Arbitration Clauses, Compensatory Damages Among Amicus Filings in Five Small Business Court Cases

Date: January 03, 2024

The NFIB Small Business Legal Center filed amicus briefs in five small business cases in December to wrap up 2023

NFIB filed five amicus briefs in December at the U.S. Supreme Court, the United States Court of Appeals for the Third Circuit, the Pennsylvania Supreme Court, and the Oregon Supreme Court. These new cases involve many issues, including property rights, arbitration clauses, separation of powers, and more. 

American Forest Resource Council v. United States

NFIB filed an amicus brief in the U.S. Supreme Court challenging the federal government’s decision to repurpose government-designated timberlands as a national monument, which jeopardizes the existence of many small businesses. 

The brief argues two main points: 

  1. Whether the Antiquities Act authorizes the President to declare federal lands part of a national monument, and 
  2. Whether the President can override Congress’s plain text in another act to repurpose vast swaths of statutorily described timberlands as a national monument where sustained-yield timber production is prohibited. 

Murphy Co. v. Biden 

NFIB filed an amicus brief in the U.S. Supreme Court arguing that Congress designated this land for logging and that the President’s designation of this land as a national monument violates the separation of powers and will harm small businesses.  

The brief argues one main point: 

  1. Whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national monument status. 

Starbucks v. NLRB

NFIB filed an amicus brief in the United States Court of Appeals for the Third Circuit that challenges the National Labor Relation Board’s (NLRB’s) awarding of compensatory damages. The language, structure, and purpose of the National Labor Relation Act (NLRA) preclude any award of monetary damages beyond the compensation that the employer wrongfully discontinued and would otherwise have provided to the employee.  

The brief argues two points: 

  1. When employees are discharged or suspended, the available remedies are reinstatement “with or without back pay,” and  
  2. Backpay awards are impermissible if the employee “was suspended or discharged for cause.” 

Bohr v. Tillamook County Creamery Association

NFIB filed an amicus brief in the Oregon Supreme Court that maintains individuals must show specific reliance on alleged deceptive marketing practices. A contrary decision would open the floodgates of frivolous lawsuits against businesses. 

“Individual reliance has long been required for consumer fraud and misrepresentation claims,” said Elizabeth Milito, Executive Director of the NFIB Small Business Legal Center. “This Court has previously held that individual reliance is a fundamental element of such claims and should continue to do so, affirming the decision below.” 

NFIB’s brief argued three main points:  

  1. Petitioners must plead and prove individual reliance to establish liability,  
  2. Recovery based on inflated prices alone is not permissible in the consumer retail market context, and  
  3. Eliminating reliance or imposing liability based on inflated prices alone for consumer fraud or misrepresentation claims will harm businesses and consumers. 

Santiago v. Sky Zone LLC

NFIB filed an amicus brief in the Pennsylvania Supreme Court that asserts parents and guardians have the right to bind their children to arbitration agreements. Moreover, NFIB argues that the lower court’s rejection of the arbitration agreement makes Pennsylvania an outlier, erodes the policy in favor of arbitration, and damages business interests in Pennsylvania.  

Amicus Brief Update 

NFIB received its first opinion of the U.S. Supreme Court 2023-2024 term regarding Acheson Hotels v. Laufer (Americans with Disabilities Act (ADA) standing). In a disappointing decision, the Supreme Court dismissed this case as moot. The case involved a dispute over whether a disabled woman could sue a hotel for allegedly violating the ADA even though she did not plan to stay there. 

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and the U.S. Supreme Court. 

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