Amicus Curiae Brief — Philip Morris USA Inc., Petitioner v. Armand Fontaine, Individually and as Personal Representative of the Estate of Barbara Ellen Fontaine

No. 26-235

In the Supreme Court of the United States

PHILIP MORRIS USA INC.

PETITIONER,

v.

ARMAND FONTAINE, individually and as

personal representative of the

Estate of Barbara Ellen Fontaine

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS SUPREME JUDICIAL COURT

BRIEF OF THE FEDERATION OF DEFENSE &

CORPORATE COUNSEL AS AMICUS CURIAE

SUPPORTING PETITIONER

CHARLES L. MCCLOUD

WILLIAMS & CONNOLLY

LLP

680 Maine Avenue S.W.

Washington, DC 20024

LAWRENCE EBNER

Counsel of Record

CAPITAL APPELLATE

ADVOCACY PLLC

1701 Pennsylvania Ave. N.W.

Suite 200

Washington, DC 20006

(202) 872-0011

lawrence.ebner@capitalappellate.com

Counsel for Amicus Curiae the

Federation of Defense & Corporate Counsel

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE.................................. 1

SUMMARY OF ARGUMENT ............................................ 2

ARGUMENT .......................................................................... 3

I. A Presumption Against Express Preemption Is

Doctrinally Unsound....................................................... 3

II. A Presumption Against Express Preemption

Creates Uncertainty That Harms Defense Counsel

and Their Clients ............................................................. 7

CONCLUSION .................................................................... 12

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Air Evac EMS, Inc. v. Cheatham,

910 F.3d 751 (4th Cir. 2018) ............................................ 8

Altria Group v. Good, 555 U.S. 70 (2008) ....................... 3, 9

Atay v. County of Maui, 842 F.3d 688 (9th Cir. 2016) ..... 8

Biden v. Nebraska, 600 U.S. 477 (2023) .......................... 4, 5

Brown v. Mortensen, 253 P.3d 522 (Cal. 2011) .................. 8

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ................. 4

Cal. Rest. Ass’n v. City of Berkeley,

89 F.4th 1094 (9th Cir. 2024) ...................................... 8, 9

Chamber of Com. of U.S. v. Whiting,

563 U.S. 582 (2011) ....................................................... 2, 4

Cipollone v. Liggett Group,

505 U.S. 504 (1992) .................................................. 3, 4, 6

Cole v. Pa. Dep’t of Envt’l Prot.,

329 A.3d 1228 (Pa. 2025) .................................................. 8

Council for Responsible Nutrition v. James,

159 F.4th 155 (2d Cir. 2025) ............................................ 8

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013) ........................................................... 4

Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328 (2008) ... 10

Dialysis Newco, Inc. v. Cmty. Health Sys. Grp. Health

Plan, 938 F.3d 246 (5th Cir. 2019) ................................. 8

EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017) ...... 8

Kansas v. Garcia, 589 U.S. 191 (2020) ................................ 5

Happel v. Guilford Cnty. Bd. of Educ.,

913 S.E.2d 174 (N.C. 2025).............................................. 8

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................................... 5

III

Page

Cases—continued:

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ................. 1, 9

Monsanto Co. v. Durnell, 146 S. Ct. 2001 (2026) .............. 7

Puerto Rico v. Franklin California Tax-Free Trust,

579 U.S. 115 (2016) ................................................ 2-4, 7-9

State v. Norfolk S. Ry. Co., 107 N.E.3d 468 (Ind. 2018)... 8

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).................... 5

R.J. Reynolds Tobacco Co. v. City of Edina,

60 F.4th 1170 (8th Cir. 2023) .......................................... 8

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)................... 4

Seven County Infrastructure Coal. v. Eagle County,

605 U.S. 168 (2025) ........................................................... 7

Shuker v. Smith & Nephew, PLC,

885 F.3d 760 (3d Cir. 2018).............................................. 8

Ter Beek v. City of Wyoming,

846 N.W.2d 531 (Mich. 2014) .......................................... 8

Town of Delafield v. Cent. Transp. Kriewaldt,

944 N.W.2d 819 (Wis. 2020) ............................................ 8

Other Authorities:

Amy Coney Barrett, Substantive Canons and Faithful

Agency, 90 B.U. L. Rev. 109 (2010) ............................... 6

Stephen Gardbaum, New Deal Constitutionalism and

the Unshackling of the States,

64 U. Chi. L. Rev. 483 (1997) .......................................... 6

Jack Goldsmith, Statutory Foreign Affairs Preemption,

2000 Sup. Ct. Rev. 175. .................................................... 5

Caleb Nelson, Preemption,

86 Va. L. Rev. 225 (2000) ............................................. 6, 7

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts (2012) ............................. 4

IV

Page

Other Authorities—continued:

Marin R. Scordato, Federal Preemption of State Tort

Claims, 35 U.C. Davis L. Rev. 1 (2001) ........................ 6

Catherine M. Sharkey, Products Liability Preemption:

An Institutional Approach,

76 Geo. Wash. L. Rev. 449 (2008)................................. 10

Jay B. Sykes, Nicole Vanatko, Cong. Rsch. Serv.,

R45825, Federal Preemption: A Legal Primer (2023)

............................................................................................ 11

U.S. Const. art. VI, cl. 2 ......................................................... 5

Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the

Composition and Selection of the National

Government, 54 Colum. L. Rev. 543 (1954) ................. 6

INTEREST OF AMICUS CURIAE*

The Federation of Defense & Corporate Counsel

(“FDCC”) is a not-for-profit corporation composed of recognized leaders in the legal community who represent the

interests of civil defendants, including publicly and privately owned businesses, public entities, and individual

defendants. FDCC members work in private practice, as

in-house counsel, and as insurance claims representatives.

A significant number of FDCC members practice in the

trial and appellate courts of the United States at both the

federal and state level.

Since 1936, the FDCC has been dedicated to advancing the principles of integrity, professionalism, and fair

civil justice. A touchstone of a fair judicial system is predictability for all litigants, no matter the court, the state,

or the judge. This case involves a doctrine that has for too

long undermined predictability in this Nation’s court systems: the presumption against preemption.

The presumption against preemption holds that “[i]n

all pre-emption cases,” courts should “start with the assumption that the historic police powers of the States

[are] not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (cleaned up).

Particularly as applied to statutes containing an express

*

Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief. Pursuant

to Rule 37.2, amicus affirms that all parties received notice of amicus’s intent to file this brief on September 11, 2026, more than 10 days

before the due date.

(1)

2

preemption provision, this mistaken presumption has created significant uncertainty that FDCC members must

confront daily when advising clients on preemption defenses. The FDCC submits this brief to urge the Court to

grant the petition, hear this case on the merits, and, in doing so, bring clarity and uniformity to the doctrine of

preemption.

SUMMARY OF ARGUMENT

By invoking a “presumption against the pre-emption

of state police power regulations,” Pet.App.36, to narrow

an express preemption clause, the Massachusetts Supreme Judicial Court (“SJC”) perpetuated an approach to

preemption that this Court rightly repudiated a decade

ago in Puerto Rico v. Franklin California Tax-Free

Trust, 579 U.S. 115 (2016). The SJC’s decision has ramifications that extend far beyond the tobacco industry. The

continued existence of this unfounded and anachronistic

presumption threatens the coherence of preemption law

across virtually every field of federal regulation—medical

devices, banking, air transportation, pesticides, meat inspection, and more.

This brief will make two points.

First, applying a presumption against preemption to

express preemption clauses is doctrinally unsound. When

Congress enacts a statute, the statutory text is “the best

evidence of Congress’ preemptive intent.” Chamber of

Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011) (citation

omitted). And Franklin made clear that when it comes to

interpreting express preemption clauses, courts should

“focus on the plain wording of the clause.” Franklin, 579

U.S. at 125 (citations omitted), instead of invoking any

presumption. Franklin’s instruction was unequivocal and

unqualified. It was also correct. Whatever its merits in

3

implied preemption cases, invoking the presumption

against preemption in cases involving express preemption

provisions is deeply inconsistent with ordinary statutory

interpretation. And neither the Supremacy Clause nor

general principles of federalism support that approach.

Second, the persistence of the presumption in some jurisdictions, and its abandonment in others, has created

tremendous uncertainty in courts across the country. As

petitioner explains, Pet.26-28, the lower courts are fractured. Some have followed Franklin’s instruction and

abandoned the presumption for express preemption

clauses. But many others have treated the presumption

as alive and well, relying on Cipollone v. Liggett Group,

505 U.S. 504 (1992), and Altria Group v. Good, 555 U.S. 70

(2008), while ignoring Franklin. The result is that the

same statutory clause means different things depending

on the forum. That inconsistency makes it enormously

difficult for defense counsel, like the FDCC’s members, to

advise their client and litigate preemption defenses. It

also hurts the businesses and individuals that FDCC

members represent, who find themselves facing conflicting and unpredictable legal rules across different jurisdictions.

ARGUMENT

I.

A Presumption Against Express Preemption Is Doctrinally Unsound

The Court should use this case to declare, with finality,

that the presumption against preemption has no place

when it comes to express preemption clauses.

A. In Franklin, the Court stated plainly that where a

statute “contains an express pre-emption clause,” courts

“do not invoke any presumption against pre-emption but

instead ‘focus on the plain wording of the clause, which

4

necessarily contains the best evidence of Congress’ preemptive intent.’” 579 U.S. at 125 (quoting Whiting, 563

U.S. at 582 (citations omitted)). The Court’s straightforward instruction to focus on the text was not limited to the

bankruptcy context in which Franklin arose. To the contrary, Franklin’s statement reflected a time-honored

principle of interpretation applicable across all types of

statutes: when Congress has spoken clearly, “the ordinary tools of statutory interpretation”—not normative

canons or presumptions—should govern the result.

Biden v. Nebraska, 600 U.S. 477, 507, 509 (2023) (Barrett,

J., concurring); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 293

(2012) (“[T]he preemption canon ought not to be applied

to the text of an explicit preemption provision.”). 1

Those ordinary tools should not go out the window just

because a statute involves preemption. Instead, as Justice Scalia explained in Cipollone, when “the pre-emption

provision was intended to sweep broadly, [a court’s] construction must sweep broadly as well.” 505 U.S. at 548

(Scalia, J., dissenting). “And when it bespeaks a narrow

scope of pre-emption, so must [the court’s] judgment.” Id.

To the extent the presumption against preemption produces a different outcome, it is not acting as just another

interpretive tool courts sometimes use to discern congressional intent. It is a way for courts to evade Congress’s

considered decision to preempt state law and “adopt

1

In declining to apply the presumption against preemption, Franklin

finally made explicit what was implicit in several of the Court’s prior

decisions involving express preemption provisions. See, e.g., Riegel v.

Medtronic, Inc., 552 U.S. 312 (2008) (not mentioning the presumption); Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (same); Dan’s

City Used Cars, Inc. v. Pelkey, 569 U.S. 251 (2013) (same).

5

something other than the statute’s most natural meaning.” Nebraska, 600 U.S. at 509 (Barrett, J., concurring).

Such a practice is incompatible with the judicial obligation

to “independently interpret the statute and effectuate the

will of Congress subject to constitutional limits.” Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024).

B. The Supremacy Clause does not require that federal law should be given anything less than its natural

meaning when it comes into conflict with state law. Nothing in the Clause suggests the Framers wanted courts to

read federal law “narrowly,” Pet.App.36, just because

state police powers might be implicated by the words Congress chose. The Clause declares that federal statutes—

including express preemption statutes—“shall be the supreme Law of the Land” and that state judges “shall be

bound thereby.” U.S. Const. art. VI, cl. 2. The provision’s

broad text was “designed precisely to eliminate any residual presumption” against implied repeals of state law in

the face of federal law. Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175, 184.

Thus, as five Justices have explained, the Supremacy

Clause language signals “that courts should not strain to

find ways to reconcile federal law with seemingly conflicting state law.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 622

(2011) (plurality op.) (Thomas, J., joined by Roberts, C.J.,

Scalia & Alito, JJ.); Kansas v. Garcia, 589 U.S. 191, 21314 (2020) (Thomas, J., concurring, joined by Gorsuch, J.).

That kind of interpretive gymnastics would have been foreign to early American jurists, who when “confronting

preemption analyzed the issue without discussing any

special interpretive rule.” Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109,

153 n.211 (2010); see also Marin R. Scordato, Federal

Preemption of State Tort Claims, 35 U.C. Davis L. Rev.

6

1, 30 (2001) (observing that there is no historical “support

. . . for the conclusion that the [F]ramers intended any . . .

presumption to be read into” the Supremacy Clause).

C. Nor can a presumption against express preemption be justified by “principles of federalism and respect

for state sovereignty.” Cipollone, 505 U.S. at 533

(Blackmun, J., concurring in part and dissenting in part);

see Stephen Gardbaum, New Deal Constitutionalism and

the Unshackling of the States, 64 U. Chi. L. Rev. 483, 53640 (1997) (discussing origins of the modern presumption

against preemption). The design of our federal system

ensures that state sovereignty is respected by, among

other things, making the States’ voices heard through

their elected representatives in Congress. See generally

Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543

(1954). “Once Congress has decided upon the proposal

that it will enact, however, the political safeguards of federalism have done their work.” Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 300 (2000). There is no need to

further tip the scales in favor of state law by presuming

that Congress did not really mean what it said. And that

is especially true in cases like this one, where Congress

has adopted provisions that “plainly do manifest an intent

to supplant state law.” Id. at 291 (cleaned up).

If anything, the presumption against preemption undermines federalism by limiting Congress’s ability to

carve out discrete areas for federal regulation. Suppose,

for example, that Congress wishes to broadly preempt

state law in a particular area, but does not want to entirely

bar states from regulating. Notwithstanding the desire to

preserve some space for local authority, Congress will be

better off legislating in extremely sweeping terms, lest a

7

court read in unwanted loopholes for state police powers.

Neither Congress nor the States benefit from a rule that

encourages Congress to use a hacksaw rather than a scalpel when it comes to the displacement of state law.

II. A Presumption Against Express Preemption Creates Uncertainty That Harms Defense Counsel and Their Clients

“In deciding cases involving the American economy,

courts should strive, where possible, for clarity and predictability.” Seven County Infrastructure Coal. v. Eagle

County, 605 U.S. 168, 192 (2025). Especially as applied to

express preemption provisions, the presumption against

preemption is both unclear and unpredictable. The result

is a morass of conflicting approaches that creates serious

uncertainty for FDCC members and their clients. Only

this Court can provide the nationwide uniformity that this

“vitally important,” Nelson, supra p.6, at 225-26, area of

the law demands.

A. This Court has not applied a presumption against

preemption to any express preemption clause in the decade since Franklin. The Court’s most recent expresspreemption decision, Monsanto Co. v. Durnell, 146 S. Ct.

2001 (2026), construed FIFRA’s express preemption provision without any reference to the presumption, confirming that the presumption plays no role in the interpretation of express preemption clauses.

Unfortunately, not all lower courts have followed this

Court’s lead. While many federal courts of appeals have

taken Franklin at its word and declined to apply the presumption to express preemption clauses, 2 other circuits

2

See, e.g., Dialysis Newco, Inc. v. Cmty. Health Sys. Grp. Health

Plan, 938 F.3d 246, 258 (5th Cir. 2019); Air Evac EMS, Inc. v.

Cheatham, 910 F.3d 751, 761-62 (4th Cir. 2018); EagleMed LLC v.

8

have read Franklin narrowly and adhere to the presumption. 3 The problem is even worse on the state side. Like

the SJC in the decision below, several state supreme

courts continue to treat the presumption as governing

law—confining Franklin to its facts or ignoring it outright. 4

The confusion is palpable. As Judge O’Scannlain has

observed, the law after Franklin “remains troubling and

confused—beset by tensions in Supreme Court precedents, disagreement among the circuits, and important

practical questions still unanswered.” Cal. Rest. Ass’n v.

City of Berkeley, 89 F.4th 1094, 1108 (9th Cir. 2024)

(O’Scannlain, J., concurring).

The Franklin Court did not acknowledge—and,

most importantly, did not expressly overturn—

the decades of decisions applying the presumption against preemption to express-preemption

provisions. And the Franklin Court did not resolve—nor even discuss—the scope of the rule it

was applying. Was the Franklin Court simply

electing to “not invoke” the presumption in a case

easily answered by the “plain” statutory text?

Cox, 868 F.3d 893, 903 (10th Cir. 2017) (same); Atay v. County of

Maui, 842 F.3d 688, 699 (9th Cir. 2016).

3

See, e.g., Council for Responsible Nutrition v. James, 159 F.4th 155,

171 (2d Cir. 2025); Shuker v. Smith & Nephew, PLC, 885 F.3d 760,

771 (3d Cir. 2018); R.J. Reynolds Tobacco Co. v. City of Edina, 60

F.4th 1170, 1176-77 (8th Cir. 2023).

4

See, e.g., Cole v. Pa. Dep’t of Envt’l Prot., 329 A.3d 1228, 1241, 1250

n.104 (Pa. 2025); Happel v. Guilford Cnty. Bd. of Educ., 913 S.E.2d

174, 202 n.8 (N.C. 2025); Town of Delafield v. Cent. Transp.

Kriewaldt, 944 N.W.2d 819, 821 (Wis. 2020); Indiana v. Norfolk S.

Ry. Co., 107 N.E.3d 468, 474 (Ind. 2018); Ter Beek v. City of Wyoming, 846 N.W.2d 531, 536-37 (Mich. 2014); Brown v. Mortensen, 253

P.3d 522, 529 (Cal. 2011).

9

Id. at 1110. Philip Morris’s petition presents an ideal opportunity for the Court to provide definitive answers to

these questions to “the lower courts, which depend on this

Court’s guidance, and to litigants, who must conform their

actions to the Court’s interpretation of federal law,” Altria Grp., 555 U.S. at 98 (Thomas, J., dissenting).

B. For the defense and corporate counsel who comprise the FDCC’s membership, the current doctrinal disarray is not an academic concern—it is a daily challenge.

A preemption defense is often among the most consequential defenses available to a regulated company. FDCC

members thus routinely advise clients on whether federal

law forecloses state-law claims. Yet defense counsel will

inevitably struggle to provide reliable advice to clients

about the scope of federal preemption when the same statutory clause is interpreted differently depending on

whether the case is filed in state or federal court—or in

which state. In some cases, defense counsel are forced

into the untenable position of telling clients: “The answer

depends on which court you are sued in and whether the

judge takes Franklin seriously.”

Moreover, even in courts that apply the presumption

against preemption, it is often unclear what counts as the

kind of “historic police power[],” Lohr, 518 U.S. at 485 (citation omitted), that Congress is presumed to have preserved. The phrase “police power” was “long abandoned

as a mere tautology” precisely because “[i]t is difficult to

identify any state law” that could not be characterized as

touching on the areas where states exercised primary authority prior to the ratification. See Dep’t of Revenue of

Ky. v. Davis, 553 U.S. 328, 365-66 (2008) (Kennedy, J., dissenting). Yet the presumption against preemption depends on precisely that amorphous concept. Unsurpris-

10

ingly, then, the presumption against preemption encourages plaintiffs’ lawyers (and sympathetic judges) to draw

arbitrary distinctions that conveniently spare whatever

claims the plaintiff is currently pressing.

The problem is magnified by the decisive weight that

many courts give to the presumption against express

preemption. As one commentator has observed, “where

[the presumption] rears its head, its effect is seemingly

outcome determinative.” Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach,

76 Geo. Wash. L. Rev. 449, 506 (2008). Put differently, a

presumption against express preemption is not a neutral

tool of analysis; it is a thumb on the scale that predetermines results. And when some courts apply the presumption and others do not, the outcome of a preemption defense depends not on the merits of the argument but on

the forum in which the case is litigated—a forum that

plaintiffs almost always pick.

When a preemption defense that should succeed on

the merits is defeated by the presumption, the consequences for defendants are severe. This case vividly illustrates the point. The SJC acknowledged that a failure-towarn claim based on the removal of voluntary warnings

would be preempted—yet held that the identical theory,

repackaged as a fraud claim, escaped preemption. As petitioner explains, that formalistic distinction converts an

express preemption provision into a “mere pleading requirement.” Pet.13. That evasion of Congress’s handiwork would not fly in many federal courts. But because

respondents chose to file in state court, even an express

statement by Congress that state-law claims are

preempted may not be enough.

11

The problem is not confined to the tobacco context.

“[P]reemptive federal statutes shape the regulatory environment for most major industries, including drugs and

medical devices, banking, air transportation, securities,

automobile safety, and tobacco.” Jay B. Sykes, Nicole

Vanatko, Cong. Rsch. Serv., R45825, Federal Preemption: A Legal Primer (2023). Lower courts grappling with

the presumption’s applicability to express preemption

provisions have considered cases involving the Medical

Device Amendments, FIFRA, the Airline Deregulation

Act, the Federal Meat Inspection Act, ERISA, and numerous other statutes. Under all of these statutes, defendants face the threat that meritorious preemption defenses will be narrowed to nothingness by a presumption

this Court has abandoned.

FDCC members represent clients across hundreds of

industries, many of whom operate in multiple states. The

inability to predict whether a court will apply a presumption against an express preemption clause makes it challenging at best to evaluate litigation risk, advise on compliance, or make sound strategic decisions in preemption

cases. Without uniformity, manufacturers are forced to

either comply with a multitude of conflicting and burdensome state laws or risk being subjected to expensive lawsuits and inconsistent jury verdicts. These increased

costs of doing business, in turn, may ultimately be passed

on to consumers in the form of higher prices and reduced

product availability.

It does not have to be this way. The Court can grant

the petition and resolve the splits in the lower courts that

threaten to impede national uniformity of the law. Only

by doing so can this Court restore the predictability and

uniformity that Congress intended when it enacted ex-

12

press preemption provisions—and that the defense practitioners who comprise the FDCC’s membership require

to fulfill their obligations to their clients and to the courts.

CONCLUSION

The petition for a writ of certiorari should be granted,

and the Court should make clear, once and for all, that the

presumption against preemption does not apply when

Congress has enacted an express preemption provision.

Respectfully submitted,

CHARLES L. MCCLOUD

WILLIAMS & CONNOLLY

LLP

680 Maine Avenue S.W.

Washington, DC 20024

September 23, 2026

LAWRENCE EBNER

Counsel of Record

CAPITAL APPELLATE

ADVOCACY PLLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 872-0011

lawrence.ebner@capitalappellate.com

Counsel for Amicus Curiae the

Federation of Defense & Corporate Counsel