Following news of a $67 million settlement over lead exposure in New Orleans public housing, various residents feel unfairly left out. Lawyers in charge explain that the case covers only a set class of plaintiffs: to qualify for funds, claimants must (quoting the broadcast account) have lived in New Orleans public housing before Feb. 2001, have been born before late 1987, and be able to show medical records indicating lead poisoning before the age of six. [WDSU; auto-plays video including starter ad with no halt button]
Unfortunately, the televised report makes it very hard to evaluate the strength of the protesters’ complaints, since it does not sort out such questions as: are they saying that their personal situations do qualify for compensation under the settlement’s terms, but that they missed out by not being notified in time? Or are they claiming instead that the settlement should have been negotiated to compensate a more broadly defined class, such as persons whose claims are more recent? If the latter, as one passage in the report suggests, their right to seek compensation by way of a separate suit may not actually have been extinguished. Some related minutes here.
The Bloomberg View columnist discusses the new ruling by a California state judge that companies that once made lead paint, and their successors, owe a billion dollars plus to California counties and cities over marketing of lead paint as long ago as the 1920s and earlier. I’m quoted:
As Walter Olson of the Cato Institute noted to me in an e-mail, “Many of the key business decisions being sued over took place closer to Abraham Lincoln’s time than to our own, and if the companies had gone to twenty leading lawyers of the day and asked, `could this ever lead to nuisance liability under such-and-such facts’ would have been told `of course not.'” Can you really sue a company for doing something that was well within the law? Or, as in one case, a company that bought a company that did something that was well within the law? As Olson points out, “when ConAgra bought Beatrice Foods, most business observers never even realized there was the tiny sliver of a paint company in there among the household food brands, but that one little sliver of successor liability could far exceed the then-value of all the rest.”
More from @Popehat on Twitter: “My wrongful death suit against Mongolia for Genghis Khan’s crimes against my ancestors moves forward!”
With a widely watched case filed by California local governments reaching trial, the plaintiffs’ claims are in the news. “Even with quotes cherry-picked to make paint manufacturers sound awful, however, [Mother Jones's] case seems weak.” The columnist quotes my book The Rule of Lawyers on the enormous cumulative changes in the American liability regime, which have made it thinkable (at least to some governments and lawyers) to impose retroactive liability today for business decisions in the 1920s that were clearly lawful at the time. [Bloomberg; more on the history of lead paint use from the defense side).
Was she unaware a house of that vintage might have lead paint, then? “A woman who bought a 110-year-old home from Kalamazoo for $3,200 has agreed to a $115,000 settlement with the city after she said officials failed to disclose the possibility it contained lead-based paint.” Brandi Crawford bought the house last year and this March filed a claim saying “city officials didn’t provide her with an Environmental Protection Agency-approved form warning her of the potential of lead-based paint in the home. Crawford said her child had elevated lead levels.” [AP/Detroit News]
By a mostly partisan vote of 50 to 44, the U.S. Senate confirmed Rhode Island plaintiff’s lawyer and political kingmaker Jack McConnell to a federal district judgeship. McConnell made his Motley Rice law firm, based in South Carolina, into Rhode Island’s biggest political donor during the same period that state officials were hiring him to run, on contingency fee, what it was hoped would be a hugely lucrative suit against former makers of lead paint. The Motley firm, with associated law firms, is credited with having made billions from tobacco and asbestos litigation and has recycled large sums into the campaign coffers of state attorneys general and other friendly politicians. [Daily Caller, Plains Daily (North Dakota contributions), Politico, ShopFloor] Earlier here, here, here, etc.
Ted at Point of Law has a post mortem on a decision that’s pretty bad, but not as bad as it might have been. More: Legal Ethics Forum, John Sullivan/Civil Justice Association of California, Wood/ShopFloor. Thanks, by the way, to CJAC for citing my writing in their amicus brief (PDF, see p. 10).
The Environmental Protection Agency — currently rolling out new regulations expected to substantially boost the cost of home renovation projects and drive many smaller, less formal repair providers from the market, all in the name of lead reduction — turns out to have lead exposures at its own headquarters exceeding the relevant federal standards in one case by 92,500 percent [Daily Caller] Can it fine itself?