SOLUS INDUSTRIAL INNOVATIONS v. S.C.Amicus Curiae Brief of The National Federation of Independent Business Small Business Legal CenterCal.June 11, 2015OUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. 8222314 SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER TRANSMISSION CORPORATION; and EMERSON ELECTRIC CO Petitioners, V. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA Real Parties in Interest. RECEIVED Petition for Review of a Decision ofthe Court of Appeal, MAY 28-2015 Fourth Appellate District, Division 3, No. 0047661 CLERK SUPREME COURTSuperior Court, County of Orange Civil Case No. 30-2012-00581868-CU-MC-CXC APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER IN SUPPORT OF DEFENDANT AND PETITIONER SJPREME COURT LUKE A. WAKE DAMIEN M. SCHIFF wot Beas SBN: 264647 SBN: 235101 anit NFIB Small Business Legal Center Alston & Bird LLP JUN 14 28% 921 11th Street, Suite 400 1115 11" Street eter Sacramento, California 95814 Sacramento, CalifprankossVpGu''? Gler Tel. (916) 448-9904 Tel. (916)498-3320 Fax: (916) 916-5104 Fax (213) 576-2863 : luke.wake@nfib.org damien.schiff@alston.com Attorneysfor Amicus Curiae NFIB Small Business Legal Center IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. §222314 SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER TRANSMISSION CORPORATION; and EMERSON ELECTRIC CO Petitioners, Vv. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA Real Parties in Interest. Petition for Review of a Decision of the Court of Appeal, Fourth Appellate District, Division 3, No. 0047661 Superior Court, County of Orange Civil Case No. 30-2012-00581868-CU-MC-CXC APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER IN SUPPORT OF DEFENDANT AND PETITIONER LUKE A. WAKE DAMIEN M. SCHIFF SBN: 264647 SBN: 235101 NFIB Small Business Legal Center Alston & Bird LLP 921 11th Street, Suite 400 1115 11" Street Sacramento, California 95814 Sacramento, California 95814 Tel. (916) 448-9904 Tel. (916) 498-3320 Fax: (916) 916-5104 Fax (213) 576-2863 luke.wake@nfib.org damien.schiff@alston.com Attorneysfor Amicus Curiae NFIB Small Business Legal Center TABLE OF CONTENTS APPLICATION...ccc eesessssesesseesseseeessesccsessescsssescssssacscsssaseceesavasasuasscssecees 1 IDENTITY AND INTEREST OF AMICUS CURIAEvoccccccsccsssscsessesscsceses 1 BRIEF AMICUS CURIAE OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER IN SUPPORT OF DEFENDANTS AND PETITIONERS.......cccccecsescssseseceseseee 3 INTRODUCTION AND SUMMARY OF ARGUMENT......ccccccsccssscscsesee: 3 ARGUMENT........cccscccscsscssessesesenssesesssesessscssssesssssscausssesesscesseesesursssucatavavessees 5 I. THE OCCUPATIONAL SAFETY AND HEALTH ACT PREEMPTS ALL STATE REGULATION OF WORKPLACE SAFETY AND ENFORCEMENTSTANDARDS......ececccccssescssscesesesesecessesaseeesees 5 Il. THE FEDERAL ADMINISTRATIVE PROCEDURES ACT GUARANTEES THE REGULATED COMMUNITY THE OPPORTUNITY TO COMMENT ON NEW RULES AND ENFORCEMENT STANDARDS..........000000.ebesteeeneeeseeessersssstacseeseesreeees 9 A. The Requirement ofExpress Department of Labor Approval Ensures the Regulated Community an Opportunity to Voice Concerns Over Unduly Burdensome Enforcement Standards.0.......ccccescssessssocese, 9 B. The District Attorney’s Approach Would Deny the Regulated Community the Opportunity to Comment on His Desire to Impose Additional Civil Penalties for Workplace Safety Violations............... 11 CONCLUSIONo.oo ccceccesessssssssscsescsecsesecsessscsssssscecsacasacausasaesusasessaveseneesees 15 CERTIFICATE OF COMPLIANCE........cccccccssscsccesssesessessuescasecscessssscecees 16 PROOF OF SERVICE 0.0... ccccesssesssssscsessssesssesecstsrssacesesseassesasaesarsesscsvavesees 17 TABLE OF AUTHORITIES Page(s) CASES Bondv. United States, 131 S. Ct. 2355 (QOL).eeecesessesecsssseesesseseesesseseessssscessccsssssessesereeaeens 5 California Lab. Federation v. Occupational Safety & Health Stds. Bd., 221 CalApp.3d (1990)... cccccsscsessssssscssesssssssssscsscsssersessstacesesussasees 8 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ooeccccssssesessssseseesesesecssssssesssaccssscssscsceecesesesueas 10 Cipollone v. Liggett Group, S05 U.S. 504 (1992) ooeecssseseesesssesessesesssesessesssecsscssssssscarsececesesatenees 6 Gade v. Nat. Solid Waste Mgmt. Ass’n, 505 U.S. 88 (1992) wceccccccssesssscssscesssssscssscsccssssserscecsaeececseseesees passim Hall v. U.S. E.P.A., 273 F.3d 1146 (2001) oneececsccssesecssesessessessessssesscsccssssesessracssasssessees 10 Hemp Indus. Ass'n v. DEA, 333 F.3d 1082 (Oth Cir.2003)occccccscsccesssessseseescsccssseseessstetssescseeeuens 10 In re Countrywide Financial Corp. Mortg. Marketing and Sales Practices Litigation, 601 F.Supp.2d 1201 (2009) ...ccccceecesessssceeeees 7 Industrial Truck Ass'n. v. Henry, 125 F.3d 1305 (Oth Cir, 1997) oo.cccccsesessssscsssscscssssessessscctstscearseeeseee 8 Jones vy. Rath Packing Co., 430 U.S. 519 (1977) oo eceeccessescesesssssesssessesssscsesssscssssssssscetasecacereacsusseees 7 Loskouski v. State Personnel Bd., 4 Cal.App.4th 453 (1992)oo. cccccsescessssssssssssssssssscssscsscsaceseeesecaesscassecseees 3 M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) oo.ceessescsssscsscscscsscsscsscsrssesseesesesassens 5 Mackey v. Lanier Collection Agency & Services, Inc., 486 U.S. 825 (1988)oceecessscessessssccseecsssecssssceussssssssccseecterarsssesseserseuse 7 Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008).....eccessssessscsssssssscscssssssssrsesseacestecsees 10 il Page(s) North Carolina State Bd. ofDental Examiners v. F-.T.C., 135 S.Ct. L1OL (2015).ceceeceeeceeseeesceseeececeeneesteseessseessetessseeseese 5 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)eeeecccsccssesescesesseseessssseneeseessrscssesesseeessesseseees 7 Solus Industrial Innovations, LLC v. Superior Court, 229 Cal.App.4th 1291 (2014)oecccscssssscsessseeseeeseesessssesessenssseesesenses 12 United States v. Locke, 529 U.S. 89 (2000) ceecescssscsscescscessecsceessacsetscseeesaeseecseesessesssesesesseeees 6 Washington Mutual Bank, FA v. Superior Court, 95 Cal.App.4th 606 (2002) uu.eescsccsesseesseseeesssseeseessesessseeesessessesseses 5 STATUTES 5 ULS.C. § 553 (2015) cccceessceseeeeeeeeeeeseeesseeceeeesseseessseesessseassesnsensesseess 9 16 U.S.C. § 1531, et seg. (2015) eeeeceessesceeesteeseeseeseseoessessesseasstscseesseees 6 29 U.S.C. § 65. ceecccessccssssssssssesssssscsssssetsesssssusesecerssssnseessevsesssaeeesseaseen 3,8, 14 29 U.S.C. § 667(C)..cceccsesssesccssseccsscseesceessersesecseesstesseeaeesssseesenessseseeeessecasenes 3 42 ULS.C. § T545(C)(4)(A) (2015). eececeeesceseesseceecseseeeeseseessaessneceeeseeseees 6 Bus. & Prof. Code § 17200, ef S€q. ...eescecssssssscessssessssesteeseeseescsseecseaesscsscneees 4 Bus. & Prof. Code § 17500, ef 8€q. ..ccccccccscsssssccssssessesssesecssceessscsscsesssssceeeens 4 Cal. Bus. & Prof. Code § 17206(f).........ccccccscssssscssssessscsssecseeerecsessesescasenees 13 OTHER AUTHORITIES 62 Fed. Reg. 31,159, 31,178 (June 6, 1997) oo. eccccssssesesseteeseseseessessenes 11 Calandrillo, Steve P, Responsible Regulation: A Sensible Cost- Benefit, Risk Versus Risk Approach to Federal Health and Safety Regulation, 81 B.U.. L. Rev. 957 (2001) ou... eeececsscsssessececssssesesscescenees 13 California Rule of Court 8.520(f)...........:ccccsscsscescesssscesseecssessessssssssceeaeeees 1 ili APPLICATION Pursuant to California Rule of Court 8.520(f), the National Federation of Independent Business Small Business Legal Center (NFIB Legal Center) requests leave to file the attached brief amicus curiae in support of Defendant/Petitioner Solus Industrial Innovations, LLC,etal. NFIB Legal Center is familiar with the issues and scope oftheir presentation, and believes that the attached brief will aid the Court in its consideration ofthe issues presented in this case.’ IDENTITY AND INTEREST OF AMICUS CURIAE The NFIB Legal Center is a nonprofit, public interest law firm established to provide legal resources and to be the voice for small businesses in the nation’s courts through representation on issues of public interest affecting small businesses. The National Federation of Independent Business (NFIB)is the nation’s leading small business association, representing members in Washington, D.C., and all 50 state capitals. Foundedin 1943 as a nonprofit, nonpartisan organization, NFIB’s mission ' NFIB Legal Center confirms, pursuant to California Rule of Court 8.520(£)(4), that no one and no other party made any contribution of any kindto assist in the preparation of this brief or made any monetary contribution to fund the preparation of this brief. I is to promote and protect the right of its members to own, operate and grow their businesses. NFIBrepresents 350,000 memberbusinesses nationwide.Its membership spans the spectrum of business operations, ranging from sole proprietor enterprises to firms with hundreds of employees. Thetypical NFIB member employs 10 people and reports gross sales of about $500,000 a year. The NFIB membershipis a reflection ofAmerican small business. To fulfill its role as the voice for small business, the NFIB Legal Center frequently files amicus briefs in cases that will affect small businesses. It seeks to file here because the case raises a question as to whether California district attorneys may bring civil actions against employers for violations of workplace safety standards, in addition to other penalties imposed by the State, under state statutes that have never been incorporatedinto an approved state workplace safety plan—as required by the federal Occupational Safety and Health Act. The position of the Real Party in Interest is troubling to the small business community not only because it may enable district attorneys to radically ratchet up penalties on non-compliant businesses, but also because it would deny NFIB, and the businesses it represents, any opportunity for public comment. Accordingly, NFIB Legal Center has a strong interest in the resolution ofthis case. BRIEF AMICUS CURIAE OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER | IN SUPPORT OF DEFENDANTS AND PETITIONERS INTRODUCTION AND SUMMARYOF ARGUMENT The Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. (“OSH Act’), preempts state regulation of conduct relating to workplace health and safety issues where there is already a federal standardin place. Gade v. Nat. Solid Waste Mgmt. Ass’n., 505 U.S. 88 (1992). The Act allows for the State of California to regulate such conduct only in conformance with a state workplace safety plan—which must be approvedby the Secretary of Labor. Loskouski v. State Personnel Bd., 4 Cal.App.4th 453, 456 (1992). Further, the Act advancesa federal policy of sensible workplace regulation throughout the nation by permitting the Secretary to reject any state proposal that would impose undue burdenson the regulated community. 29 U.S.C. §§ 651, 667(c). In this case, the Real Party in Interest, the District Attorney of Orange County (“District Attorney”), seeks to impose over $1 million in penalties on the Petitioners for workplace safety violations—in addition to penalties that the California Department of Industrial Relations, Division of Occupational Safety and Health (“Cal/OSHA”)has already imposed. But whereas Cal/OSHAwasacting pursuant to California’s approved workplace safety plan, the District Attorney seeks exponentially greater penalties without any authorization under California’s approved plan. The District Attorney maintains that California’s Unfair Competition Law, Bus. & Prof. Code § 17200 et seq. (“UCL”), and the False Advertising Law, Bus. & Prof. Code § 17500 et seq. (“FAL”), authorize these penalties. Moreover, he contendsthat these statutes are not preempted by the OSH Act becausetheyare of“general applicability,” and merely enhance penalties for businesses that violate the law. But that argumentfails because the conduct allegedly triggering penalties under the FAL and UCLis within the field of subject matter that Congress chose to preempt. NFIB maintains that if the State wishes to obtain authority to impose additional penalties under the UCL and FAL, California must seek an amendmentto its approved plan. That happy approach would allow the small business community to submit commentsraising serious concerns over any such proposal. And in light of such comments, the Secretary may well conclude that application of the UCL and FAL—ontopofother penalties—would impose undue burdens on interstate commerce. In consideration ofpublic comments, the Secretary might likewise refuse to certify amendmentsallowing district attorneys to pursue claims under the UCL and FAL onthe view that such an approach would inappropriately expose businesses to multifarious enforcement actions—andpotentially application of varying legal standards. ARGUMENT I. THE OCCUPATIONAL SAFETY AND HEALTH ACT PREEMPTS ALL STATE REGULATION OF WORKPLACE SAFETY AND ENFORCEMENT STANDARDS Ourconstitutional system diffuses political power betweenthe states and the federal governmentfor the purposeofprotecting individual rights. See Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Under modern precedent, the states and the federal government maintain concurrent powers to regulate economic affairs; however, where state and federal law stand in conflict, the Supremacy Clause of the federal Constitution preempts state law. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316,427 . (1819). Thus, although the State of California generally retains its traditional police powers in most cases, California law cannot be enforced in a mannerthat conflicts with the provisions of a federal statute. Washington Mutual Bank, FA v. Superior Court, 95 Cal.App.4th 606, 612 (2002). The Framers ofthe United States Constitution were primarily concerned with limiting the conferral of federal powers. Bond, 131 S. Ct. at 2364. The preemption doctrine, however, recognizes that in some cases a federal enactment may preserve freedom by displacing more burdensome state regulations. See e.g., North Carolina State Bd. ofDental Examinersv. F.T.C., 135 S.Ct. 1101 (2015) (holding that federal antitrust law disallows a State Board from imposing anti-competitive regulations where the Board is comprised of individuals whoare actively engaged as competitors in the relevant market); Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992) (recognizing that Congress had expressly pre-empted state regulations imposing certain labeling requirements). For federal laws enacted pursuant to the CommerceClause,thelegislative goal typically is to establish national standards for economic conduct in a mannerthat promotes the commongood ofthe entire nation. See, e.g., Clean Air Act, 42 U.S.C. § 7545(c)(4)(A) (2015) (though giving a waiver to California, the Act generally preemptsstates from regulating motor vehicle emissions); see also United States v. Locke, 529 U.S. 89, 112-16 (2000) (holding that federal statutes governing maritime practices preempt Washington State’s regulations regarding general navigation watch procedures, English languageskills, training and casualty reporting). In some cases Congress may imposea regulatory floor, therein setting a default federal standard of conduct while preserving thestates’ powerto impose heightened standards. See e.g., Endangered Species Acct, 16 U.S.C. § 1531 et seq. (2015) (setting baseline protections for threatened and endangered species). But in other cases—as with the enactment ofthe OSH Act—Congress may decide that the national economyis best served by setting a consistent federal standard throughout the country. Thus, where Congressseesfit, its enactments may prohibit state and local authorities from imposing orutilizing more burdensomeregulatory standards and enforcement mechanismsthan are authorized by a federal enactment. See e.g., Mackey v. Lanier Collection Agency & Services, Inc., 486 U.S. 825, 829 (1988) (holding that “[t]he pre-emption provision [of the Employment Retirement Security Income Act] ... displace[s] all state laws that fall within its sphere, even including [] lawsthat...” state authorities think advance the purposes of the federal enactment); see also In re Countrywide Financial Corp. Mortg. Marketing and Sales Practices Litigation, 601 F.Supp.2d 1201, _ (2009) (holding that federal regulations preempted state laws—including the UCL and FAL—“‘thatseek to impose requirements regarding ‘disclosure and advertising.’”). Federal preemption may be expressor implied. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). And there is—as the District Attorney insists—a presumption against implied preemption. See Ricev. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). But, Congressional intent to preempt state regulation is manifest where a federalstatute plainly conditions state regulation—of a specific sort of conduct—on a requirementto obtain federal approval. Gade, 505 U.S.at 99. Thatis precisely what the OSH Act requires. Since the OSH Act expressly conditions the exercise of California’s police powers on a requirementto obtain prior approval from the Secretary of Labor, California is no longerfree to set workplace safety standards where a federal standardis already in effect, or to penalize conductthatis alleged to violate such standards—absent express federal approval. Id., at 96-97. Congress thoughtthat this approach wasin the bestinterest of the nation. 29 U.S.C. §§ 651, 667(b) (requiring a “plan for the developmentof [workplace safety] standards andtheir enforcement.”). And it was Congress’ prerogative to balance national interests by requiring that any proposed state enforcement must be expressly authorized by the Secretary—andbyproviding that the Secretary “must besatisfied” that a proposed state workplace safety plan meets certain criteria. Gade, 505 U.S. at 100. “State standards that affect interstate commercewill be approved only if they are ‘required by local conditions’ and ‘do not unduly burden interstate commerce.’” Jd. Accordingly, if California wishesto impose heightened standardsor penalties in place of established federal standards, the State must submit a plan—or amendments thereto—andobtain express federal approval. California Lab. Federation v. Occupational Safety & Health Stds. Bd., 221 Cal.App.3d, 1547, 1551, 1559 (1990) (recognizing that changes to an approved plan must be approved bythe Secretary); Industrial Truck Ass'n. v. Henry, 125 F.3d 1305, 1310 (9th Cir. 1997). 8 Ui. THE FEDERAL ADMINISTRATIVE PROCEDURES ACT GUARANTEES THE REGULATED COMMUNITY THE OPPORTUNITY TO COMMENTONNEW RULES AND ENFORCEMENT STANDARDS A. The Requirement of Express Department of Labor Approval Ensures the Regulated Community an Opportunity to Voice Concerns Over Unduly Burdensome Enforcement Standards Congress intended a balanced and sensible approach to workplace health andsafety issues. Gade, 505 U.S. at 102 (explaining Congress sought to “avoid[] duplicative, and possibly counterproductive, regulation.”). That national policy is evident in the very structure of the Act and is made demonstrablyclear in the express provision allowing the Secretary discretion to disapprove ofa plan that would impose “unduly burden[some]”regulatory requirements or penalties. Jd. at 99-100 (“The design ofthe statute persuades us that Congress intended to subject employers and employeesto only one set of regulations, be it federal or state, and that the only way a State may regulate an OSHA-regulated occupationalsafety and health issue is pursuantto an approvedstate plan...”). What is more, the federal framework affords the regulated community an opportunity to help inform the Secretary’s judgment on these matters. Administrative Procedures Act, 5 U.S.C. § 553 (2015) (“APA”). Congress knew that, in requiring the Secretary to make a decision as to whetheror notto certify a proposed state plan, the Secretary would have B O S E RE S Mi s. to allow the public an opportunity to offer comments. This is because the APArequires that—before any federal regulation may be enforced—all potentially interested parties must be afforded an opportunity to raise their concerns. See Chrysler Corp. v. Brown, 441 U.S. 281 (1979)(“In enacting the APA, Congress made a judgmentthat agency decisions be made only after affording interested persons notice and an opportunity to comment.”). Thus, in requiring the Secretary to give a stamp of approval on any proposedstate plan to regulate workplace health and safety, the OSH Act both federalizes what would otherwise be a state issue, as well as guarantees the regulated community the right to invoke the APA’s proceduralprotections.’ See Hall v. U.S. E.P.A., 273 F.3d 1146 (2001) (affirming that “with respect to {an agency’s] actions approving[] revisions [to a state implementation plan], the APA requires that an agency engaging in informal rulemaking providepublic notice...” and an opportunity to comment.). * The APArequires legislative rules to go throughits notice-and-comment process. And the Ninth Circuit explains that a “legislative rule”is any rule that “creates rights, impose[s] obligations, or effect[s] a change in existing law pursuantto authority delegated by Congress.” Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087 (9th Cir.2003) (quoting Miller v. California Speedway Corp., 536 F.3d 1020, 1033 (9th Cir. 2008)). Thus since the Secretary’s approval of a state workplace safety plan effects a changein safety code standards or enforcement, the Secretary may only grant such approvalafter allowing a meaningful opportunity for public comment. 10 Further, the opportunity for notice-and-commenton proposed rules is important because it may ultimately result in more rational and workable enforcement standards. Input from the regulated community is vital to the advancement of Congress’ goal of formulating a sensible and balanced approach to workplace health and safety issues. See e.g., Occupational Safety and Health Admin., Supplement to California State Plan; Approval, 62 Fed. Reg. 31,159, 31,178 (June 6, 1997) (responding to comments from concernedbusinesses bylimiting available enforcement mechanisms). B. The District Attorney’s Approach Would Deny the Regulated Community the Opportunity to Commenton His Desire to Impose Additional Civil Penalties for Workplace Safety Violations Hadthe State of California proposed amendments toits state workplace safety plan, the Secretary ofLabor would have had the opportunity to consider comments and concerns from NFIB and other concerned groups. And without doubt, NFIB would have opposedthe amendmentsthat the District Attorney now seeksto ratify by judicialfiat.* Indeed, hadthe State sought authorization to allow district attorneys to impose additional penalties, under California’s UCL and FAL, NFIB would 3 NFIB frequently files comments opposing proposedhealth and safety regulations that will unduly burden small businesses. See e.g., Docket No. OSHA-2010-0034 (concerning standards to control exposure to respirable crystalline silica); Docket No. OSHA-2013-—0023 (concerning a proposed system for tracking workplaceinjuries). 11 havefiled comments opposing the proposalon the groundthatit unduly burdens small businesses. Specifically, NFIB wouldlikely have objected to the proposalto ratchet up penalties under the UCL and FAL onthe groundthat such an approachradically increases business liabilities—far in excess of whatis permitted undercurrent enforcement standards. This case demonstrates that point well, as the District Attorney “seeks to recover penalties of up to $2,500 per day, per employee,for the period from November 29, 2007 to March 19, 2009.” Solus Industrial Innovations, LLCv. Superior Court, 229 Cal.App.4th 1291 (2014). Under such a formula,district attorneys could generate shock-and-awepenalties of many millions of dollars underthe UCLand FAL for alleged workplace violations—far in excess of what Cal/OSHA may impose under California’s authorized enforcement program. Further, NFIB’s comments would have emphasizedthatit is inequitable to penalize a business twice for the same underlying conduct, especially where a doubling of penalties would ruin many small businesses.‘ Additionally, NFIB would have opposed any proposalto * One mustnot forget that in cases where an accidentor death results from workplacesafety violations, the defendant-companyis also facing potentially catastrophiccivil liabilities for negligence and or wrongful death. So the financial incentives encouraging compliance with health and safety standards are already very strong. One musttherefore question 12 authorize district attorneys to seek additional penalties under the UCL and FAL:those statutes create a perverse incentive for local prosecutors to impose more severe penalties than necessary, as the proceeds are payable to the local county treasury. See Cal. Bus. & Prof. Code § 17206(f). Finally, NFIB would have objected to any amendmentto California’s state workplace safety plan that would allow for multifarious legal proceedings against a business for the very same underlying conduct, because such a regime would dramatically increase legal expenses for small businesses. Ofcourse, the District Attorney’s approach would effectively deny the regulated community any opportunity to raise such comments on the view that the UCL and FAL are “generally applicable” statutes, and therefore somehow beyond the scope federal preemption. But this is mere subterfuge. While generally applicable regulations may be enforceable in most cases, as applied to health and safety issues in the workplace, they are subject to OSH Act preemption. It matters not whether the UCL andthe FAL are generalin their ordinary application. Gade, 505 U.S. 106-08 (“Our precedents leave no whetherthe threat of further penalties will do much—if anything—to encourage compliance. At some point added penalties serve no constructive purpose, but amountonly to a scourging—incongruousto any commensurate fault. See Steve P. Calandrillo, Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach to Federal Health and Safety Regulation, 81 B.U.. L. Rev. 957, 978 (2001) (“Increasing costs without improving safety benefits is indisputably inefficient.”). 13 doubtthat a dual impact state regulation cannot avoid OSH Act pre- emption simply because the regulations serves several objectives rather than one.”). What matters is that the District Attorney has invoked those statutes in this case for the purpose of imposing heightenedpenalties for a violation of established health and safety standards. See Gade, 505 U.S.at 103-04 (“If a State wishes to regulate an issue of worker safety for which a federal standardis in effect, its only option is to obtain the prior approval of the Secretary of Labor...”) (emphasis added). NFIB andotherinterested parties should have a chanceto raise objections in commentsto the Secretary of Labor before any additional penalties should be imposed for conduct violating established federal workplace safety standards because the OSH Act preemptedstate regulation ofthat entire field of conduct. Jd. By those same terms, the Secretary should have an opportunity to weigh those comments in determining whetheradditional penalties would impose undue burdens onthe business community. 29 U.S.C. §§ 651, 667(c). 14 CONCLUSION For the foregoing reasons, Amicus NFIB Legal Center respectfully urges this Court to affirm the decision of the Court ofAppeal. DATED: May27, 2015. 15 Respectfully submitted, DAMIENM. SCHIFF LUKE A. WAKE ca LUKE A. WAKE Counselsfor Amicus Curiae National Federation of Independent Small Business Legal Center PROOF OF SERVICE I, Annie Yu, declare: I am employed in the County of Sacramento, State of California. I am over the age of 18 and not a partyto the within action. My business address is Alston & Bird LLP, 1115 11" Street, Sacramento, CA 95814. On May 27, 2015, I served the document(s) described as APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER IN SUPPORT OF DEFENDANT AND PETITIONERonthe interested parties in this action by enclosing the document(s) in a sealed envelope addressed to the parties as listed on the attached servicelist in the following manner: SEE ATTACHEDSERVICELIST i] BY US MAIL: I am “readily familiar” with this firm’s practice for the collection and the processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, the correspondence would be deposited with the United States Postal Service at 1115 11” Street, Sacramento, CA 95814 with postage thereon fully prepaid the same day on which the correspondence was placed for collection and mailing at the firm. Following ordinary usiness practices, I placed for collection and mailing with the United States Postal Service such envelope at Alston & Bird LLP, 1115 11! Street, Sacramento, CA 95814. C1 UPS NEXT DAY AIR: I deposited such envelope in a facility regularly maintained by UPS with delivery fees fully provided for or delivered the envelope to a courier or driver of UPS authorized to receive documents at Alston & Bird LLP, 1115 11° Street, Sacramento, CA 95814 with delivery fees fully provided for. Oh BY ELECTRONIC MAIL TRANSMISSION WITH ATTACHMENT: Onthis date, I transmitted the above-mentioned document by electronic mail transmission with attachment to the parties at the electronic mail transmission address set forth on the attachedservicelist: & I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on May 27, 2015 at Sacramento,Wie 17 CERTIFICATE OF COMPLIANCE I herebycertify that, in reliance upon the word count feature of the software used to create the document, the foregoing Brief Amicus Curiae contains 2,963 words, including footnotes, and exclusive of those materials not required to be counted under Rule 8.204(c)(3). Dated: May 27, 2015 Respectfully submitted, . WAKE Counselsfor Amicus Curiae National Federation of Independent Small Business Legal Center 16 SERVICE LIST Frederick D. Friedman Jones Day 555 South Flower Street 50" Floor Los Angeles, CA 90071-2200 Counselfor Petitioners Solus Industrial Innovations, LLC et. al Superior Court of Orange County Hon. Kim G. Dunning 751 W Santa Ana Blvd. Dept CX 104 Santa Ana, CA 92701 Counselfor Respondent Santa Ana District Attorney Office of the District Attorney 401 Civic Center Drive West Santa Ana, CA 92701 Kelly Ann Roosevelt Office of the District Attorney P.O. Box 808 Santa Ana, CA 92701 Counselfor Real Party in interest The People Office of the Attorney General Appellate Coordinator 300 South Spring Street Los Angeles, CA 90013 18 SuzannePatricia Maria State of California DepartmentofIndustrial Relations, Division of Occupational Safety & Health 1515 Clay Street, Suite 1901 Oakland, CA 94612-1413 Counselfor Amicus Curiae 19
