On Law360, Peter Hsiao and Andrew C. Stanley of the Morrison & Foerster law firm published a chilling article on possible scenarios for that:
" ... many states have public nuisance laws similar to that in California. Many of those states have also not yet directly addressed the application of public nuisance law to lead paint, or the overlap with a product liability type of action ... As a result, the imprecise nature of public nuisance law in various states suggests that California's decision could have a significant effect as precedent in other courts around the country."
It's in the self-interest of the three defendants - Sherwin-Williams, NL Industries, ConAgra - to promote their points of view on everything from points of law to public policies. Since myriad U.S. industries could be affected, many other companies should consider themselves part of the public affairs loop on this one.
The good news is that there is a proven template to use as a model. That's the one established by Donald Trump and his communications machine.
Trump may or may not implode. He may or may not be elected U.S. president. Those are irrelevant. What counts for those associated with the defendants is that he has demonstrated what is effective in getting and growing attention. As we all know, attention is the currency of the 21st century. Have it and you are welcome most everywhere.
Here are 5 lessons:
Go to the people. If the grassroots buys your pitch, the other constituencies will follow. Those include media, of course. This is a direct approach which is usually considered indirect. LOL.
Explain how Everyman's utility bill and the cost of a new car could increase significantly.
Enlist 3rd-party support. This is the oldest fundamental of communications. Want a raise? Don't ask the boss. Have 3rd-parties sing your praises to the right people. The boss is just one of those.
In New York Magazine, Gabriel Sherman reports that Trump strong-armed support back from Fox News head Roger Ailes through the intervention of third parties post-Thursday GOP debate. Yes, Trump is a good lobbyist. However, third-parties can be more effective.
Bring in trade associations, manufacturers, think tanks and utility/auto employees.
Talk straight. Long before the Trump phenomenon Harry Truman understood the power of people talk versus stylized rhetoric. Corporate leaders Jack Welch and Lee Iacocca became household names by talking from the gut.
Tell all constituencies in plain language the perils associated with public nuisance.
Push back. Making friends and influencing people becomes effortless when it is known those in the loop push back. There are infinite opportunities to do that. Resenting the high taxes in Connecticut, GE indicated it could yank its headquarters from that state.
Why are defendants not being imaginative and aggressive in pushing back?
Leverage theatrics. Do demos at high-profile events such as county fairs how lead paint can be made safe. Tweet everything, including audience questions and comments. Stream for media and create videos to repurpose for website Media Centers, blog posts, digital newsletters, Facebook, and LinkedIn Pulse.
In short, Trump has disrupted communications. Not piggybacking on this can put defendants at a disadvantage in the courts of public opinion and perhaps even law. Presiding over "People v. ARCO," from the get-go, Judge James Kleinberg told the defendants this wasn't Rhode Island law. There some of the current defendants had won the public nuisance lead paint litigation. Yet, so much of the public relations seemed to mirror the strategies and tactics of RI.