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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2007 - No. 4 - November 20, 2007

The Supreme Court granted certiorari today in one case of interest to the business community:

Labor Law-Federal Preemption-Preemption of State Law Prohibiting Use of State Funds by Private Employers in Union Organizing Campaigns. A California statute, enacted in 2000, prohibits private employers receiving state grants (of any amount) or state program funds (in excess of $10,000 per annum) from using that money "to assist, promote, or deter union organizing." The Supreme Court granted certiorari in Chamber of Commerce v. Brown, No. 06-939, to resolve a conflict among federal courts on the question of whether such a restriction is pre-empted by federal labor law.

The Chamber of Commerce sought and received declaratory relief in the district court, which held the relevant sections of the California statute invalid under the principles of Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132 (1976) (establishing broad preemption of state regulation of conduct Congress intended to leave unregulated), reasoning that non-coercive employer speech concerning organization was specifically protected by the NLRA, 29 U.S.C. 158(c). A panel of the Ninth Circuit affirmed, but the court sitting en banc reversed, placing it at odds with the two other Courts of Appeals (the Second and Seventh Circuits) that have addressed the issue, both finding preemption under similar circumstances.

This case is of great significance to all employers. A number of other states are currently considering legislation similar to the California statute at issue here, the viability of which depends directly on the outcome of this case. More broadly, affirmance could open the door to any state or local government wishing to regulate, through its spending power, employer speech with respect to unionization, and thus frustrate federal labor policy favoring free, non-coercive debate between management and employees. Absent an extension, amicus briefs in support of petitioner will be due on January 11, 2008, and amicus briefs in support of the respondent will be due February 11, 2008. Any questions about this case should be directed to Andrew Tauber (202-263-3324) in our Washington, D.C. office.

Earlier this month, the Supreme Court also invited the Solicitor General to file a brief expressing the views of the United States in Exxon Mobil Corp. v. Doe I, No. 07-81. The question presented is whether the collateral order doctrine permits immediate appeal of a district court's denial of a motion to dismiss under the political question doctrine when a lawsuit challenges the activities of a foreign government, and the Executive warns that the litigation itself, and not just the effects of a final judgment, would risk a potentially serious adverse impact on significant foreign policy interests of the United States.

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed.

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