Tort Game-Changer: Sherwin-Williams Becomes Plaintiff & In Federal Court

The lion's share of legal experts - e.g. Manhattan Institute's Walter Olson - predict tort reform if it does happen will happen slowly.  Sherwin-Williams may prove them wrong. Sherwin-Williams could have just changed the tort game dramatically and abruptly.  Last week this paint company filed a lawsuit in U.S. District Court against Columbus, Ohio (OH) for even thinking about suing Sherwin-Williams for its former association with lead paint. 

Given the growing number of cities which have filed lawsuits or are considering filing them regarding lead paint, this is a brilliant move by the legal minds advising Sherwin-Williams. For instance, last September 29th in THE PLAIN DEALER , Peter Krouse reported that just in OH alone cities such as Toledo, East Cleveland and Akron were contemplating filing lawsuits.  And today, in THE COLUMBUS DISPATCH, Jodi Andes and Mark Ferenchik reported that, yes, Toledo and East Cleveland did go forward with their suits.  The 2 also covered in detail this pre-emptive strike by Sherwin-Williams.

Why this is a stroke of genius so well timed is that Sherwin-Williams as the plaintiff makes these cities the defendants.  The cities can go bankrupt coming up with the legal fees needed to defend themselves against Sherwin-Williams.

This is a complete reversal of the usual lead-paint legal scenario in which the plaintiff is a city or a state represented on a contingency basis by a private plaintiff law firm such as Motley Rice.  In the now-famous Rhode Island lawsuit against 3 paint companies (the 4th ARCO was acquitted) Motley Rice partnered with the state Attorney General for a contingency fee of more than 16 percent.

In its lawsuit, Sherwin-Williams, stated Andes and Ferenchik, argues that private law firms solicit cities and states to sue the companies once associated with lead paint in order to make money.  In the case of Columbus, OH, if it were to sue, the contingency fee could be one-third of any settlement or court decision. 

The goal of Sherwin-Williams' lawsuit is to stop this practice on the part of private law firms.  Sherwin-Williams contends that had landlords maintained their property, as laws in many jurisdictions mandate, there would be no current lead paint problem.  In short, this whole enchilada is a landlord problem and a city and state enforcement problem.

Sherwin-Williams' suit has 3 main parts.  It is suing Columbus because the nature of its possible suit against Sherwin-Williams and other former lead-paint companies would violate the company's First Amendment rights, including joining trade associations and petitioning the government (lobbying).  The second part targets those cities such as Toledo and East Cleveland which have recently filed suits.  The third part targets as "John Does" any other cities which might file suits at a later time.

Andes and Ferenchik provided a little historical background on Sherwin-Williams' experience with this kind of strategy.  They stated that in 2001 the company did a similar thing in Mississippi after a school district sued it.  Long story short, the school district dropped its complaint.

Sherwin-Williams is delivering a clear message: Don't play with us.  Other companies that have also been the "usual suspects" in suits against former lead paint businesses might follow Sherwin-Williams' example.