WASHINGTON (Legal Newsline) - Attorneys for Sherwin-Williams have petitioned the U.S. Supreme Court to reverse an appeals court ruling from last August that the paint manufacturer had no standing when it asked the court to prohibit Delaware County, Pa., from using outside counsel in a pending lawsuit over lead paint.
On behalf of the county, contingency fee lawyers are considering filing a public nuisance lawsuit against the company over the paint, even though the company stopped making it before a 1978 federal ban. Lehigh and Montgomery counties have already filed their cases, and the company is trying to disqualify their private lawyers in them.
In its January petition for certiorari before SCOTUS, Anderson Bailey and other attorneys with Jones Day argue that the Sherwin-Williams case before the U.S. Court of Appeals for the Third Circuit had merit even though a lawsuit against the company had yet to be filed. The threat of the public nuisance lawsuit through the hiring of a private lawyer had already caused injury, the writ said.
“The lawsuit, which will premise liability on (Sherwin-Williams') First Amendment protected activity and other decades-old lawful conduct, already has caused injury, including a chill of Sherwin-Williams’ First Amendment activity [advertising and marketing by the company].”
“The County’s imminent suit,” the petition continued, “represents a growing trend where governments impermissibly delegate their police power to private contingency-fee counsel, whose financial interest in the outcome of the government’s action may influence or, at least, create the appearance of bias in government decision-making.”
In Pennsylvania, Lehigh and Montgomery counties contracted with contingency fee lawyers to file public nuisance suits against Sherwin-Williams, and other paint and pigment manufacturers. York and Erie counties considered filing, the petition said, but later decided against it.
In the Delaware County case, Jones Day argues that the Third Circuit ruling that Sherwin-Williams had no standing hinged on the court’s determination that the County would control the litigation.
“But whether the County would actually maintain control and whether, in any event, such control alleviates due process concerns are issues that go to the merits of the due process right at issue, not whether Sherwin-Williams has standing to have a federal court adjudicate the merits of the claim,” the petition states.
The attorneys also argue that SCOTUS had established precedent that a government’s threatened action can be challenged. And the petition said that the Third Circuit’s ruling has implications far beyond this case.
“The Third Circuit’s decision, if allowed to stand, would leave individuals and organizations with no affirmative recourse from a genuine threat of litigation by government actors seeking to suppress protected speech and association,” the writ stated.
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.