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!”
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).
So argues Harvard’s Laurence Tribe. [Washington Legal Foundation, PDF (with co-authors Joshua Branson and Tristan Duncan), via Adler]
Tim Sandefur asks this only half-facetiously as he reviews mass torts. Of course, as a must-read comment letter to FASB (via the indispensable Beck/Herrmann) submitted by six pharmaceutical companies notes, “A mass tort occurs when the plaintiffs’ bar decides to invest in it.”
Attorneys Thomas R. Bender, Richard O. Faulk, and John S. Gray analyze the Rhode Island Supreme Court ruling in the lead paint case, detailing the history of the case and note the implications for other public-nuisance suits in the global warming and mortgage foreclosure fields.
Those interested in the issue of the growing abuse of “public nuisance” as a cause of action can do little better than to read the law review article by Gardere Wynne Sewell LLP partners Richard O. Faulk and John S. Gray at 2007 Mich. St. L. Rev. 941, cited by the Rhode Island Supreme Court four times in its unanimous opinion rejecting public nuisance theory as a means to sue lead paint manufacturers (via Androvett).
So AP reports. More details as they become available.
9:43: AP/Boston Globe reports a dramatic rejection of public-nuisance theory, holding the case should’ve been dismissed years ago. Good news that. The Rhode Island Supreme Court decision was unanimous.
5:00: Here is the opinion itself. James Beck has the most comprehensive analysis of the opinion so far; Walter gives thorough background at Point of Law as well as a roundup of other links. The defendants and NAM have released statements; Motley Rice claims they were doing it for the children, which doesn’t explain their self-serving settlement with DuPont or why they asked for a highly inefficient remediation remedy that would have maximized their attorneys’ fees.
Also: Jonathan Turley (who I just learned has a year-old blog with over a thousand posts), who, to his credit, has opposed such lawsuits; OpenMarket; Jane Genova; Publius. Attorney General Patrick Lynch is unhappy about the legal setback to his
campaign contributors constituents.
Existing abatement efforts already required of landlords under Rhode Island law mean that lead paint exposure is at an all-time low in the state–evidence that was excluded at trial.
And more: ShopFloor; NFIB.
According to professor Tony Sebok, both sides botched the May 15 oral argument (available on webcast) over the multi-billion dollar lead-paint “public nuisance” judgment, but the plaintiffs botched it worse. Sebok predicts “that the Rhode Island Supreme Court will understand what is at stake in this case, and do the right thing. It will act like a responsible common law court and interpret the doctrine of public nuisance in a principled way—which in this case means drawing the line between tort and public nuisance, and drawing that line in favor of the defendants.” A decision is expected by July 4.
(Disclosure: I purchased stock in Sherwin-Williams and NL Industries shortly after the oral argument.)