the U.S. Congress, and announced its plans to regulate greenhouse gas emissions from such sources as coal-fired power plants and refineries. In a statement, Jay Timmons, executive vice president of the National Association of Manufacturers, said, “Today’s announcements demonstrate the EPA’s commitment to move forward with an overreaching agenda that will only raise energy costs and hurt manufacturers’ ability to grow, create jobs and compete in the global marketplace.” 

As its final legislative action before adjourning, the House on Wednesday, Dec. 22, agreed to the Senate’s stripped-down version of H.R. 6517, the Omnibus Trade Act. With removal of the critical Miscellaneous Trade Benefits language, the bill is more minibus: It extends for six weeks Andean Trade Preferences Act benefits for Colombia — well-deserved — and for Ecuador, now governed by the leftist government of Rafael Correa, which has attacked the rule of law and violated its treaty obligations. The bill also extends Trade Adjustment Assistance authority for retraining programs for workers affected by trade. The incoming Ways & Means chairman, Rep. Dave Camp (R-MI), commented, “I would rather have passed a longer-term extension of ATPA and TAA, and unfortunately, the other provisions of the House bill died in the Senate.  I look forward to working in the next Congress on additional trade legislation, including enacting the trade agreements with Colombia, South Korea, and Panama.” 

Also on Wednesday, the House approved the Senate-amended version of H.R. 847, the James Zadroga 9/11 Health and Compensation Act, by a vote of 206-60, with 168 members not voting. The earlier House bill had a pricetag of $7.4 billion; thanks largely to the doughtiness of Sen. Tom Coburn (R-OK), the total cost has been reduced to $4.2 billion with stronger oversight provisions included and a cap imposed on trial lawyer fees. (Coburn news release.) The compromise language replaces the House’s early funding mechanism, a tax on multinational companies that do business in the United States. Instead, the law charges  “a 2 percent excise fee on foreign manufacturers/companies located in countries where the U.S. does not have an international procurement agreement receiving government disbursements made under future procurement agreements.  In addition, the bill would extend fees on H-1B and L-1 visas until 2015.” (Senate GOP release.) 

The Senate confirmed federal judges, but did not act on two controversial nominees to U.S. District Court of interest to manufacturers: John “Jack” McConnell, the Rhode Island trial lawyer who masterminded the state’s litigation against paint manufacturers, and former Wisconsin Supreme Court Justice Louis Butler, Jr., who helped strike down the state’s limits on medical liability and promoted the scheme of “market share liability” for paint manufacturers. 

On Tuesday, Dec. 21, the House of Representatives agreed to the Senate amendments to the FDA Food Safety Modernization Act as contained in H.R. 2751, and the bill now goes to President Obama for his signature. The NAM supported the bill. For more, see Food Manufacturing’s report, “What The Food Safety Modernization Act Means To You.”  Read More

Federal Judge Concludes Ecuador in Bed with U.S. Trial Lawyer

By | Briefly Legal, Energy, Trade | 2 Comments

U.S. District Court Judge Lewis Kaplan of the Southern District of New York has just ruled that U.S. trial lawyer Steven Donziger had to respond fully by supplying documents sought by Chevron so it can defend itself from the $113 billion lawsuit/shakedown over environmental damage in Ecuador. In his memorandum order, available here, Judge Kaplan describes the documents Donziger has so far resisted producing:

At this point, Donziger has produced some of the documents demanded by the subpoena. Instead of producing the balance, however, he submitted, on November 15, 2010, a purported privilege log – which is over 2,000 pages long and claims privilege as to 8,652 documents – and contends that he now should be permitted to litigate those privilege claims. The log includes claims of privilege as to approximately 2,500 or more documents sent or disclosed to a public relations person, the founder of the Amazon Defense Front or La Frente, Amazon Watch, the Wall Street Journal, Bloomberg News, Conde Nast, The New York Times, and the Los Angeles Times. Moreover, the 8,652-item privilege log lists not even one document that was written by or addressed to any of the Lago Agrio plaintiffs – the clients whose privilege supposedly is being asserted.

That’s big, but probably to be expected. Where Kaplan breaks new ground is his forceful rebuke to the Government of Ecuador for (GOE) trying to intervene so late in the process:

The eleventh-hour attempt by the GOE to intervene – after the Court ruled that Donziger and his clients were obliged to produce the documents and the Court of Appeals had denied a stay pending appeal to assert a supposed common interest in the Lago Agrio plaintiffs’ privilege – supports that view. The GOE has been working closely with Donziger for years and stands to gain billions for Ecuador if the Lago Agrio plaintiffs prevail against Chevron. Its belated attempt to get into this case has all the hallmarks of an attempt to pull Donziger’s chestnuts out of the fire.

Our emphasis. So the leftist government of Rafael Correa is in bed with U.S. trial lawyers attacking a U.S. company. This strong statement, background and arguments by a federal judge should destroy Ecuador’s attempt to maintain its advantages under the Andean Trade Preferences Act.