For 36 years, the Atlantic Legal Foundation has been participating in cases and causes important – indeed, critical – to the health of the business community. The cases it undertakes reflect the Foundation’s mission: advocating for free enterprise, limited and efficient government, admissibility of sound science in judicial and regulatory proceedings and parental choice in education. Importantly, the cases and causes it takes on are reviewed and selected by the Foundation’s board, which includes the current and retired chief legal officers of some of our nation’s most respected corporations.
Atlantic Legal Foundation has led the way in focusing courts’ attention on the need for rigorous scrutiny of scientific and other expert testimony, particularly in product liability litigation. Atlantic Legal challenges the admissibility of “junk” science. In the leading case, Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court’s majority opinion cited the Foundation’s incisive brief in its seminal decision that set the evidentiary standard for admissibility of expert scientific testimony in federal courts.
Representing scores of noted scientists, including almost two dozen Nobel laureates, the Foundation has successfully challenged bogus theories of medical causation in numerous federal and state cases. For example: in a case in the California Supreme Court, Atlantic Legal’s amicus brief was cited by the court as a basis of its decision that the connection between low-frequency electromagnetic fields produced by overhead high-voltage power lines and cancer – or the fear of cancer – was too speculative to sustain a claim against the electric utility company.
The decision effectively ended a campaign by the plaintiffs’ bar to create yet another litigation goldmine. Recently, the Pennsylvania Supreme Court cited the Foundation’s brief several times in an opinion rejecting as scientifically unsound the theory that inhalation of a de minimis number of asbestos fibers can be a “substantial” cause of mesothelioma. The Foundation has addressed similar concerns in asbestos cases in other states. The Foundation is trying to bring sanity to, and stop, the flood of asbestos litigation that has engulfed U.S. manufacturing companies and the courts.
The Foundation filed a brief on behalf of the National Association of Manufacturers in the Ninth Circuit challenging government-compelled private speech. The City had enacted an ordinance requiring cell phone retailers to display posters and brochures containing the City’s views on the alleged health risks of cell phone use, about which there is considerable scientific dispute. Atlantic Legal’s brief focused on the degree of First Amendment scrutiny required when the government seeks to require private citizens to communicate the government’s message, arguing that none of the traditional levels of scrutiny had been met, and the City had available resources of its own to inform the public of its concerns that do not compel private citizens to speak. The Ninth Circuit agreed.
The Foundation has challenged abuse of class action procedures. In Wal-Mart Stores v. Dukes, the Foundation argued that the expert’s testimony was not adequately examined for reliability under Daubert and that both the district court and the Ninth Circuit were wrong in failing to apply the Daubert test to expert testimony proffered at the certification stage of a class action. In another appeal of national significance, the Foundation has urged the Supreme Court to enforce an arbitration clause containing a “class arbitration waiver,” and to reverse the holding of a divided Second Circuit that a class action is the “only economically feasible way” for the plaintiff to pursue a federal antitrust claim.
Atlantic Legal’s clients from the business community are varied, ranging from Fortune 500 corporations and large trade associations to small entrepreneurs. For example, in New Jersey, on behalf of a small surveying company, the Foundation has argued for equal opportunity in state contracting, forcing a major overhaul of New Jersey’s contracting procedures. The Foundation won a consent decree that established a fundamental constitutional right to equal protection, and firms now compete on a level playing field. The state has benefited from lower costs because contractors now compete on price and quality, not on meeting race- and gender-based goals.
Atlantic Legal advocates against intrusive regulation of business and for responsible corporate governance. The Foundation was an early proponent of preservation of the attorney-client privilege against compulsory waiver of that essential protection where corporate misconduct has been asserted.
Atlantic Legal also publishes papers considering legal issues of concern to the business community, for example, inadequate judicial compensation and its impact on the New York economy and the need for restructuring New York’s outmoded trial court system.
Atlantic Legal is a nonprofit 501 (c) (3) foundation and relies on grants from corporations, law firms, private foundations and personal donations. It does not charge for its work. The Foundation has earned and deserves the support of the business community.
For a complete review of its current activities and its leadership, please visit www.atlanticlegal.org or call the Foundation’s president, William H. Slattery, at (914) 834-3322.
Al Driver,
Editor
Published April 24, 2013.