throbber
Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 1 of 30 PageID #: 1865
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`
`AMAZON.COM INC.,
`
`
`
`
`
`No. 21-CV-767 (BMC)
`
`
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`ATTORNEY GENERAL LETITIA
`JAMES, in her official capacity as the
`Attorney General of the State of New
`York,
`
`
`
`
`Defendant.
`
`DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 2 of 30 PageID #: 1866
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES .......................................................................................................... ii
`
`PRELIMINARY STATEMENT .....................................................................................................1
`
`BACKGROUND .............................................................................................................................2
`
`ARGUMENT ...................................................................................................................................3
`
`I.
`
`Amazon Is Not Entitled To An Injunction. ..........................................................................4
`
`A.
`
`B.
`
`C.
`
`Amazon Has Not Shown Irreparable Injury. ...........................................................4
`
`Amazon Has Not Shown That an Injunction Is the Only Adequate
`Remedy. ...................................................................................................................7
`
`Neither the Balance of Hardships nor the Public Interest Supports Issuing
`an Injunction ............................................................................................................8
`
`II.
`
`III.
`
`IV.
`
`V.
`
`Amazon Is Not Entitled To A Declaratory Judgment. .........................................................8
`
`The OSH Act Does Not Preempt The OAG’s NYLL § 200 Claim. ..................................10
`
`The Primary-Jurisdiction Doctrine Is Not Applicable To The OAG’s Case. ....................13
`
`The NLRA Does Not Preempt The OAG’s §§ 215 And 740 Claims. ...............................17
`
`CONCLUSION ............................................................................................................................. 23
`
`
`
`
`
`
`i
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`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 3 of 30 PageID #: 1867
`
`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Arcadian Health Plan, Inc. v. Korfman,
`No. 1:10-CV-322-GZS, 2010 WL 5173624 (D. Me. Dec. 14, 2010) ........................................5
`
`Astiana v. Hain Celestial Grp., Inc.,
`783 F.3d 753 (9th Cir. 2015) ...................................................................................................15
`
`Brillhart v. Excess Ins. Co.,
`316 U.S. 491 (1942) ...................................................................................................................8
`
`Carley v. Gentry,
`No. 2:17-cv-02670-MMD-VCF, 2021 WL 2276458 (D. Nev. June 3, 2021) .........................15
`
`Case v. Ivey,
`No. 2:20-CV-777-WKW, 2021 WL 2210589 (M.D. Ala. June 1, 2021) ................................16
`
`Chamber of Commerce of U.S. v. Edmondson,
`594 F.3d 742 (10th Cir. 2010) ...................................................................................................5
`
`Chaulk Servs., Inc. v. Mass. Comm’n Against Discrim.,
`70 F.3d 1361 (1st Cir. 1995) ....................................................................................................22
`
`Cuomo v. Dreamland Amusements, Inc.,
`No. 08 Civ. 6321 (JGK), 2008 WL 4369270 (S.D.N.Y. Sept. 22, 2008) ..................................5
`
`Domnister v. Exclusive Ambulette, Inc.,
`607 F.3d 84 (2d Cir. 2010).................................................................................................20, 22
`
`eBay Inc. v. MercExchange, LLC,
`547 U.S. 388 (2006) ...................................................................................................................4
`
`Eccles v. Peoples Bank of Lakewood Vill.,
`333 U.S. 426 (1948) ...................................................................................................................9
`
`Ellis v. Tribune Television Co.,
`443 F.3d 71 (2d Cir. 2006).................................................................................................13, 16
`
`Farmer v. United Bhd. of Carpenters & Joiners of Am., Loc. 25,
`430 U.S. 290 (1977) .....................................................................................................17, 19, 20
`
`Fleet Bank, N.A. v. Burke,
`160 F.3d 883 (2d Cir. 1998).......................................................................................................3
`
`ii
`
`

`

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`
`Gade v. Nat. Solid Wastes Mgmt. Ass’n,
`505 U.S. 88 (1992) ...................................................................................................................13
`
`Great Lakes Dredge & Dock Co. v. Huffman,
`319 U.S. 293 (1943) ...................................................................................................................8
`
`Healthcare Ass’n of New York State, Inc. v. Pataki,
`471 F.3d 87 (2d Cir. 2006)...........................................................................................17, 22, 23
`
`Linn v. United Plant Guard Workers of Am., Loc. 114,
`383 U.S. 53 (1966) ...................................................................................................................22
`
`Missouri Ins. Coal. v. Huff,
`947 F. Supp. 2d 1014 (E.D. Mo. 2013)......................................................................................7
`
`Missouri Ins. Coal. v. Huff,
`No. 12 Civ. 2354 (AGF), 2012 WL 6681688 (E.D. Mo. Dec. 21, 2012) ..................................6
`
`Morales v. Trans World Airlines, Inc.,
`504 U.S. 374 (1992) ...............................................................................................................4, 5
`
`New York v. Solvent Chem. Co.,
`664 F.3d 22 (2d Cir. 2011).........................................................................................................9
`
`Pa. Nurses Ass’n v. Pennsylvania State Educ. Ass’n,
`90 F.3d 797 (3d Cir. 1996).......................................................................................................18
`
`Palmer v. Amazon.com Inc.,
`498 F. Supp. 3d 359 (E.D.N.Y. 2020) ............................................................................. passim
`
`Palmer v. Amazon.com Inc.,
`No. 1:20-cv-02468-BMC (July 28, 2020)................................................................................14
`
`Puffer’s Hardware, Inc. v. Donovan,
`742 F.2d 12 (1st Cir. 1984) ......................................................................................................13
`
`Queenside Hills Realty Co. v. Saxl,
`328 U.S. 80 (1946) ...................................................................................................................19
`
`Reuters Ltd. v. United Press Int’l, Inc.,
`903 F.2d 904 (2d Cir. 1990).......................................................................................................6
`
`Rittmann v. Amazon,
`971 F.3d 904 (9th Cir. 2020) .....................................................................................................7
`
`San Diego Bldg. Trades Council, Millmen’s Union, Loc. 2020 v. Garmon,
`359 U.S. 236 (1959) ......................................................................................................... passim
`
`iii
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`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 5 of 30 PageID #: 1869
`
`Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters,
`436 U.S. 180 (1978) ...........................................................................................................19, 20
`
`Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc.,
`60 F.3d 27 (2d Cir. 1995)...........................................................................................................6
`
`Weisshaus v. Cuomo,
`No. 20-cv-5826 (BMC), 2021 WL 103481 (E.D.N.Y. Jan. 11, 2021) ......................................4
`
`Wilcox v. Niagara of Wis. Paper Corp.,
`965 F.2d 355 (7th Cir. 1992) ...................................................................................................12
`
`Wilton v. Seven Falls Co.,
`515 U.S. 277 (1995) ...................................................................................................................9
`
`Wis. Dep’t of Indus., Labor & Human Relations v. Gould,
`475 U.S. 282 (1986) ...........................................................................................................21, 22
`
`Younger v. Harris,
`401 U.S. 37 (1971) .................................................................................................................3, 4
`
`STATE STATUTES
`
`New York Executive Law
`§ 63(12) ....................................................................................................................................14
`
`New York Labor Law
`§ 27...........................................................................................................................................18
`§ 200................................................................................................................................. passim
`§ 215...............................................................................................................................2, 17, 21
`§ 740...............................................................................................................................2, 17, 21
`
`
`
`FEDERAL STATUTES
`
`29 U.S.C.
`
`§ 653(b)(4) ...................................................................................................................10, 11, 13
`§ 655................................................................................................................................. passim
`§ 667.............................................................................................................................10, 12, 18
`
`Declaratory Judgment Act, 28 U.S.C.
`§ 2201(a) ................................................................................................................................8, 9
`
`iv
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`

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`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 6 of 30 PageID #: 1870
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`FEDERAL REGULATIONS
`
`29 C.F.R.
`§ 1904.4....................................................................................................................................12
`§ 1910, Subpart U ..............................................................................................................10, 15
`§ 1910.133(a)(1) ......................................................................................................................12
`§ 1910.134(a)(1) ......................................................................................................................12
`§ 1910.138(a) .....................................................................................................................11, 12
`§§ 1910.141(a)–(h) ............................................................................................................11, 12
`
`MISCELLANEOUS AUTHORITIES
`
`Emily Anthes, The Delta Variant: What Scientists Know, The New York Times
`(updated June 30, 2021) ...........................................................................................................16
`
`
`
`
`
`
`
`
`v
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`

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`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 7 of 30 PageID #: 1871
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`Defendant Attorney General Letitia James (“OAG”) respectfully submits this
`
`memorandum of law in opposition to Amazon.com, Inc.’s (“Amazon”) motion for summary
`
`judgment.
`
`PRELIMINARY STATEMENT
`
`During an unprecedented pandemic that closed businesses, schools, and public spaces,
`
`the State of New York permitted companies like Amazon to continue in-person operations so
`
`long as they took adequate measures to protect their workforce. After a nearly yearlong
`
`investigation by the OAG into Amazon’s health-and-safety protocols revealed that Amazon was
`
`not taking required precautions to keep their workers safe from COVID-19, Amazon raced to the
`
`courthouse to seek declaratory and injunctive relief to thwart state law, state court jurisdiction,
`
`and the lawful enforcement efforts of the OAG. This Court should deny Amazon’s attempt to
`
`avoid its responsibilities under state law.
`
`As a threshold matter, Amazon has failed to show it is entitled to a permanent injunction
`
`or declaratory judgment. By its own admission, Amazon offers no concrete facts supporting
`
`irreparable injury. At the same time, it fails to explain why the defense it is mounting in the
`
`OAG’s state court action does not provide it access to an adequate remedy. And the only way
`
`the balance of hardships or public interest could favor Amazon is if the OAG’s action is actually
`
`unlawful, which, as explained below, it is not.
`
`First, the Occupational Safety and Health Act (“OSH Act”) does not preempt the OAG’s
`
`health-and-safety claims. As this Court has already recognized, there is no federal standard with
`
`which the OAG’s claims could conflict, and New York Labor Law (“NYLL”) § 200 constitutes
`
`statutory tort law, which falls under the OSH Act’s savings clause. No developments since
`
`Palmer—and certainly not Occupational Health and Safety Administration (“OSHA”) standards
`
`1
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 8 of 30 PageID #: 1872
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`that predate that decision—warrant reconsideration of the Court’s holdings. While the Court
`
`applied the primary-jurisdiction doctrine in Palmer, the doctrine is properly analyzed on a case-
`
`by-case basis and the OAG’s case merits different treatment.
`
`Second, the National Labor Relations Act (“NLRA”) does not preempt the OAG’s
`
`retaliation claims. The Supreme Court has long recognized an exception to NLRA preemption
`
`where, as here, state laws are rooted in significant state interests and pose little risk to the
`
`primacy of the NLRA. Considering the OAG’s paramount interest in preventing viral clusters
`
`from emerging at massive Amazon warehouses during a once-in-a-century pandemic and the
`
`distinct conduct at issue under the OAG’s state law claims, the exception applies with full force
`
`here. Even if it did not, the lack of a threat to the NLRA’s federal scheme is, in itself, sufficient
`
`grounds for rejecting Amazon’s preemption argument. Accordingly, the Court should deny
`
`Amazon’s motion for summary judgment.
`
`BACKGROUND
`
`In March 2020, the OAG began investigating Amazon’s COVID-19 response and
`
`retaliation against employees who complained about Amazon’s health-and-safety measures. The
`
`investigation showed that Amazon employees—performing services deemed essential by New
`
`York State—are working in unsafe conditions at Amazon’s New York City facilities, JFK8 and
`
`DBK1, and that employees, including Christian Smalls and Derrick Palmer, were retaliated
`
`against for voicing concerns for their safety. Accordingly, the OAG sued Amazon in state court
`
`on February 16, 2021, for violations of NYLL §§ 200, 215, and 740. Compl., NYSCEF Doc.
`
`No. 1, People v. Amazon.com Inc., No. 450362/2021 (N.Y. Sup. Ct. Feb. 16, 2021) (“State
`
`Action”). Amazon filed this anticipatory declaratory judgment action one business day earlier.
`
`ECF No. 1. On May 3, the OAG moved to dismiss Amazon’s complaint. ECF No. 25. In lieu
`
`2
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 9 of 30 PageID #: 1873
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`of opposing the motion, Amazon amended its complaint on May 17. ECF No. 27 (“Am.
`
`Compl.”). On June 18, the OAG renewed its motion to dismiss on the grounds that there is no
`
`federal subject matter jurisdiction under Fleet Bank, N.A. v. Burke, 160 F.3d 883 (2d Cir. 1998);
`
`abstention under Younger v. Harris, 401 U.S. 37 (1971), is mandatory; declaratory judgment
`
`jurisdiction should be declined; and Amazon’s claims fail as a matter of law. See generally Def.
`
`Mem. of Law in Supp. of Mot. to Dismiss (“OAG Mem. Supp. MTD”) ECF No. 32. Amazon
`
`moved for summary judgment at the same time. Pl. Mem. of Law. in Supp. of Mot. for Summ. J.
`
`(“Amazon Mem. Supp. MSJ”) ECF No. 33-1. Meanwhile, on May 25, Amazon moved to
`
`dismiss the OAG’s State Action based on, inter alia, the federal preemption defenses it asserts
`
`here. See Defs. Mem. of Law in Supp. of Mot. to Dismiss, NYSCEF Doc. No. 27, People v.
`
`Amazon.com Inc., No. 450362/2021 (N.Y. Sup. Ct. May 25, 2021). The state court will hear
`
`argument on Amazon’s motion on July 14.
`
`
`
`ARGUMENT
`
`As an initial matter, as the OAG has explained in its motion to dismiss, the Court lacks
`
`subject matter jurisdiction under Fleet because Amazon seeks anticipatory declaratory and
`
`injunctive relief while disputing state law. See OAG Mem. Supp. MTD at 4–5. Moreover, even
`
`if there were jurisdiction, Younger abstention would be mandatory because the OAG’s action is
`
`pending in state court; a safe and retaliation-free workplace is an important state interest; and the
`
`State Action affords an adequate opportunity for judicial review of Amazon’s preemption
`
`defenses. Id. at 5-11.
`
`Even if the Court reaches the merits of Amazon’s motion for summary judgment,
`
`however, it should be denied.
`
`3
`
`

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`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 10 of 30 PageID #: 1874
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`Amazon Is Not Entitled To An Injunction
`
`I.
`
`
`Amazon cannot demonstrate that it is entitled to an injunction. To obtain a permanent
`
`injunction, a plaintiff must show that (1) it has been irreparably injured, (2) remedies at law are
`
`inadequate, and both (3) the balance of hardships and (4) the public interest favor granting the
`
`injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). As Amazon has made
`
`none of these showings, it would not be entitled to injunctive relief—even if the Court does not
`
`dismiss this case for lack of federal jurisdiction or abstain under Younger.
`
`A. Amazon Has Not Shown Irreparable Injury
`
`First, Amazon has not been irreparably injured. Amazon makes two assertions:
`
`(a) “enforcement of a preempted—and thus unconstitutional—law constitutes irreparable injury”
`
`(that is, does so per se, obviating the need for a specific showing); and (b) the OAG’s effort to
`
`enforce New York law “also irreparably harms Amazon by damaging Amazon’s reputation and
`
`good will.” Amazon Mem. Supp. MSJ at 23. Neither assertion has merit.
`
`With respect to Amazon’s first assertion, this Court—as Amazon admits—has recognized
`
`that the possibility that a preempted law might be enforced does not create per se irreparable
`
`injury. Weisshaus v. Cuomo, No. 20-cv-5826 (BMC), 2021 WL 103481, at *5 (E.D.N.Y. Jan.
`
`11, 2021) (“Plaintiff must point to some other harm.”). Amazon calls Weisshaus
`
`“distinguishable” because whereas Amazon faces “threatened enforcement action” the plaintiff
`
`in Weisshaus supposedly did not, but the Court noted in Weisshaus that “if plaintiff refuses to
`
`comply with the Executive Order, he will face a substantial fine.” Id.
`
`Amazon also relies on a statement in Morales v. Trans World Airlines, Inc., 504 U.S.
`
`374, 382 (1992), that the “prospect of state suit . . . supplies the necessary irreparable injury,”
`
`Amazon Mem. Supp. MSJ at 23 n.9, but Morales held that the prospect of suit can supply that
`
`4
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 11 of 30 PageID #: 1875
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`injury in certain circumstances, including those in Morales—not that every threatened
`
`enforcement action is per se irreparable harm.1 Morales enjoined the Texas Attorney General
`
`from suing to enforce state guidelines for air travel advertisements when federal law expressly
`
`prohibited states from “enacting or enforcing any . . . provision having the force and effect of law
`
`relating to rates, routes, or services of any air carrier.” Morales, 504 U.S. at 383. In that context,
`
`the Supreme Court found injunctive relief against enforcement of the preempted law available:
`
`not per se, but “at least when repetitive penalties attach to continuing or repeated violations and
`
`the moving party lacks the realistic option of violating the law once and raising its federal
`
`defenses,” leaving it “a Hobson’s choice.” Id. at 381.
`
` Amazon has not asserted that the prospect of repetitive penalties makes it unrealistic to
`
`raise its federal defenses or that as a practical matter it is being forced to knuckle under to the
`
`OAG. On the contrary, Amazon: (a) has declared that its course of action is proper even under
`
`New York law and that it neither needs nor plans to change course, see generally Am. Compl.,
`
`and (b) not only can, but already has, asserted its federal-law defenses in the State Action, where
`
`its motion to dismiss is scheduled to be heard on July 14. Nothing in Morales suggests that
`
`being sued, by itself, is irreparable harm.2
`
`
`1 Besides Morales, Amazon cites two out-of-circuit decisions that found a likelihood of
`irreparable harm in the context of affirming preliminary injunctions. Arcadian Health Plan, Inc.
`v. Korfman, No. 1:10-CV-322-GZS, 2010 WL 5173624 (D. Me. Dec. 14, 2010), states: “A party
`may be irreparably injured in the face of the threatened enforcement of a preempted law.” Id. at
`*8 (emphasis added). And Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 771
`(10th Cir. 2010), found that particular state action was likely to cause irreparable harm—not that
`threatened action is irreparable harm per se. Specifically, Edmondson found that enforcing a
`state requirement that businesses use a certain method to verify employees’ work authorization
`would likely cause irreparable harm since following the law was costly—with no means of
`recovering the costs later—while defying the law meant debarment from state contracts.
`2 Having to make a legal argument in state rather than federal court is also not irreparable injury.
`Cf. Cuomo v. Dreamland Amusements, Inc., No. 08 Civ. 6321 (JGK), 2008 WL 4369270, at *11
`
`5
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 12 of 30 PageID #: 1876
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` Amazon also claims that the OAG’s “exercise of regulatory authority . . . irreparably
`
`harms Amazon by damaging Amazon’s reputation.” Amazon Mem. Supp. MSJ at 23. By way
`
`of support, Amazon states that the OAG publicly criticized Amazon and sent it a letter (which
`
`National Public Radio obtained) giving a preliminary assessment of the OAG investigation, and
`
`that the OAG’s conclusions about Amazon are “wrong[]” and “unfair[].” Id. at 24. But public
`
`criticism is not evidence of actual or potential harm to Amazon’s reputation, still less its
`
`business. Instead, Amazon describes the “irreparable harm done” as “impossible to measure.”
`
`Id.
`
`Effectively, Amazon is asking for an injunction despite lack of any evidence of
`
`irreparable injury. Although Amazon cites two decisions finding that non-measurable injury to
`
`reputation supported a preliminary injunction, both involved harm to reputation that flowed
`
`directly from denial of access to a defendant supplier.3 By contrast, Amazon vaguely claims to
`
`have been “denigrate[d]” and “publicly and unfairly maligned,” Amazon Mem. Supp. MSJ at
`
`24—assertions which would be no different had the Attorney General simply criticized
`
`Amazon.4 Amazon does not allege the actual or potential loss of customers, vendors, or business
`
`
`(S.D.N.Y. Sept. 22, 2008) (“State courts routinely hear cases in which federal preemption is
`asserted as a defense.”).
`3 Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 908 (2d Cir. 1990), involved the
`likelihood that cutting off a wire service’s access to photos would lead customers to drop
`subscriptions, “so that interrupting the flow of pictures even briefly threatens [the plaintiff’s]
`continued viability.” The injunction in Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d
`27, 38 (2d Cir. 1995), maintained the plaintiff’s access to an “opportunity to become a major
`publisher of children’s books” and explained that “loss of prospective goodwill can constitute
`irreparable harm,” but only on “a clear showing that a product . . . is a truly unique opportunity . .
`. . We expect the ‘clear showing’ standard to be infrequently met.”
`4 The sole, unreported decision which Amazon claims found that “enforcement actions”
`irreparably damage reputation and good will so as to support an injunction, Missouri Ins. Coal. v.
`Huff, No. 12 Civ. 2354 (AGF), 2012 WL 6681688, (E.D. Mo. Dec. 21, 2012), granted a
`temporary restraining order the same day the TRO hearing was held. Not only did the TRO cite
`harm beyond damage to reputation, but the court’s later, more considered ruling, granting a
`
`6
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 13 of 30 PageID #: 1877
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`opportunities resulting from the OAG’s lawsuit. Indeed, over the course of the pandemic (using
`
`the period Q2-2020 through Q1-2021), Amazon generated more than $213 billion in revenues
`
`from its online sales—corresponding to a 44% growth from revenues generated for the same
`
`period the prior year (i.e., Q2-2019 through Q1-2020). Am. Compl., NYSCEF Doc. No. 15,
`
`People v. Amazon.com Inc., No. 450362/2021 (N.Y. Sup. Ct. May 6, 2021) (“OAG Am.
`
`Compl.”) at ¶ 9; see also Rittmann v. Amazon, 971 F.3d 904, 915 (9th Cir. 2020) (noting
`
`Amazon’s description of itself as “one of the world’s largest online retailers”).
`
`B. Amazon Has Not Shown That an Injunction Is the Only Adequate Remedy
`
`With respect to the second prerequisite for a permanent injunction, Amazon makes only
`
`the completely conclusory statement that “[t]he OAG has refused to withdraw its claims, and the
`
`only adequate remedy is an injunction.” Amazon Mem. Supp. MSJ at 23. While it is true that
`
`the OAG has not withdrawn its well-founded claims, it is not true that Amazon’s only adequate
`
`remedy is an injunction. Amazon can assert its putative federal defenses in the State Action—
`
`and, indeed, it has already done so. See Defs. Mem. of Law in Supp. of Mot. to Dismiss,
`
`NYSCEF Doc. No. 27, People v. Amazon.com Inc., No. 450362/2021 (N.Y. Sup. Ct. May 25,
`
`2021). Amazon does not even attempt to argue, let alone provide any authority in support, that
`
`dismissal of the State Action is inadequate. It has simply asserted elsewhere that “all the state
`
`court can do is dismiss the OAG’s lawsuit.” See Pl. Pre-Motion Letter, ECF No. 30 at 2. In
`
`practice, however, dismissal by the state court would provide adequate relief. For this reason
`
`alone, Amazon cannot demonstrate that it is entitled to an injunction.
`
`
`request for a declaratory judgment (and declining to grant an injunction), did not even mention
`reputation or good will. Instead, the court discussed only that the challenged law “force[d]
`health insurers to risk fines and penalties by choosing between compliance with state or federal
`law.” Missouri Ins. Coal. v. Huff, 947 F. Supp. 2d 1014, 1020 (E.D. Mo. 2013).
`
`7
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 14 of 30 PageID #: 1878
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`C. Neither the Balance of Hardships nor the Public Interest Supports Issuing an
`Injunction
`
`Amazon’s argument that a permanent injunction is supported by the balance of hardships
`
`and the public interest amounts simply to claiming that Amazon is right on the merits of its
`
`preemption claims. See Amazon Mem. Supp. MSJ at 25. As shown in the balance of this brief,
`
`that is not correct: Amazon’s preemption arguments fail. See infra 10–23. Moreover, the public
`
`has a strong interest in having the OAG enforce health-and-safety standards and anti-retaliation
`
`laws during this unprecedented pandemic. The OAG brought the State Action to protect
`
`Amazon workers, their families, and their communities from the spread of COVID-19 and to
`
`ensure that Amazon employees can raise concerns about workplace safety. Amazon’s
`
`unsuccessful attempt to remove the State Action to the Southern District of New York based on
`
`the same preemption claims has already delayed protection for its workers to the detriment of the
`
`public interest. Amazon’s attempt to stymie the OAG’s enforcement efforts should be rejected
`
`here as well.
`
`Further, as noted above, see supra 7, between the second quarter of 2020 and the first
`
`quarter of 2021—the height of the pandemic—Amazon generated more than $213 billion in
`
`revenues from on-line sales, a 44% growth over the prior year, making it unreasonable for
`
`Amazon to claim hardship in defending against the OAG’s State Action.
`
`Amazon Is Not Entitled To A Declaratory Judgment
`
`II.
`
`
`Nor is Amazon entitled to declaratory relief. The Declaratory Judgment Act (“DJA”) is
`
`an authorization, not a command, giving federal courts competence to make a declaration of
`
`rights but not imposing a duty to do so. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942);
`
`see also id. at 499 (Douglas, J., concurring); Great Lakes Dredge & Dock Co. v. Huffman, 319
`
`U.S. 293, 300–01 (1943). “A declaratory judgment, like other forms of equitable relief, should
`
`8
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 15 of 30 PageID #: 1879
`
`be granted only as a matter of judicial discretion, exercised in the public interest.” Eccles v.
`
`Peoples Bank of Lakewood Vill., 333 U.S. 426, 431 (1948). Wilton v. Seven Falls Co., 515 U.S.
`
`277, 286 (1995), instructs that federal courts should use that “unique and substantial discretion”
`
`to avoid piecemeal litigation and prevent forum shopping.
`
`Here, Amazon raced to file this case knowing full well that the OAG was planning to file
`
`an enforcement action soon in state court. See, e.g., Am. Compl. ¶ 13. The OAG brought its
`
`enforcement action, asserting NYLL claims, one business day later. Another federal court has
`
`already concluded that there is no basis for removing those claims to federal court. See ECF No.
`
`23-1 (S.D.N.Y. order). And Amazon’s challenges to that state-law enforcement proceeding can
`
`and are being litigated there. Amazon argues that “determining who should regulate these
`
`issues” is a “quintessential question for a federal court.” Amazon Mem. Supp. MSJ at 22. But
`
`Justice Bannon, who presides over the State Action, is well-equipped to answer the question,
`
`and, as noted, will hear argument on the preemption issues on July 14.
`
`As the OAG has explained in its motion to dismiss, to avoid piecemeal litigation and
`
`prevent Amazon from forum shopping, the Court should decline to exercise its discretion under
`
`the DJA. The factors recognized in New York v. Solvent Chem. Co., 664 F.3d 22, 26 (2d Cir.
`
`2011), call for Wilton abstention, and the OAG incorporates those arguments by reference here.
`
`OAG Mem. Supp. MTD at 11–15.5
`
`
`5 Amazon has maintained that Wilton does not apply to “actions [], like this one, [that] involve . .
`. claims for injunctive relief.” Pl. Pre-Motion Letter, ECF No. 30 at 2. While the OAG has
`explained in its motion to dismiss that including a request for injunctive relief is not enough to
`defeat Wilton abstention, OAG Mem. Supp. MTD at 13–14, the fact that Amazon cannot make
`the necessary showing for an injunction, see supra 4–8, further confirms that Wilton is
`appropriately applied here.
`
`9
`
`

`

`Case 1:21-cv-00767-BMC Document 36 Filed 07/09/21 Page 16 of 30 PageID #: 1880
`
`The OSH Act Does Not Preempt The OAG’s NYLL § 200 Claim
`
`III.
`
`
`With respect to the merits, the OSH Act does not preempt state regulation of Amazon’s
`
`workplace safety response to COVID-19. The Act includes a jurisdictional savings clause,
`
`which expressly provides that “[n]othing in this chapter shall prevent any State agency or court
`
`from asserting jurisdiction under State law over any occupational safety or health issue with
`
`respect to which no standard is in effect under section 655 of this title.” 29 U.S.C. § 667(a). The
`
`Act also includes an additional savings clause, which preserves “common law or statutory rights,
`
`duties, or liabilities of employers and employees under any law with respect to injuries, diseases,
`
`or death of employees arising out of, or in the course of, employment.” 29 U.S.C. § 653(b)(4).
`
`As this Court already recognized in Palmer, each of these clauses provides a basis to

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