No surprise, there is a comprehensive lobbying effort to persuade the U.S. Supreme Court (SCOTUS) to review the bench-trial verdict in "People of California v. Arco."
For example, the National Association of Manufacturers filed an amicus brief.
In that litigation, former lead paint manufacturers/marketers, such as Sherwin-Williams, were convicted of creating a public nuisance. Jones Day represented and is still representing Sherwin-Williams.
The CA appeals court upheld the conviction but reduced the bill for fixing the problem.
The CA Supreme Court refused to review it.
Recently, a complication developed when The Wall Street Journal outed that Sherwin-Williams promoted lead paint in advertising early in the 20th century, even though an internal memo acknowledged the hazard of lead in paint. Here is an analysis of the implications.
Will that, in itself, deter SCOTUS to not review the conviction?
Interestingly, insiders at Sherwin-Williams have been selling stock. Here is the coverage from SimplyWallST.
Corporations are on the money to fear the dynamics of public nuisance law, not only in CA but throughout the U.S. Already it is being applied to the energy generated by utilities and the marketing of opioids.
Just in the category of lead paint, Sherwin-Williams could face "copy-cat" lawsuits in the rest of CA and in other states which still have housing stock constructed before lead paint had been prohibited by the federal government for residential use at the end of the 1970s.
However, that represents small potatoes.
Just about any product, service, or policy could be targeted as a public nuisance. It is increasingly thinkable that the legal world could experience "another tobacco" or "another asbestos" litigation phenomenon. Yes, the consequences could include bankruptcy for some players, ranging from Sherwin-Williams to BigPharma.
On the other hand, public nuisance is a tool which can address through litigation many problems in business and society. It can return the U.S. to the heady legal era of civil rights and then consumer rights (about the latter, remember Ralph Nader).
One problem is, of course, ageism in employment. That covers recruiting, hiring, promotions, and terminations. With so many baby boomers and older members of Generation X unable to afford to retire, this has become the issue of America. Unless it is solved there could be surging financial insolvency, mental illness, and even suicides. About the latter, there is bouncing around the concept of "rational suicide" among the aging.
There have been class action lawsuits alleging age discrimination such as the recent one against IBM, which terminated more than 20,000 employees over-40. That had been filed by Shannon Liss-Riordan. Here are the details from Bloomberg.
The next major lawsuit contending age bias might be configured as an argument that such practices are a public nuisance. What will be sought are both injunctive relief and damages.
Ageism is a diversity issue. Here is how organizations can rebrand as age-neutral.
Meanwhile, all organizations - private sector, non-profit, government - should be conducting reviews if they could be fingered for creating a public nuisance.
Full Disclosure: I blogged the Rhode Island class action lead paint public nuisance litigation (11/1/05-2/22/06).
Ghostwriting about legal topics, public policy, and the business of law. Complimentary consultation, negotiable fees. Please contact firstname.lastname@example.org.