Law And More

Radical Transparency - Pitching States, Cities on Public Nuisance Suits Against Former Lead Paint Inc.

The worlds of business and perception management have morphed from the post-Enron embrace of transparency to the current passion of radical transparency.  The April cover of the influential WIRED Magazine has a partially naked woman holding a sign, Norma Rae-fashion, "Get Naked and ... Rule the World." Inside the cover is a three-part series on "Why Exposing Yourself Is The Future of Business."

Of course, it's an art - and perception managers like Cambridge, MA-based eSapience get paid up to a $1000 an hour to be illusionists - to appear naked.  With all our human flaws, professional, personal and physical, few individuals, organizations or nations can really go naked.  But, we can sure try to appear so.  Barack Obama, John Edwards and Al Gore are doing a excellent job of presenting themselves as radically transparent.  Unfortunately, Hillary is totally ham-handed in the tricky field of illusion. 

The question I ask is this:  What if the populist brand of plaintiff attorneys was also pushed to be radically transparent?  What if the Motley Rices were mandated by some legal version of Sarbanes-Oxley to be radically transparent in why they were pitching states and cities on embarking on public nuisance lawsuits against, say for example, the former lead paint manufacturers?

How would radical transparency have to get done in the situation of the public nuisance litigation or the threats of litigation surrounding the former lead paint companies for too long?

Here's a sneak preview of how populist plaintiff law firms would have to pitch possible public nuisance litigation:

• We're selling you an economic long shot.  So far, despite all this going on since the late 1990s, former Lead Paint Inc. hasn't paid a penny in settlement or verdict. The entity DuPont which agreed to an agreement to opt out of the Rhode Island lead paint trial II isn't legally required to pay a penny either.  The agreement was just that, an agreement, not a legal contract.
• Your location is going to get a horrific reputation among economic developers and businesses for banana-republic type tort systems.  Mississippi had to clean up its "hellhole judicial" follies for Toyota to build a facility in that state.  The two states - RI and Ohio - with the current highest profiles in lead paint litigation are economic laggards.  OH, in fact, is almost as bad off as Michigan.
• You will waste a lot of tax-payer money battling against the layers and layers of legal machinations which go with this crazy tort situation.  In OH the General Assembly will spend at least $150,000 to oppose Governor Ted Strickland's veto of Substitute Senate Bill 117.  That bill, as a law, would prohibit the expansion of the state's public nuisance law to cases which should be treated, claim myriad legal authorities, as product liability ones.
• You will be distracted.  Running a public nuisance lawsuit, from complaint stage to the actual trial, sucks up resources, including the attention of your best and brightest.

Readers are invited to submit other radical transparency scenarios in law.  Please contact Mgenova981@aol.com.

Cleveland, OH Considering Joining Lead Paint Lawsuit Conga Line

Cleveland, Ohio City Council passed a non-binding resolution to urge its mayor Frank Jackson to at least consider joining the other cities in OH in filing a lawsuit against former lead paint makers Sherwin-Williams et al. Sherwin-Williams is headquartered in Cleveland.

But this push and the filed or non-filed lawsuits by the other cities in OH about the public nuisance caused by the former lead paint producers and sellers may be just push and no play.  Lots of legal issues have to be first decided at the state and maybe federal level to determine if this sort of lawsuit would be permitted to move forward in OH.

Tainted Pet Food Class-Action Suit - RI May Finally Have Authentic Product Liability Case

During those four months of the Rhode Island paint trial I had the unique opportunity to pick the best minds, defendant and plaintiff, on tort reform.  The best of the best agreed: It took a long time - since the 1970s - to get into this tort mess and it will probably take that long to exit it.  At the time I didn't agree.  I wanted the excess of class-action suits fixed right then.  When I insisted on that, prudent lawyers shook their heads.  They attempted to explain to me why the integrity of a nation's tort situation must be approached with considerable caution.

Now, I get it.  On March 28th, THE PROVIDENCE JOURNAL reporter Linda Borg chronicled how Johnston, RI resident Carol Brown has filed a class action suit against pet food manufacturers Menu Foods.  Her attorney Peter N. Wasylyk filed it in U.S. District Court. 

Allegedly, contaminated dog food manufactured by Menu Foods and purchased at Petco had killed her Shih Tzu dog Bro Hammer on December 5th.  Since then, says Borg, there have been a number of deaths and kidney diseases among dogs and cats which consumed brands which sold the Menu Foods. 

The universe was smiling on me during this alleged contaminated food incident.  My four cats weren't affected. 

But when I was live-blogging the lead paint trial from the November 1, 2005 through February 22, 2006, my aging dog Molly Mittens stayed at a low-cost motel with me when I didn't commute back and forth from my home in central Connecticut.  You bet when I was in RI, I shopped at Petco for her food and I went there often so Molly Mittens had some play time with the other dogs. She also loved to press her nose on the ferret glass cages and menace the birds. 

Had Molly Mittens eaten that allegedly contaminated food, she would have died.  She was 12.  In fact that following June 30th she did die of congestive heart failure.  And had Molly Mittens' life been shortened by a minute by contaminated pet food, I would have initiated that class-action suit.  It's fortunate our American legal system allows this kind of recourse in what could be authentic product liability cases.

My heart goes out to Carol Brown on the loss of her dog Bro Hammer.  And if Attorney Wasylyk finds it useful to have an amicus brief from me on the toll pet grief takes on human being I will labor over producing one.

DuPont's "Agreement" with RI - Fraught with Ambiguity

Numbers have become elusive entities in almost everything related to the Rhode Island lead paint saga, including how much DuPont might have to cough up as part of its "agreement" with Attorney General Patrick Lynch. 

Recently I posted on the supposed doubling of what DuPont will be paying in abatement costs as part of that "agreement."  I was relying on the reporting of ASSOCIATED PRESS WRITER Michelle R. Smith.  Her March 26, 2007 article was titled "Estimates on Lead Paint Clean-Up Soar."

A credible legal source I have been been using for 14 months responds to Smith's contentions:

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Legal expert refutes estimate of DuPont's estimated abatement costs, off-the-record:

I did read that same article by Michelle Smith that you and your readers have.  Afterward I did some digging and think I have tracked down some additional material which seems to change Smith's account somewhat.

In fact, those on my network received the actual report from the Rhode Island Attorney General's advisory committee on lead and they will be analyzing it - carefully.  From what we know about what's written and not written officially in Rhode Island, we have learned that all such reports have to be read with a practiced eye for nuance and for what's not being said but seems to have been stated.

In the end, the actual determination of what will be spent rests with the Children's Health Forum  in Washington D.C.  The agreement from June 2005 with DuPont was for 600 homes to be remediated and remediation costs can vary for any of several reasons, not the least being: What level of abatement will be pursued [lead-free vs. lead-safe].

So, while DuPont's eventual costs probably will be greater than $9 million, it's not accurate to say that the final number will be $18.6 million.  The fact is:  Too many variables are as yet undecided.

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Further reader input welcome.  Please contact Mgenova981@aol.com.

RI Childhood Lead Levels - Continue Declining, Says State 3/26/07 Report

On March 26, 2007 the state of Rhode Island released its latest report which brings up to date the statistics showing the continuing decline in the percentage of children with elevated levels of lead in their blood.  The report, which is part of the overall "2007 Rhode Island KIDS COUNT Factbook, states, "Elevated blood levels have been steadily declining in the core cities and in Rhode Island over the past decade."  This, of course, refutes the state's contention during the RI lead paint trial that the attempt to reduce lead poisoning in children in RI had reached a plateau. Data showed that was not true even during the trial (LESS Database) and is not true currently.

Readers can access a deconstruction of this issue by legal expert Richard O. Faulk of Gardere Wynne Sewell LLP.

The Tort Tax - $865 Billion Annually

All yesterday, lead-paint watchers had been flagging me about the opinion-editorial in THE WALL STREET JOURNAL titled "The Tort Tax."  It's penned by Lawrence J. McQuillan and Hovannes Abramyan whose credentials include the book "Jackpot Justice: The True Cost of America's Tort System."  But, I couldn't get to post on it until today because I was at my day job.

Given day jobs, mine isn't the worst.  As a self-employed consultant I don't have to report into an office daily and endure co-workers.  But for us narcissist writers/bloggers, any kind of employment outside our mission to tell it as it is can dampen the spirit and take way too much time.  In addition, yesterday's assignment entailed a schlep deep into New England and when you're driving you're not blogging.  Not a happy day.

But that was that and I don't have to leave my home office again until April 17th.

The tort piece is persuasive in that it estimates that America's tort system "imposes a total cost on the U.S. economy of $865 billion per year."  That boils down to an annual "tort tax," say McQuillan and Abramyan, of about $9,827 for a family of four.  And that's quite a bit more than even tort-reform ranters like myself have quoted or even imagined.

Of course, following this staggering number are the usual arguments about the harm excessive or needless litigation does to the economy - e.g. slows down innovation. And, as any business owner like myself knows, it also causes plenty of sleepless nights wondering if that client or customer will file a lawsuit.

My question:  Are the plaintiff lawyers such as Motley Rice preparing a rebuttal type op-ed to be published soon?  I'd love to deconstruct that.

DuPont's "Sweet Deal" Less Sweet

There have been many criticisms for many reasons of DuPont's agreement with Rhode Island Attorney General Patrick Lynch. 

According to that agreement - which wasn't a binding legal contract - DuPont said that in exchange for being dropped from the 2005-2006 RI lead paint lawsuit it would pony up the money to remove paint from hundreds of RI residences.  At the time the estimate for that was about $9 million.  As ASSOCIATED PRESS' Michelle R. Smith reports, that estimate has soared to $18.6 million.  So, those castigating both DuPont and the Attorney General for allowing that sweet deal can see that it's no longer so sweet.

What could be the most bitter part is that the three defendants who did go to trial and were convicted might never have to pay a penny in abatement costs.  The fourth defendant was acquitted.  The three convicted defendants have requested to appeal their case to the RI Supreme Court.  That might do the trick and get them completely off the hook - especially when the RI Supreme Court takes into account the contingency fee structure between the government office of the Attorney General and private law firm Motley Rice.  If that review doesn't do the trick, there are grounds - including constitutional ones -to advance the case to federal jurisdiction.  Some attorneys opine there is a chance, slim though, that the U.S. Supreme Court might find the case interesting and hear it as a last resort.

Another souring of the whole deal is that DuPont and the RI Attorney General have both received negative publicity about its terms and conditions.  It was not a plus, at least in public perception, for either.

Those four which went to trial might turn out, after this long legal ordeal, to have done the right - and the smart - thing.

Silver Lining in OH 117 Veto - Wall Street Opines

"The veto of Ohio Substitute Senate Bill 117 may inadvertently be the action that sets in motion tort reform."  That's what a financial markets expert told me last night, off-the-record.  "As the OH Supreme Court reviews the situation May 1st, a lot could be brought to light that could set OH on the right road back to justice." 

This expert predicts that if the OH Supreme Court rules that Substitute Senate Bill 117 became law when former Governor Bob Taft didn't veto it, "it will take a toll on the current administration and definitely remove any momentum that the Democrats had."

Reader comment welcome on this Ohio tort reform situation. Please contact me at Mgenova981@aol.com.

Shareholder Responds to Possibility of Lawsuit Against Rhode Island

A Sherwin-Williams shareholder sends in these thoughts about the possibility of a class-action lawsuit against the state of Rhode Island.

"Actually, from what I understand about the law, I don't see a lawsuit happening against the state of Rhode Island.  And maybe that's not the party we want to hold accountable for years of litigation for Sherwin-Williams' allegedly causing a public nuisance.  I point the legal finger, if anywhere, at the plaintiff law firm or firms which are selling this public nuisance "free lunch" to states and cities.  Even if the lawsuit against the plaintiff law firm or firms didn't succeed, a powerful message would be transmitted via the complaint."

Reader comment welcome.  Please contact MGenova981@aol.com

Wall Street Opines on Possible Shareholder Suit Against RI

No post on this blog since the February 22, 2006 verdict has attracted as much attention as the commentary by value investor Todd Sullivan recommending "a shareholder lawsuit against the state of Rhode Island for the financial harm we have suffered as owners." 

Earlier in the day a legal expert opined.  Now we have a Wall Street expert providing a point of view.

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Expert on financial markets comments on possibility of shareholders' lawsuit against the state of Rhode Island:

First of all, lead-paint watchers, here's an observation:  Of late, it has been unusually quiet from the Motley Rice folks.

That said, let's get to the point. I don't see a shareholder suit against the state of Rhode Island as likely. However, damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit.  This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. 

I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue.  From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.

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Reader comment welcome.  Please contact MGenova981@aol.com