Industries line up in Washington seeking immunity through preemption of state laws

From makers of infant formula to the NCAA, they all want federal protection when they cause harm

2025 November

As of this writing, the country is in its third week of a government shutdown. This is a tremendously difficult time for government workers who have missed paychecks and jobs and continue to live with constant uncertainty. And, the judicial branch has announced that “it will no longer have funding to sustain full, paid operations.”

Lately, Washington, D.C., seems to be the epicenter of uncertainty. While we wait for Congress to achieve some kind of consensus or compromise, AAJ continues its advocacy to protect your practices and ensure that your clients’ rights are not eviscerated in any negotiations.

As industries continue to attempt to gain immunity and preempt state law, AAJ is tracking and opposing their efforts:

H.R. 2300, a bill allegedly to bring “national uniformity” to infant formula

This bill would provide manufacturers of premature infant formula broad immunity for death or serious illness caused to preterm babies.

It was designed to eliminate cases brought by parents of babies who died from necrotizing enterocolitis (“NEC”) after they were given Similac or Enfamil premature infant formula made by Abbott Labs and Mead Johnson.

Juries across the country have found manufacturers responsible for failing to adequately warn parents about the dangers of their products.

It would provide immunity to any manufacturer of premature infant formula and prohibit states from enforcing any rule, regulation, requirement, common law, or court order that is different from applicable federal law.

This bill applies retroactively and would dismiss hundreds of currently pending civil proceedings, resulting in lost time and resources for families seeking justice.

H.R. 4312, the Student Compensation and Opportunity through Rights and Endorsements Act (SCORE Act)

This bill would grant the NCAA broad immunity, wiping out college athletes’ ability to legally enforce their Name, Image, and Likeness (NIL) rights and eliminating important protections for college athletes under state law that extend far beyond NIL.

The bill contains a sweeping antitrust exemption for the NCAA and institutions, thus overturning a unanimous Supreme Court decision holding that college athletes do have rights under antitrust laws.

By stripping college athletes of their rights under existing law, they would be left with no way to enforce currently available rules and protections.

H.R. 3548, the Infrastructure Expansion Act of 2025

This bill would nullify New York Labor Law Section 240, known as the “Scaffold Safety Law,” which has stood the test of time for over 100 years of major New York construction and growth.

After multiple failed attempts to overturn this well-established New York law at the state level, developers are asking Congress to intervene.

Tort law has always been left to state legislatures and state courts.

This bill tries to get around the federalism problem by preempting New York’s scaffolding law whenever any federal financial assistance is provided – directly or indirectly – for projects covered by the bill.

H.R. 5437, the Protection of Lawful Commerce in Stone Slab Products Act

This bill would provide legal immunity to manufacturers and sellers of stone slab products, including those used for kitchen countertops, for liability connected to its product that has caused workers to get sick or die from exposure to silica dust.

Workers handling artificial stone slab products have developed irreversible lung damage and silicosis from tiny particles of toxic dust over the past decade, and this issue has gained increasing attention since researchers at UC San Francisco and UCLA published “the largest U.S. study of this emerging health crisis” in 2023.

Regulatory update: SEC forced arbitration policy change

On September 17, 2025, the Securities and Exchange Commission (SEC) voted along party lines to reverse its decades-old policy, stating that the presence of forced shareholder arbitration clauses will no longer be considered by the SEC in determining whether a company’s registration statement should become effective.

This radical policy change threatens to shield companies from public accountability, put investors at risk of massive losses, depress shareholder value and stock prices, and undermine confidence in our capital markets – and any company that includes a forced arbitration provision in its IPO filing will face legal challenges that will result in significant risk and expense.

Legal Affairs update: Amicus curiae

AAJ’s amicus curiae program is a critical part of our advocacy efforts to ensure that access to justice, the right to trial by jury, and public policy arguments are rigorously supported in federal and state courts. Our most recent amicus filings include:

Deditch v. Uber Techs., Inc. (Ohio) – On September 22, AAJ joined the Ohio Association for Justice (OAJ) in an amici curiae brief urging the Ohio Supreme Court to hold that the Ohio Product Liability Act (OPLA) does not abrogate common-law claims alleging personal injuries from the use of a digital app because such apps are not “products” under the Act.

The GEO Group, Inc. v. Menocal (SCOTUS) – On September 22, AAJ filed a brief in the U.S. Supreme Court arguing that a private immigration detention contractor cannot immediately appeal a lower court’s denial of derivative sovereign immunity from human trafficking claims under the collateral-order doctrine.

Paganini v. The Cataract Eye Ctr. of Cleveland (Ohio) – On October 1, AAJ joined OAJ to file an amici curiae brief urging the Ohio Supreme Court to hold that the “hard limit” on recoverable noneconomic loss in R.C. 2323.43(A)(3) that applies to serious or “catastrophic injuries” violates the “due course of law” provision in Article I, Section 16 of the Ohio Constitution as applied.

Brazzano v. Thompson Hine LLP (2d Cir.) – On October 3, AAJ and the New York affiliate of the National Employment Lawyers Association (NELA/NY) filed an amici curiae brief urging the Second Circuit to affirm that the Ending Forced Arbitration Act of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) applies to the plaintiff’s sexual harassment claims regardless of whether such harassment was related to sexual attraction.

Newton v. LVMH Moet Hennessy Louis Vuitton Inc. (2d. Cir.) – On October 9, AAJ joined a coalition of advocacy organizations in the Second Circuit arguing that the EFAA exempts the entire cases from arbitration and that Congress intended the statute to invalidate pre-dispute arbitration agreements as to all claims within a “case relating to” a sexual harassment dispute.

Fontaine v. Philip Morris USA Inc. (Mass.) – On October 15, AAJ and the Massachusetts Academy of Trial Attorneys (MATA) filed a brief in the Massachusetts Supreme Judicial Court urging affirmance of a jury’s punitive damages verdict against cigarette manufacturer Philip Morris.