JUDGE DISMISSES THREE OUT OF FOUR COUNTS IN IBSA SUIT AGAINST ACGIH®
Cincinnati, Ohio March 18, 2005 In November of 2004 the American Conference of Governmental Industrial Hygienists (ACGIH®), headquartered in Cincinnati, Ohio, was named as a defendant in lawsuits filed in the United States District Court in Macon, Georgia by the International Brominated Solvents Association (IBSA) and other plaintiffs. The plaintiffs sought to enjoin ACGIH® from proposing, adopting, or publishing TLVs® for 1-Bromopropane, copper, silica, and diesel particulate matter.
The complaint alleged that ACGIH® is a government advisory committee; that ACGIH® is required to follow the procedures of the Administrative Procedures Act (APA) but does not do so; and that ACGIH® has tortiously published false or misleading information about the products sold by plaintiffs and interfered with the plaintiffs' business.
ACGIH® filed a Motion to Dismiss. On March 11, 2005, Judge Duross Fitzpatrick issued a 39-page decision granting the motion to dismiss on three of the four counts against ACGIH®. In its decision, the Court concluded that:
- Private litigants do not have the right to enforce the provisions of the Federal Advisory Committee Act (FACA), resulting in the dismissal of Count 1 of the complaint.
- In order for ACGIH® to be covered by the provisions of the Administrative Procedures Act (APA), ACGIH® must be a federal governmental agency. The facts alleged in the complaint fail to show this and Count 2 is dismissed.
- The Court is unable to conclude, based on the allegations of the complaint, whether plaintiffs have failed to state a claim under their deceptive trade practices claim and therefore this claim will proceed to discovery.
- In order to establish a cause of action for interference with business relations, plaintiffs must establish that without the interference, those relations were reasonably likely to develop in fact. Plaintiffs' complaint failed to meet this test and Count 4 was dismissed.
, this decision is a major victory," said ACGIH®
Board Chair Cindy Coe Laseter. ACGIH®
General Counsel, Steven John Fellman of Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C. in Washington, D.C. went on to say "Not only did Judge Fitzpatrick rule that the plaintiffs do not have a private right of action under the Federal Advisory Committee Act and ACGIH®
does not have to follow the Administrative Procedures Act, but at the end of his opinion he went out of his way to make it extremely clear that ACGIH®
has a First Amendment right to publish the TLVs®
, and any attempt to enjoin ACGIH®
from publishing the TLVs®
before such activity has occurred is a "classic example of an impermissible prior restraint."
This case is now scheduled to proceed to discovery on one count against ACGIH® and one count against the Federal defendants. At the end of discovery, the parties will be entitled to file a Motion for Summary Judgment. However, it should be clear that the major portion of the plaintiffs' complaint against ACGIH® has been dismissed.
To stay abreast of the latest information on these legal proceedings, please visit our website at www.acgih.org.
ACGIH® Worldwide is a member-based organization that advances worker health and safety through education and dissemination of scientific and technical knowledge. ACGIH® is one of the industry's leading publications resources, with approximately 400 titles relative to occupational and environmental health and safety, including the renowned TLVs® and BEIs® book. For more information visit the ACGIH® website at www.acgih.org or call our Member Services Representatives at 513-742-2020.