State lawmakers are pushing back on three paint manufacturers’ unusual attempt to circumvent a $1.1 billion verdict holding them liable for exposing customers to lead in their products.
Conagra Grocery Products Co., NL Industries Inc. and The Sherwin-Williams Co. are pushing to qualify a November ballot initiative that would eliminate their court-determined liability to remediate lead paint contamination, according to an analysis by the attorney general’s office. Instead, the measure would authorize a $2 billion state bond sale to pay for abatement work.
In pursuit of qualifying that initiative, the paint companies have created a website, notanuisance.com, that claims “millions of California homes” could be “red tagged” because of the Sixth District Court of Appeal’s November 2017 ruling. The site allows visitors to send pre-written emails to legislators, pleading them to overturn the court’s lead-paint ruling.
On Wednesday, eight state lawmakers urged executives of the paint companies to take down the website and its “factually dubious claims.”
“You falsely claim that the court decision ‘red tags’ millions of millions of California homes and labels them a nuisance,” the legislators said in a letter. “The judges specifically rebutted your false assertion that the ‘court’s abatement order has “declared a nuisance” on individual properties without notice to the property owners.’ Your claim has no basis in fact.”
The backers of the initiative say the site’s assertions are valid and that houses and apartments publicly identified for remedial work will lose value.
“I strongly disagree with the tone of the letter and the allegations that these companies have somehow lied or tried to deceive anyone in the state,” said Jones Day partner Antonio “Tony” Dias, a lawyer for Sherwin-Williams.
A three-justice state appellate panel held last year that the paint-makers “must have known from the early 20th century” that interior lead paint posed a serious harm to children. Although ruling for the plaintiffs—10 cities and counties—the justices did send the case back to the trial court to recalculate what was a $1.15 billion judgment against the companies handed down in 2014.
The California Supreme Court in February declined to review the decision. Dias said the defendants are preparing to petition the U.S. Supreme Court to hear the case.
The time it has taken for the case to reach a final determination has allowed the paint companies to pursue their ballot initiative and subsequent campaign, said San Francisco attorney Mary Alexander, who served as co-lead counsel for the plaintiffs.
“It’s unprecedented to have defendants try to undo what the courts have decided and to try to shirk their responsibilities under the law by filing an initiative,” Alexander said in a press call Thursday with Assemblyman David Chiu, D-San Francisco.
Chiu and five other legislative Democrats have introduced bills related to the lead paint ruling. Chiu’s bill, AB 2073, would shield homeowners who participate in abatement programs from being sued by paint manufacturers for comparative fault—a possibility raised by the Sixth District panel in its ruling.
While the paint companies’ initiative campaign is a rare tactic, it’s not unusual for losing parties in lawsuits to take their grievances to other branches of government.
Container manufacturer Crown Cork and Seal has pursued legislation in several states to shield itself from successor mesothelioma claims stemming from its 1963 merger with a company that made asbestos-containing insulation.
The three paint company-defendants in the lead paint case have each loaned $2 million to the campaign committee formed to quality the ballot initiative.