Linda Kelly, senior vice president and general counsel of the National Association of Manufacturers.

Manufacturers in 2019 are likely to see continued attacks on their energy infrastructure projects including pipelines, more climate change litigation, and a steady stream of liability actions over data privacy and hacking incidents. That's according to the first ever litigation report from the in-house lawyers at the National Association of Manufacturers.

The report also includes the group's litigation and amicus wins in 2018, along with a look at ongoing litigation and amicus projects. The report was published by NAM's legal arm, the Manufacturers' Center for Legal Action.

Linda Kelly, the group's senior vice president and general counsel, said the most significant litigation win last year was its 9-0 victory in National Association of Manufacturers v. U.S. Department of Defense in the U.S. Supreme Court over a jurisdictional issue that had delayed legal challenges to the Environmental Protection Agency's 2015 “Waters of the United States” Rule.

“We'd been involved in the case for a long time, and it was a very high-profile engagement for us,” Kelly said. “This is the first time a case carrying the NAM name has come before the court.”

She said resolving the jurisdictional issue “was a very time-saving and illuminating outcome for a wide variety of cases in a number of places.” The victory cleared the path for the group to move forward with its lawsuit seeking to invalidate the rule in the U.S. District Court for the Southern District of Texas. A decision is expected in the next few months.

Kelly said other cases that loom significantly this year—and in which the center has filed or will file amicus briefs—include appeals in two climate change cases, where plaintiffs seek to apply “public nuisance” tort liability on manufacturers that are allegedly contributing to global warming.

The cases are important, she said, because the public nuisance theory could be expanded to any industry over any popular issue, such as lead paint, agricultural chemicals or even McDonald's hamburgers in obesity litigation.

“It's like a super tort,” Kelly said, “so broad that it could swallow up all other product liabilities claims. If that happens, it is open season on manufacturers.”

The other case Kelly finds especially consequential for manufacturers this year is the U.S. Supreme Court's review of a doctrine called “Auer deference.” The doctrine allows agencies to give extreme deference to a federal agency's interpretation of its own rules.

“So much of our litigation centers on whether or not a federal agency has the authority to do what it did,” Kelly explained. “To have the court actually provide some additional direction and potentially narrow the deference would be significant.”

The report also highlights the center's Manufacturers' Accountability Project and the Manufacturers' Compliance Institute. The accountability project was formed to help battle the climate change suits, and so far it has a perfect 3-0 record in court cases.

The Compliance Institute won the regional Association of Corporate Counsel's 2018 In-House Innovator Award. The institute provides free legal and regulatory compliance guidance to NAM members, through partnerships with six top-tier law firms.

The law firms include Sidley Austin for environmental issues; Littler Mendelson on labor and employment law; Wiley Rein on intellectual property; Shook, Hardy & Bacon on product safety; Squire Patton Boggs for international issues; and Crowell & Moring on California Proposition 65, a ballot initiative on toxic chemical use.

One participant in the free calls is Littler employment law attorney Michael Lotito. He said many of the calls come from members at smaller companies that may not even have an in-house counsel. “It's usually about fundamental compliance issues in labor law,” Lotito explained, although occasionally a case's facts may be rather complex.

Drawing more members than the individual calls, he said, are useful webinars that offer new developments on labor issues.

The report said last year the institute answered 64 member requests for compliance assistance, and hosted five webinars that served over 1,000 members.