Amicus Curiae Brief — ConAgra Grocery Products Company, et al., Petitioners v. California

Nos. 18-84 and 18-86

IN THE

Supreme Court of the United States

————

CONAGRA GROCERY PRODUCTS, et al.,

Petitioners,

v.

CALIFORNIA,

Respondent.

————

THE SHERWIN-WILLIAMS COMPANY,

Petitioner,

v.

CALIFORNIA,

Respondent.

————

On Petition for Writ of Certiorari to the

California Court of Appeal,

Sixth District

————

AMICUS BRIEF FOR

THE AMERICAN COATINGS ASSOCIATION

IN SUPPORT OF PETITIONERS

————

ERIC G. LASKER

Counsel of Record

TAMARA FISHMAN BARAGO

HOLLINGSWORTH LLP

1350 I Street, NW

Washington, DC 20005-3305

(202) 898-5800

elasker@hollingsworthllp.com

Counsel for Amicus

August 17, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

INTRODUCTION AND

INTEREST OF AMICUS .................................

1

ARGUMENT ........................................................

6

I. BUSINESSES SHOULD NOT FACE

THE RISK OF CIVIL LIABILITY FOR

EXERCISE OF THEIR FIRST AMENDMENT RIGHTS TO ASSOCIATION .......

7

II. THE RULING BELOW THREATENS

TO CHILL ASSOCIATIONAL RIGHTS

ACROSS MANY INDUSTRIES ...............

15

CONCLUSION ....................................................

16

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ...................................

8, 9

Central Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n,

447 U.S. 557 (1980) ................................... 8, 11

Citizens Against Rent Control/Coal.

for Fair Hous. v. Berkeley,

454 U.S. 290 (1981) ...................................

9

D.C. Citizen Publ’g. Co. v.

Merchants & Mfrs. Ass’n,

83 F. Supp. 994 (D.D.C. 1949) ..................

5

Hunt v. Air Prods. & Chems.,

No. 052-9419, 2006 WL 1229082

(Mo. Cir. Apr. 20, 2006) ............................

14

In re Asbestos Sch. Litig.,

46 F.3d 1284 (3d Cir. 1994) .......... 12, 13, 14, 15

In re Citric Acid Litig.,

191 F.3d 1090 (9th Cir. 1999) ...................

5

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ...................................

8

Maple Flooring Mfrs. Ass’n v.

United States,

268 U.S. 563 (1925) ...................................

5

McConnell v. FEC,

540 U.S. 93 (2003) .....................................

12

Meyers v. Donnatacci,

531 A.2d 398 (N.J. Super. Ct. Law Div.

1987) ..........................................................

5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Morgan v. W.R. Grace & Co.,

779 So. 2d 503 (Fla. Dist. Ct. App. 2000) .

14

NAACP v. Alabama ex. rel. Patterson,

357 U.S. 449 (1958) ................................... 9, 11

NAACP v. Claiborne Hardware, Co.,

458 U.S. 886 (1982) ................................... 9, 11

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ...................................

12

Scales v. United States,

376 U.S. 203 (1961) ...................................

11

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ...................................

8, 9

OTHER AUTHORITIES

EPA Sector Strategies Performance Report

(March 2006) .............................................

2, 6

INTRODUCTION AND INTEREST OF AMICUS

Amicus curiae the American Coatings Association

(ACA) respectfully submits this brief in support of

the Petitioners.1 ACA is a voluntary, nonprofit trade

association representing some 250 manufacturers of

paints and coatings, raw materials suppliers, distributors, and technical professionals. As the preeminent

organization representing the coatings industry in the

United States, a principal role of ACA is to serve as an

advocate for its membership on legislative, regulatory,

and judicial issues at all levels. In addition, ACA

undertakes programs and services that support the

paint and coatings industries’ commitment to environmental protection, sustainability, product stewardship, health and safety, corporate responsibility, and

the advancement of science and technology. Collectively, ACA represents companies with greater than

90% of the country’s annual production of paints and

coatings, which are an essential component to virtually every product manufactured in the United States.

ACA (formerly the National Paint & Coatings

Association, Inc.) and its member companies have

undertaken significant voluntary efforts, particularly

in the area of environmental, health and safety to the

benefit of industry and the professionals, communities, and customers they serve. This has included

efforts to address the problems of lead arising from

deterioration and the failure of property owners to

maintain their property in lead safe condition. While

1

No counsel for a party authored this brief in whole or in part,

and no person other than the amicus curiae or its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing

of this brief; blanket letters of consent have been lodged with the

clerk.

2

intact lead paint is not a health hazard, a risk of lead

exposure does arise where historically applied lead

paint chips or deteriorates. ACA and its members

have actively worked with many governments and

nonprofit organizations to provide education and

training on the dangers of childhood lead poisoning

and the need to address lead-based paint hazards in

residential housing.

As recognized by the U.S. Environmental Protection

Agency, ACA has spearheaded a number of such initiatives, such as a 2003 landmark cooperative agreement with Attorneys General from 46 states, plus

the District of Columbia and three territories, “which

establishes a national program of consumer paint

warnings, point-of-sale information, and education

and training to avoid the potential exposure to [EPAHUD] lead-dust hazards.” EPA Sector Strategies

Performance Report (March 2006), at 64.2 This program delivered significant benefits, including:

2



Over 600 million gallons of consumer

paints each year labeled with universal

product sticker program and permanent

product labeling to alert consumers that

lead dust exposure may occur during the

renovation and remodeling of buildings

that may contain old, lead-based paint;



Almost 5 million consumer information

brochures on lead paint hazards, printed

in English and Spanish, were distributed

for counter display and distribution at

A complete copy of the report can be found at https://archive.

epa.gov/sectors/web/html/performance2006.html (last visited

August 1, 2018).

3

tens of thousands of paint outlets throughout the United States; and



Sponsorship of a four-year voluntary cooperative National Lead-Safe Work Practices Training Program (English/Spanish),

which trained 17,000 contractors, code officials, facility managers, landlords, homeowners, and children’s health advocates

on lead-safe work practices at 700 tuition

free courses in all 50 states and the

District of Columbia.

ACA, with the support of its membership, founded

the Community Lead Education and Reduction Corps

(CLEARCorps USA), an award-winning, landmark

private-public partnership now providing lead hazard

reduction support services across the U.S. Through

a national network program, its affiliate sites are

located in high-risk communities and are communitybased and community driven. Utilizing a range of

interventions, the program focuses on the elimination

of childhood lead poisoning for those at most risk

through directed education programs and on-theground assistance for property owners, families, and

children. CLEARCorps remains an active and vital

tool to combat childhood lead poisoning.3

Further, ACA, as Secretariat for the International

Paint and Printing Ink Council, Inc. (IPPIC), continues to participate in the Lead Paint Alliance (LPA).

LPA is a voluntary partnership formed by United

Nations Environment and the World Health Organization to prevent exposure to lead, while promoting the

phase-out of paints containing lead, including the

3

This and further information about CLEARCorps is available

at http://www.clearcorps.org (last visited August 1, 2018).

4

promotion of international legislation and regulation

restricting the use of lead in paints.4 The LPA includes

50 organizations (non-governmental organizations,

governmental agencies, intergovernmental organizations, and industry) that share an interest in lead risk

reduction, including the U.S. EPA, Chair of the

Technical Advisory Group for the LPA.

ACA and the IPPIC member associations support

legal restrictions on lead use in paints where there is

the potential for exposure and health risks, especially

to children. The LPA is focused on developing countries that have not yet put in place controls on lead use

in paint. This effort relies on the support of the

national governments to engage with local industry

and environmental groups to work constructively

with the authorities to bring about positive change.

ACA and IPPIC’s participation includes establishing

regional industry “champions” to align with the UN’s

target regions for engaging governments to act, conducting industry workshops as needed, and facilitating implementation of new rules by increasing awareness of restrictions and the technical measures to

achieve compliance.

The efforts of ACA and its membership on behalf

of those at risk to lead exposure from improperly

maintained and deteriorating lead paint is indicative

of the important role that trade associations serve in

providing a venue whereby business enterprises can

associate, communicate, and cooperatively work for

the well-being of the public. This Court and other

4

This and further information about the LPA is available at

https://www.unenvironment.org/explore-topics/chemicals-waste/

what-we-do/emerging-issues/global-alliance-eliminate-lead-paint

(last visited August 1, 2018).

5

courts have specifically recognized the array of

important services that are provided by trade associations. Trade associations “often serve legitimate functions, such as providing information to industry members, conducting research to further the goals of the

industry, and promoting demand for products and

services.” In re Citric Acid Litig., 191 F.3d 1090, 1098

(9th Cir. 1999) (citing Maple Flooring Mfrs. Ass’n v.

United States, 268 U.S. 563, 567 (1925)).

Such organizations serve many laudable purposes in our society. They contribute to the

specific industry by way of sponsoring educational activities, and assisting in marketing,

maintaining governmental relations, researching, establishing public relations, standardization and specification within the industry,

gathering statistical data and responding to

consumer needs and interests. Furthermore,

trade associations often serve to assist the

government in areas that it does not regulate.

Meyers v. Donnatacci, 531 A.2d 398, 404 (N.J. Super.

Ct. Law Div. 1987); see also D.C. Citizen Publ’g. Co. v.

Merchants & Mfrs. Ass’n, 83 F. Supp. 994, 998 (D.D.C.

1949) (trade associations “serve a useful purpose in

the economic life of any community”).

The Environmental Protection Agency likewise has

extolled the crucial role trade associations serve as

liaison between industry and government regulators

in protecting the environment.

[T]rade associations can play an important

role in promoting environmental stewardship. For example, they can provide critical

technical expertise in identifying and vetting

innovative ideas to advance their sectors’

6

performance, and they can take on leadership

positions to encourage the adoption of these

ideas. Many trade associations promote

changes that better prepare members to meet

evolving market conditions, such as increasing preferences for greener products and production activities or certification to International Organization for Standardization

(ISO).

(EPA Sector Strategies Performance Report (March

2006) at 1.)

ACA submits this amicus brief because the ruling

below premises Petitioners’ liability upon their membership in and contributions to a trade association.

ACA has a significant interest in seeking to reverse

this erroneous, damaging holding. The ruling below

threatens an immediate and material chilling effect

upon the First Amendment rights of all trade associations and their member companies by raising the

specter that associational activities will impermissibly

be used to establish liability for hundreds of millions

of dollars in damages by filling evidentiary gaps where

plaintiffs cannot identify defendant/member-specific

evidence necessary to establish liability.

ARGUMENT

In the decision below, the California Court of Appeal

upheld (and the California Supreme Court refused to

review) the trial court’s decision to hold individual

companies liable for a novel and overreaching form

of “public nuisance” based exclusively on early 20th

century truthful advertisements promoting lead paint

for interior use – at a time when there was no legal

restriction on the use of such paint. In finding

Petitioners liable, the Court of Appeal particularly

7

relied on their contributions to two promotional

campaigns sponsored by a trade association, Lead

Industries Association (LIA) (not affiliated with ACA).

By basing liability substantially on individual

companies’ membership in and contributions to a

trade association, the Court of Appeal disregarded

Petitioners’ First Amendment rights to association

and this Court’s precedents. Unless reversed by this

Court, this ruling will have a substantial, immediate

chilling effect on companies’ participation in trade

associations. The ruling below jeopardizes the continued participation of members in trade associations

and progress toward many beneficial industry programs comparable to those noted above. The Court

should grant the petition for certiorari review.

I. BUSINESSES SHOULD NOT FACE THE

RISK OF CIVIL LIABILITY FOR EXERCISE OF THEIR FIRST AMENDMENT

RIGHTS TO ASSOCIATION.

In a few short paragraphs, the California Court of

Appeal dismissed Petitioners’ First Amendment rights

by construing truthful advertising about a lawful

product for a lawful use as “inherently misleading.”

Sherwin-Williams Pet. App. 48a-49a, 57a. In doing

so, the court did not address this Court’s freedom

of association jurisprudence, but instead held that

Petitioners’ “participation in trade-associationsponsored lead paint promotional advertising [was]

not entitled to any First Amendment protections.”

Sherwin-Williams Pet. App. 48a. The ruling below,

however, is patently contrary to this Court’s precedent

and in conflict with a holding by the Third Circuit

Court of Appeals.

8

Commercial messaging is “protected expression”

warranting “heightened judicial scrutiny.” Sorrell v.

IMS Health Inc., 564 U.S. 552, 565 (2011). Such

speech only falls outside the bounds of First Amendment protection if it is misleading or relates to illegal

activity. See Central Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n, 447 U.S. 557, 564 (1980). There is no

dispute that the use of lead paint in residential

interiors was lawful at the time of the promotions

at issue. The court below also failed to point to

any particular language in the advertising that was

misleading or untruthful. Instead, the court declared

that all promotions of lead paint for interior use were

“inherently misleading” because such promotions

“implicitly asserted that it was safe for such use when

it was not.” Sherwin-Williams Pet. App. 57a.

This post-hoc re-characterization of truthful speech

about a lawful product as “misleading” based on current ideas about the product’s safety disregards this

Court’s free speech jurisprudence. “[A] State’s paternalistic assumption that the public will use truthful,

nonmisleading commercial information unwisely cannot justify a decision to suppress it[.]” 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 497 (1996)

(plurality opinion). Thus, truthful speech about lawful

products such as alcohol or tobacco receives First

Amendment protection, although use of such products

may, in some cases, result in harm. The fact that

a lawful product may “pose[ ] some threat to public

health . . . fails to provide a principled justification

for the regulation of commercial speech about that

activity.” Id. at 514 (plurality opinion); see also

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 570-71

(2001) (although tobacco use poses a “significant”

public health threat, as long as it is lawful for adults,

“the tobacco industry has a protected interest in

9

communicating information about its products”). Nor

is it proper to “silence unwanted speech by burdening

its utterance.” Sorrell, 564 U.S. at 566. And when a

State burdens “the dissemination of truthful, nonmisleading commercial messages for reasons unrelated

to the preservation of a fair bargaining process, there

is far less reason to depart from the rigorous review

that the First Amendment generally demands.” 44

Liquormart, 517 U.S. at 501 (plurality opinion).

Basing tort liability on historic, truthful advertising of

a lawful product for a then-lawful use because the

court now deems that use to be unsafe is a clear and

unconstitutional burden on commercial speech. Basing liability on truthful promotions by a trade association compounds the injury by burdening and ultimately impairing the right to freedom of association.

This Court repeatedly has emphasized the central

role of the First Amendment right to association in our

constitutional democracy. “[T]he practice of persons

sharing common views banding together to achieve

a common end is deeply embedded in the American

political process.” NAACP v. Claiborne Hardware,

Co., 458 U.S. 886, 907 (1982) (quoting Citizens Against

Rent Control/Coal. for Fair Hous. v. Berkeley, 454 U.S.

290, 294 (1981)). “Effective advocacy of both public

and private points of view, particularly controversial

ones, is undeniably enhanced by group association.”

Id. at 908 (quoting NAACP v. Alabama ex. rel.

Patterson, 357 U.S. 449, 460 (1958)).

In this case, however, the Court of Appeal

repeatedly pointed to generic promotional campaigns

by trade associations – that did not even refer to any

specific manufacturer of lead paint – as key evidence

10

of Petitioners’ liability. 5 For example, when discussing how promotions “played at least a ‘minor’ role in

creating the nuisance,” the first thing the court noted

is that “all three defendants participated in the LIA’s

Forest Products campaign.” Sherwin-Williams Pet.

App. 65a. In light of scant evidence that Petitioner the

Sherwin-Williams Company specifically advertised

the use of lead paint for interior residential use, the

court highlighted that it “participated in LIA’s Forest

Products campaign from 1937 to 1941[.]” SherwinWilliams Pet. App. 62a-63a. That participation was

that, between 1937 and 1941, Sherwin Williams

donated $250 quarterly to the LIA promotional campaign. Sherwin-Williams Pet. App. 399a.

Thus, the State ruled that factually truthful promotion of lawful products by an association receives no

First Amendment protection if those products are

found to be or become hazardous in some way. The

Court of Appeal accepted this unconstitutional gambit

without question, agreeing that the three defendants

were collectively liable because they “generically

promoted lead paint for interior residential use”

through their membership in a trade association.

Sherwin-Williams Pet. App. 95a.

This Court has explained that the First Amendment

“restricts the ability of the State to impose liability on

an individual solely because of his association with

another” because allowing such actions would present

5

The court made quite clear that: “Defendants are liable for

promoting lead paint for interior residential use. To the extent

that this promotion caused lead paint to be used on residential

interiors, the identity of the manufacturer of that lead paint is

irrelevant. Indeed, the LIA’s promotions did not refer to any

manufacturer of lead paint, but were generic.” Sherwin-Williams

Pet. App. 75a (additional emphasis added).

11

“a real danger that legitimate political expression or

association would be impaired.” Claiborne Hardware,

458 U.S. at 918-19 (quoting Scales v. United States,

367 U.S. 203, 229 (1961)). Moreover, “[i]n the domain

of . . . indispensable liberties, whether of speech, press,

or association, the decisions of this Court recognize

that abridgment of such rights, even though unintended, may inevitably follow from varied forms of

governmental action.” Alabama, 357 U.S. at 461.

Government action may be precluded where it “may

induce members to withdraw from [an] Association

and dissuade others from joining it.” Id. at 463.

“Civil liability may not be imposed merely because

an individual belonged to a group.”

Claiborne

Hardware Co., 458 U.S. at 920. “For liability to be

imposed by reason of association alone, it is necessary

to establish that the group itself possessed unlawful

goals and that the individual held a specific intent to

further those illegal aims.” Id.

Here, there was no evidence that LIA had any

unlawful purpose or that any Petitioner, by joining

and contributing to LIA, had a specific intent to

further an illegal goal. Instead, at the time Petitioners

joined and contributed to LIA, lead paint use in

residential interiors was both legal and widespread.

See Sherwin-Williams Petitioner’s Br. at 7-8; ConAgra

Petitioners’ Br. at 4. As this Court explained, to assess

liability, the individual group member’s intent “must

be judged according to the strictest law.” Claiborne

Hardware Co., 458 U.S. at 919. “In this sensitive field,

the State may not employ means that broadly stifle

fundamental personal liberties when the end can be

more narrowly achieved.” Id. at 920; see also Central

Hudson, 447 U.S. at 565 (“the First Amendment

12

mandates that speech restrictions be narrowly drawn”

(internal quotation marks & citation omitted)).

To the extent Petitioners’ liability was based on the

funds they contributed to LIA rather than their

membership, such contributions are no less deserving

of First Amendment protection. This Court has stated

“that ‘implicit in the right to engage in activities

protected by the First Amendment’ is ‘a corresponding

right to associate with others in pursuit of a wide

variety of political, social, economic, educational, religious, and cultural ends.’” McConnell v. FEC, 540 U.S.

93, 256 (2003) (opinion of Scalia, J.) (quoting Roberts

v. United States Jaycees, 468 U.S. 609, 622 (1984)).

“That ‘right to associate . . . in pursuit’ includes the

right to pool financial resources.” Id.

In accepting and endorsing the unconstitutional

arguments pursued by the People of the State of

California at trial, the ruling below disregards these

fundamental principles. It also directly conflicts with

a ruling by the Third Circuit Court of Appeals. In

In re Asbestos School Litigation, the Third Circuit

granted the extraordinary remedy of mandamus to

reverse a district court opinion that would have

allowed plaintiff school districts to proceed with

concert of action claims premised on an asbestos

manufacturer’s membership in and contributions to a

trade association. 46 F.3d 1284, 1286-87 (3d Cir.

1994). As with the State here, the school district

plaintiffs in In re Asbestos School Litigation argued

that the manufacturer could be held liable due to the

trade association’s alleged misleading conduct in

disseminating information about the potential health

impacts of the manufacturer’s products. See id. at

1287. The Third Circuit held that mandamus relief

was necessary because even allowing the claims to

13

proceed would have imposed an intolerable restraint

on the petitioner’s First Amendment rights: “Mandamus has been found to be proper in these cases because

the duration of a trial is an ‘intolerably long’ period

during which to permit the continuing impairment of

First Amendment rights.” Id. at 1294. As then-Judge

Alito, writing for the Third Circuit, explained:

[R]equiring [petitioner] to stand trial . . .

predicated solely on its exercise of its First

Amendment freedoms could generally chill

the exercise of the freedom of association by

those who wish to contribute to, attend the

meetings of, and otherwise associate with

trade groups and other organizations that

engage in public advocacy and debate.

Id. at 1295-96.

In ordering a halt to the school district’s claims, the

Third Circuit held that the district court’s opinion

allowing the claims to proceed lay “far outside the

bounds of established First Amendment law,” was

“clearly wrong,” and had “implications that broadly

threaten First Amendment rights.” Id. at 1289, 1294.

“Joining organizations that participate in public

debate, making contributions to them, and attending

their meetings are activities that enjoy substantial

First Amendment protection. . . . But the district

court’s holding, if generally accepted, would make

these activities unjustifiably risky and would

undoubtedly have an unwarranted inhibiting effect

upon them.” Id. at 1294 (citations omitted).

A similar ruling was handed down in the welding

rod products litigation, where plaintiffs sought to

bring concert of action claims against members of two

trade associations that had allegedly concealed or

14

misrepresented purported hazards of welding fumes.

See Hunt v. Air Prods. & Chems., No. 052-9419, 2006

WL 1229082 (Mo. Cir. Apr. 20, 2006). The court ruled

that “[p]laintiffs’ reliance on the thread of membership

in trade associations is patently insufficient to establish an actionable conspiracy. Obviously, defendants

enjoy a constitutional right to form and maintain trade

associations. Defendants likewise enjoy a constitutional right to disseminate information.” Id. at *3.

In dismissing plaintiffs’ claims, the court held:

“Paramount is the burdening of fundamental rights

of speech and association. . . . [D]efendants have

an absolute right to associate and speak on matters

of public importance.” Id. at *5. “[P]laintiffs would

impose substantial burdens on those rights if, by

associating for the purpose of promoting their economic interests, the defendants thereby were exposed

to liability.” Id.; see also Morgan v. W.R. Grace & Co.,

779 So. 2d 503, 505 (Fla. Dist. Ct. App. 2000) (rejecting

claims against trade association based on its alleged

marketing, promoting, and encouraging the sale of

radioactive land “given the First Amendment concerns

this would raise”).

The ruling below is as much outside the bounds of

established First Amendment law as that reversed

upon mandamus in In re Asbestos School Litigation.

Much of the evidence admitted at trial in this case

and highlighted by the ruling below is of exactly

the type held impermissible by these other courts.

For instance, one of plaintiffs’ experts was allowed to

testify that “these Defendants, through their trade

associations, downplayed the hazards of lead; and

these Defendants, through their trade associations,

fought the imposition of regulations.”

SherwinWilliams Pet. App. 31a. Plaintiffs also pointedly

“relied on the LIA’s two promotional campaigns.”

15

Sherwin-Williams Pet. App. 51a. The Petitioners’

lawful and constitutionally protected trade association

activities clearly were the foundation upon which the

court below framed its finding of liability. The ruling

below impermissibly predicates Petitioners’ liability

upon association speech to conveniently fill evidentiary gaps and support an otherwise suspect theory of

public nuisance.

II. THE RULING BELOW THREATENS

TO CHILL ASSOCIATIONAL RIGHTS

ACROSS MANY INDUSTRIES.

Review in this case is warranted not just because

the decision below is incorrect and disregards this

Court’s jurisprudence, but because it also threatens to

chill the free association rights of companies in any

industry where a lawful product may one day be

deemed hazardous by a court. For example, Petitioner

The Sherwin-Williams Company was found jointly

and severally liable for hundreds of millions of dollars

in damages not because its own products or messages

were found to cause harm to any plaintiff, but because

it contributed, decades ago, a total of $5,000 to a trade

association that was used to generally promote lead

paint for then-lawful interior residential use. The

stark premise of this ruling is that a company’s

contributions to a trade association used to promote a

lawful product for a lawful use may one day be ample

evidence of liability, raising no constitutional concerns. This broad, unprecedented, and unconstitutional form of liability can easily ensnare member

companies across numerous industries, leading to a

substantial chill on trade association activity. As

then-Judge Alito cautioned in In re Asbestos School

Litigation, allowing an individual company’s liability

to be based “solely on its exercise of its First

16

Amendment freedoms” could chill freedom of association activities for any company that would otherwise

attend the meetings of, contribute to, or align with a

trade group. 46 F.3d at 1295-96. Without membership

support and participation, the laudable work of trade

associations, such as those previously noted, will

cease.

Unless the ruling below is reversed, a message

will be sent that companies that participate in trade

associations – even with regard to the sale of lawful

products with no showing of intentionally misleading,

untruthful, or unlawful conduct – do so at their peril.

This sharp infringement on First Amendment rights

should not be allowed.

CONCLUSION

For the foregoing reasons, the American Coatings

Association, amicus curiae herein, urges the Court to

grant the petition for writ of certiorari.

Respectfully submitted,

ERIC G. LASKER

Counsel of Record

TAMARA FISHMAN BARAGO

HOLLINGSWORTH LLP

1350 I Street, NW

Washington, DC 20005-3305

(202) 898-5800

elasker@hollingsworthllp.com

Counsel for Amicus

August 17, 2018