Attorneys representing Sherwin-Williams are asking courts in two Pennsylvania counties, Lehigh and Montgomery, to prohibit private lawyers from working on contingency fees in lead paint lawsuits brought by government officials that could result in billions of dollars in costs for the paint industry.
The lawsuits allege that the companies violated Pennsylvania’s public nuisance law, even though they stopped marketing and selling lead paint for residential use before it was banned in 1978. They follow failed attempts at similar cases in places like Rhode Island and Ohio and a success in California. In January, Sherwin-Williams challenged the contingency fee agreements in both cases.
Lawyer for Sherwin Williams, Tony Dias, leader of Jones Day’s State Attorney General Enforcement, Investigations and Litigation practice and partner-in-charge of its Miami office, said that he doesn't object to government use of contingency fee lawyers across the board, but does in instances involving public interest litigation.
The use of private lawyers with a financial incentive in the outcome in these cases, he says, violates the company’s due process rights and can distort public policy, much like giving prosecutors a bonus for every criminal conviction.
“The purpose of public nuisance claims brought by government is to vindicate a public right,” Dias said. “But these are cases where the lawyers pitched the lawsuits to the counties in return for contingency fees. You can’t have the promise of a pot of money for contingency fee lawyers driving public policy.”
He added that the use of attorneys motivated by the prospect of big financial rewards violates due process by “creating at least the appearance of a conflict of interest that is improper in a government enforcement action exercising the government’s power to police.”
The plaintiffs’ lawyer in the cases, David Senoff of the First Law Strategies Group, LLC, is in part relying on a 1995 Pennsylvania law, the Lead Certification Act, that recognized lead poisoning as a public health hazard, to pursue his case under the public nuisance claim.
"(T)he General Assembly explicitly found, and made it the law of this Commonwealth, that the presence of lead paint constituted a public nuisance,” Senoff wrote in a response to preliminary objections filed by Sherwin-Williams.
The cases are in the Lehigh and Montgomery courts of common pleas.
Additional Pennsylvania counties were approached and considered using contingency fee lawyers to file actions against former lead paint and pigment manufacturers. Last summer, Sherwin-Williams sued to obtain a declaration of its due process and First Amendment rights arising from Delaware County’s planned public nuisance action.
The U.S. Court of Appeals for the Third Circuit affirmed the dismissal of Sherwin-Williams’ complaint, but Sherwin-Williams has petitioned the U.S. Supreme Court in a writ of certiorari to reverse the lower court. York and Erie counties considered filing and ultimately decided against it, according to the writ.
Lawsuits brought by contingency fee lawyers in other states over the past 20 years, including Rhode Island, New Jersey, Ohio, Missouri and Illinois, have failed.
In 2018 Sherwin-Williams, ConAgra Grocery Products Co. and NL Industries resolved a case brought under a unique California public nuisance statute by ten of California’ largest counties and cities for $305 million. The California Supreme Court permitted government use of contingency fee lawyers in that case, but only if the in-house government lawyers controlled all significant decisions in the litigation and defendants had a direct line of communication with the in-house government lawyers.
In its writ, Sherwin-Williams wrote that federal and state governments do not consider intact, well-maintained lead-based paints to present a health risk requiring abatement.
Deteriorated, decades-old lead paint can become a hazard when “private property owners, the County, and other public entities have failed to maintain their properties and the lead-containing paint within them,” the writ said.
Dias said that the counties seek to declare the lead paint in every private residence to be a public nuisance. Such a declaration would make every landlord with lead paint potentially subject to criminal and civil liability, as well as affect their ability to sell, rent, or insure their properties.
“Lawsuits have implications,” he said.
The counties have excluded their own properties from their lawsuits.