As glee filled the land after the Rhode Island victory in that lead paint public nuisance class action lawsuit, those lawyers, like a Greek Chorus, were warning: "Wait until California." Here is the ruling from the RI Supreme Court which tossed that litigation Download Statev.LeadIndustriesAssoc.,Inc.
That Greek Chorus was on the money. Defendants Sherwin-Williams, NL Industries, and ConAgra lost in the bench trial presided over by Judge James P. Kleinberg.
Later this year, an appeals court in CA will hear the lawyers for the 3 argue why they shouldn't have to collectively pony up the $1.2 billion in abatement.
But, come on, the money is not the issue. That's peanuts to most large companies.
The high stakes involved in the appeal is that this verdict could be the tipping point in creating myriad other public nuisance lawsuits about lead paint and other products/services both in CA and the rest of the nation. CA, as is well-known, is an early adopter in so many trends. Those include emerging patterns in litigation, regulation, and legislation.
In Forbes, supporter of the defendants, Daniel Fisher explains why so much is riding on what plays out in that appeals court. He, too, is on the money.
"Kleinberg's reasoning, if upheld, could lead to any number of similarly structured suits ... For example, former supermodel Cindy Crawford is among the parents clamoring for the caulk in school windows to be declared 'public nuisance' ... [In another Santa Clara County lawsuit] the county accuses Purdue Pharma and four other drug manufacturers of abetting heroin addiction (a public nuisance) because of how they marketed opiate painkillers."
If their defense lawyers are not successful, Sherwin-Williams, NL Industries, and ConAgra could find themselves targets for more lead paint lawsuits both in CA and throughout the nation. Also, the concept of public nuisance could be the platform for the analogue of asbestos and tobacco kinds of class action and individual litigation.
But points of law also intersect with public policy. And public policy is being shaped minute by minute in the court of public opinion. Are the public relations consultants pitching in to assist Sherwin-Williams, NL Industries, and ConAgra up to this massive challenge? Can they position and package the most compelling arguments for not allowing public nuisance litigation to catch fire?
Also, do they understand the key role social media is playing in shaping public opinion? Social media is about being social.
Yet, so many of the defendants' public statements were directed at establishment media in all the lead paint litigation. And most seemed stuck in points of law. Where was the human face? Duh.
Plaintiff lawyers know the kinds of game plans which operate well both in the courts of law and the courts of public opinion. Those firms range from Motley Rice to Marler Clark. Perhaps prior to the appeals hearing both the defendants' legal counsel and its public relations front lines should study the strategies and tactics of the plaintiff bar.
Could the defendants go bankrupt? Of course.