On March 28, 2011, CAC filed an amicus curiae brief in the Supreme Court in support of the petition for a writ of certiorari in Farina v. Nokia. The petitioner had asked the Court to hear this case to decide whether state law claims against cell phone manufacturers based on possible risks associated with radiofrequency radiation emitted by cell phones are impliedly preempted by the views of a federal agency, even though Congress has expressly disclaimed implied preemption in the statute implemented by the agency. The Third Circuit concluded that the petitioner’s claims were impliedly preempted because they serve as an obstacle to the “purposes and objectives” of the FCC in balancing its competing objectives of safety and efficiency. But in two nearly identical cases, the Fourth Circuit reached the exact opposite conclusion, and the District of Columbia Court of Appeals reached a mixed result.

CAC’s brief in Farina urged the Supreme Court to grant review in order to clarify the extent to which an agency’s views should be considered as a basis for implied preemption when Congress has expressly disclaimed any implied preemption of state law. The dramatically different approaches taken by the courts below in three nearly identical cases, and the inconsistent results they reached, highlight the need for the Supreme Court to take this opportunity to provide additional guidance on the doctrine of implied preemption. CAC argued that a broad theory of implied obstacle preemption inherently leads to such unpredictable results and undercuts principles of federalism established by the Constitution.

This Term, CAC has filed amicus briefs on preemption questions before the Supreme Court in Williamson v. Mazda Motor of America, Inc., AT&T v. Concepcion, and PLIVA, Inc. v. Mensing.

On October 3, 2011, the Supreme Court denied cert. in Farina