The World Responds - Sherwin-Williams' Pre-emptive Strike

The trade pubs have been busy bees covering and opining about Sherwin-Williams' suit in U.S. District Court in Columbus, Ohio (OH). 

To recap: Essentially that lawsuit covers 3 things. It seeks to prohibit the city of Columbus from suing the company about the lead paint left over in buildings before it was banned in 1978. It is also seeking action against Ohio cities such as Toledo and East Cleveland which have already sued. And, it's also listing as "John Doe" defendants any other OH cities which may sue in the future. 

Of course, given this aggressive stand, Sherwin-Williams' stock rose yesterday.  The last time I checked it was up 1.80.  A shareholder in New York said he regretted heading out on vacation because he'd relish monitoring the what-next, both in the stock price and in reactions from all the players, ranging from plaintiff firms like Motley Rice to those macro legal experts from think tanks such as the American Enterprise Institute. 

Employees at some of the companies which have been the usual suspects in lead-paint litigation are mostly being blocked from monitoring this ongoing story on the web.  The powers-that-be have begun to track time spent on those parts of the Internet which are behind the corporations' firewalls.  You bet, my blog is suffering from that.  The odds are those weary employees won't check this blog on their computers at home.

THE PLAIN DEALER, based in Cleveland, finally came out today with the story.  Yesterday, THE COLUMBUS DISPATCH had scooped it. In his article titled "Sherwin-Williams sues three cities, THE PLAIN DEALER reporter Peter Krause starts out with, "Sherwin-Williams Co. has decided the best defense is an offense."  Sherwin-Williams claims that those it's suing, continues Krause, "have conspired with money-hungry lawyers bent on fleecing the Cleveland company."  The goal of this complaint filed in federal court is to put a stop to all this.

In Washington D.C., those corporate attorneys not preoccupied with the fall of the current Administration generally cheer this development.  One lawyer agreed to comment off-the-record.

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A Washington D.C. Attorney observes:

Justice Louis Brandeis famously opined that "Sunshine is the greatest disinfectant."  Before him, the Senior Justice Harlan, in his courageous dissent in 1896 Plessy v. Ferguson (separate but equal) case, lamented, "this decision promises less sunshine and more darkness." 

That about sums up what Sherwin-Williams is attempting to circumvent.  And that is, cities which are allowed to pass so-called emergency measures, essentially under the cover of darkness and coached by out-of-state attorneys eager to usurp the power of government and earn huge fees. 

Sherwin-Williams, it seems, is turning to the federal court because the federal courts have an obligation to cast a bit of sunshine on all this.  What's at stake in these lead-paint lawsuits being filed by cities and states? Nothing less than the First Amendment rights to free speech, association and to petition the government.  Also throw in issues like fundamental fairness and due process.  During the Rhode Island lead paint trial the state used the defendants' membership in the Lead Industries Association (LIA) to impute a conspiracy among them.  Incidentally, the judge in the trial threw out that charge. Since when are business people not allowed to form associations to further their common interests?

Think about it.  Don't the accusations of plaintiff law firm Motley Rice which is a major player in many of these state and city lead-paint suits echo those of the late Senator Joseph McCarthy? There is the same inflammatory labeling, the same circular reasoning, the same hysteria, the same damage to the social fabric and the credibility of all our government systems.

On the contrary, the pattern of behavior of the historical lead-pigment manufactures more nearly fits the observations of Alexis de Tocqueville.  In his 1831 treatise "Democracy in America," de Toqueville noted that Americans are industrious and tend to be joiners in the common cause (read that building their businesses and therefore the economy of America).  No surprise then those entrepreneurs in the lead pigment industry would see an opportunity in joining the LIA.  Through the LIA they could join forces for lobbying and pool resources for research that was in their common interest.  Today, Washington D.C. is full of such "joiners in the common cause." 

So, what is my opinion of the federal court entering this patch of darkness created by those out-of-state plaintiff law firms? It seems that's what it will take to return good government to the cities and states of America. Like some of the best legal thinkers in America such as Justices Brandeis and Harlan, the legal strategists at Sherwin-Williams are showing wisdom and courage.

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Side Note:  Readers are welcome to submit their opinions, which will be published, on or off the record.