A California court judgment used an “avant-garde form of public-nuisance law,” leaving three lead paint companies stuck with hundreds of millions of dollars in abatement costs.
That’s according to the Washington Legal Foundation’s amicus brief, filed on Wednesday, in support of a petition before the U.S. Supreme Court to review a 2014 judgment against Sherwin-Williams Co., Conagra Grocery Products Co. and NL Industries Inc. The WLF said those three companies were “stuck with the bill” that Sherwin-Williams estimated to be between $409 million and $730 million.
“The way restaurants bill is simple, orderly and fair,” wrote Corbin Barthold, litigation counsel at the WLF. “You pay for the food you order. But imagine that late one evening, around closing time, after dinner with a friend, the waiter hands you a bill for $5,000. You object. The host arrives and explains that the other patrons left without paying. The restaurant cannot track them down. You, however, are here. You, therefore, shall pay—for everyone.”
Many other companies sold lead paint, he wrote. Builders and painters used it. And homeowners failed to keep up buildings that are now hazardous.
“Three companies have been ordered to pay hundreds of millions of dollars to find and abate every lead-paint hazard in every home built in 10 California jurisdictions before 1951,” Barthold wrote. “The many other companies responsible for the presence of lead paint in these homes are off the hook. So too are the many landlords and homeowners who let their lead paint become a hazard. The burden of fixing a widespread problem—a problem with many antecedents—has been cast on just a few shoulders.”
Another amicus brief was filed by five states: Indiana, Louisiana, Texas, Utah and Wyoming. That brief, filed on Thursday, seeks to “police the boundaries of public nuisance lawsuits.”
“Cases such as this that enable courts to impose liability arbitrarily with no proof that the defendants caused any harm or can abate it in any recognizable way denigrate the appropriate power of attorneys general to abate legitimate public nuisances and threaten to undermine the Anglo-American tradition of justice,” wrote Indiana Attorney General Curtis Hill. “This theory of liability goes far beyond any traditional understanding of public nuisance law.”
The amicus briefs, the first in the case, come as three companies filed dual petitions last month for Supreme Court review of a judgment by Santa Clara Superior Court Judge James Kleinberg. Amicus briefs are due on Friday.
The plaintiffs, a group of 10 cities and counties in California, were due to file their response on Friday. But the Supreme Court granted a request for a 30-day extension “in light of the length and complexity of the issues” and “long-planned vacations,” according to an Aug. 3 letter by plaintiffs lawyer Michael Rubin of Altshuler Berzon in San Francisco.
Lawyers for the paint companies—prominent appellate attorney Paul Clement of Kirkland & Ellis for Conagra and NL Industries, and Leon DeJulius of Jones Day for Sherwin-Williams—did not respond to requests for comment.
Santa Clara County brought the case in 2000. Initially imposing $1.15 billion in abatement costs, the judgment found the three companies liable for endangering the state’s residents through exposure to their products, which they promoted as safe as far back as 70 years ago. On Nov. 14, 2017, the Sixth District Court of Appeal affirmed the judgment but limited the abatement costs to homes built prior to 1951.
The defendants petitioned the California Supreme Court to overrule the decision, but the state’s high court declined in a Feb. 14 split decision. Sherwin-Williams and Conagra also backed a ballot initiative for this fall—a political move that two California counties tried to stop with a petition for writ of mandate before the California Supreme Court. The companies later dropped the proposal, which would have asked taxpayers for more than $2 billion, after striking a deal with California’s legislators.
“It is tempting to dismiss this extreme version of ‘public nuisance’ as an extreme outlier, but if this court does not intervene, this outlying doctrine will become the weapon of choice in the tort wars,” Clement wrote in a July 16 petition filed by Conagra and NL Industries. “In short, the decision below poses an enormous risk to everyone who has ever done business in California, as it opens the door to potentially unbounded suits targeting manufacturers of products sold decades ago in situations where traditional common-law and constitutional protections should prevent recovery.”
Already, there are “copycat cases” brought in California over climate change, the opioid crisis and water contamination, he wrote.
The lead paint judgment stands alone, however. Other government cases in New Jersey, Missouri, Illinois, Ohio and Wisconsin…
Authored by Glen McStanly