PHILADELPHIA (Legal Newsline) – Sherwin-Williams’ attempt to cut off lawsuits brought by an alliance of private lawyers and Pennsylvania counties recently failed in the U.S. Court of Appeals for the Third Circuit.
Facing filed and impending public nuisance over lead paint – a product it hasn’t made in more than 40 years – the company took to federal court in 2018 to ask for a ruling that would have prevented counties like Delaware from filing their lawsuits.
Lead paint litigation failed in most places but paid off in California for the private lawyers working on contingency fees while they represented government officials.
But Pennsylvania’s Eastern District and the Third Circuit found Sherwin-Williams didn’t have standing to challenge lawsuits that hadn’t been filed yet.
“In short, Sherwin-Williams’ claims are not ripe largely for the same reasons they fail to satisfy the injury-in-fact requirement – they require speculation about whether (Delaware) County will sue and what claims it would raise,” says the decision, written by Judge Thomas Hardiman.
Lehigh and Montgomery counties filed their lead paint lawsuits through lawyers in Anapol Weiss’ Philadelphia office. The firm is wooing other counties like Delaware, York and Erie.
t issue is the theory of “public nuisance,” which was rejected in similar cases in several states, like Ohio and Rhode Island, but was received favorably by California courts in a lawsuit that lasted 18 years.
There, ConAgra, NL Industries and Sherwin-Williams were hit with a bill of approximately $400 million, which was used to pay for remediation work in the 10 counties and cities, led by Santa Clara County, that accused the companies of responsibility for a public nuisance.
A trial court in 2013 found the three companies to be responsible for the lead-based paint in houses built before 1981. An appeals court largely upheld that decision, though narrowing it to those constructed before 1951. The California Supreme Court refused to review, leading to the appeal to the U.S. Supreme Court.
In 2018, the U.S. Supreme Court decided not to take up the case. Montgomery County’s case had been filed 11 days prior. Lehigh County’s contract with Anapol Weiss was signed Aug. 28 and stipulates a contingency fee of 33.3%.
Montgomery County sued Atlantic Richfield, ConAgra, DuPont, NL Industries, PPG Industries and Sherwin-Williams.
Sherwin-Williams says county officials have been misled by Anapol Weis into stirring up litigation that infringes on the company’s First Amendment rights to promote its products.
The lawyers also want to apply new legal standards that did not exist in the era of lead paint, the company says.
And, as it did in the California litigation, Sherwin-Williams is challenging the authority of government officials to leave the issue of justice to private lawyers working for their own financial gain on contingency fees.
“The substantial financial burden currently being imposed on Sherwin-Williams by the imminent threat of these multiple lawsuits unlawfully brought by self-interested trial lawyers further justifies immediate determination and protection of Sherwin-Williams’ federal constitutional rights,” the company’s lawsuit says.
But the Third Circuit wrote that, even though Delaware County hired outside counsel, it hasn’t yet filed suit. There’s still a chance that it doesn’t sue, the court feels.
“It might advance the same arguments as other counties, but it might not,” Judge Hardiman wrote. “The uncertainty surrounding these fundamental questions renders these claims unfit for judicial resolution.”
Sherwin-Williams still has a little time to petition for a rehearing of its appeal before the full Third Circuit. The recent decision came from a three-judge panel.