Amicus Curiae Brief — The Sherwin-Williams Company, Petitioner v. California

Supreme Court briefAug 17, 2018

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NOS. 18-84, 18-86

In the Supreme Court of the United States

CONAGRA GROCERY PRODUCTS COMPANY, et al.,

CALIFORNIA,

Petitioners,

Respondent.

THE SHERWIN-WILLIAMS COMPANY,

CALIFORNIA,

Petitioner,

Respondent.

On Petitions for Writ of Certiorari to the Court of Appeal

of California, Sixth Appellate District

AMICI CURIAE BRIEF OF THE CIVIL JUSTICE

ASSOCIATION OF CALIFORNIA, CALIFORNIA

CHAMBER OF COMMERCE, AND CALIFORNIA

MANUFACTURERS & TECHNOLOGY ASSOCIATION

IN SUPPORT OF PETITIONERS

Fred J. Hiestand

Counsel of Record

3418 Third Avenue, Suite 1

Sacramento, CA 95817

(916) 448-5100

fred@fjh-law.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . 1

IMPORTANCE OF ISSUES THIS CASE

PRESENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SALIENT FACTS AND PERTINENT LAWS

INFORMING THE ISSUES . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. THE OPINION’S CONSTRUCTION AND

APPLICATION OF THE “PUBLIC NUISANCE”

DOCTRINE RENDERS IT AN AMORPHOUS

BLOB

THAT

VIOLATES

THE

CONSTITUTIONAL GUARANTEES TO DUE

PROCESS, FREE EXPRESSION AND

FREEDOM OF ASSOCIATION . . . . . . . . . . . . 10

A. Judicial Construction of California’s Public

Nuisance Doctrine Rids it of any Guiding

Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. The California Court’s Construction and

Application of “Public Nuisance” Law

Violates Due Process Because it Renders it

Void for Vagueness and Imposes Retroactive

and Excessive Liability on Petitioners . . . . 12

C. Imposing Public Nuisance Liability Upon

Petitioners Because they “Promoted” the Sale

of their Lawful Paints through Decades-Old

Advertisements they and Trade Associations

Published Violates the First Amendment . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES

CASES

In re Asbestos School Litigation,

46 F.3d 1284 (1994) . . . . . . . . . . . . . . . . . . . . . . 24

Baggett v. Bullitt,

377 U.S. 360 (1964) . . . . . . . . . . . . . . . . . . . . . . 12

Cantwell v. Connecticut,

310 U.S. 296 (1940) . . . . . . . . . . . . . . . . . . . . . . 16

Central Hudson Gas & Elec. Corp. v. Public Service

Comm’n. Of New York, 447 U.S. 557 (1980) . . . 23

In re Chevron,

109 F.3d 1016 (5th Cir. 1997) . . . . . . . . . . . 19, 20

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) . . . . . . . . . . . . . . . . . . . . . . 24

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926) . . . . . . . . . . . . . . . . . . . 14, 16

Connick v. Lucky Pierre’s,

331 So. 2d 431 (La. 1976) . . . . . . . . . . . . . . . . . . 16

County of Santa Clara v. Superior Court,

50 Cal.4th 35 (2010) . . . . . . . . . . . . . . . . . . . . 5, 10

Eastern Enterprises v. Aptel,

524 U.S. 498 (1998) . . . . . . . . . . . . . . . . . . . 16, 17

Edenfield v. Fane,

507 U.S. 761 (1993) . . . . . . . . . . . . . . . . . . . . . . 22

Florida Bar v. Went For It, Inc.,

515 U.S. 618 (1995) . . . . . . . . . . . . . . . . . . . . . . 22

iii

Geo-Tech Reclamation Indus., Inc. v. Hamrick,

886 F.2d 662 (4th Cir. 1989) . . . . . . . . . . . . . . . 12

Grayned v. City of Rockford,

408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . 14

Grove Press Inc. v. City of Philadelphia,

418 F.2d 82 (3d Cir. 1969) . . . . . . . . . . . . . . 15, 16

Hill v. Colorado,

530 U.S. 703 (2000) . . . . . . . . . . . . . . . . . . . . . . 12

Hurtado v. California,

110 U.S. 516 (1884) . . . . . . . . . . . . . . . . . . . . . . 13

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

494 U.S. 827 (1990) . . . . . . . . . . . . . . . . . . . . . . 16

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) . . . . . . . . . . . . . . . . . . . . . . 17

Lanzetta v. New Jersey,

306 U.S. 451 (1939) . . . . . . . . . . . . . . . . . . . . . . 12

Li v. Yellow Cab Co.,

13 Cal.3d 804 (1975) . . . . . . . . . . . . . . . . . . . . . 11

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) . . . . . . . . . . . . . . . . . . . . . . 19

People ex. rel. Clancy v. Superior Court,

39 Cal.3d 740 (1985) . . . . . . . . . . . . . . . . . . . . . . 5

Philip Morris USA Inc. v. Scott,

561 U.S. 1301 (2010) . . . . . . . . . . . . . . . . . . 19, 20

Philip Morris USA v. Williams,

549 U.S. 346 (2007) . . . . . . . . . . . . . . . . . . . 17, 18

Rogers v. Tennessee,

532 U.S. 451 (2001) . . . . . . . . . . . . . . . . . . . . . . 13

Rubin v. City of Santa Monica,

823 F. Supp. 709 (C.D. Cal. 1993) . . . . . . . . . . . 16

Trustees of Dartmouth Coll. v. Woodward,

17 U.S. (4 Wheat.) 518 (1819) . . . . . . . . . . . . . . 13

Virginia Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) . . 22

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) . . . . . . . . . . . . . . . . . . . . . . 18

CONSTITUTION AND STATUTES

U.S. Const. amend. I . . . . . . . . . . . . . 9, 21, 22, 23, 24

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . 21

15 U.S.C. §§ 2601-90 . . . . . . . . . . . . . . . . . . . . . . . . . 8

15 U.S.C. § 2683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 4851a(1) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cal. Code Regs., Tit. 17, § 33001 et. seq. . . . . . . . . . 8

Cal. H & S Code § 105275 et. seq. . . . . . . . . . . . . . . 8

Cal. H & S Code § 124125 et. seq. . . . . . . . . . . . . . . 8

OTHER AUTHORITIES

Samuel W. Buell, The Upside of Overbreadth, 83

N.Y.U.L. REV. 1491 (2008) . . . . . . . . . . . . . . . . . 15

Henry N. Butler & Todd J. Zywicki, Expansion of

Liability under Public Nuisance (2010) 18 SUP.

CT. ECON. REV. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 3

Paul A. Diller, Combating Obesity with a Right to

Nutrition, 101 GEO. L.J. 969 (2013) . . . . . . . . . . 4

Richard O. Faulk & John S. Gray, Alchemy in the

Courtroom? The Transmutation of Public

Nuisance Litigation, 2007 MICH. ST. L. REV.

941 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5

THE FEDERALIST NO. 62 (James Madison) (Clinton

Rossiter ed., 1961) . . . . . . . . . . . . . . . . . . . . . . . 15

Henry M. Hart, Jr., The Aims of the Criminal Law,

23 LAW & CONTEMP. PROBS. 401 (1958) . . . . . . 14

John Calvin Jeffries, Jr., Legality, Vagueness, and

the Construction of Penal Statutes, 71 VA. L.

REV. 189 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Coleen Klasmeier & Martin H. Redish, Off-Label

Prescription Advertising, the FDA and the First

Amendment: A Study in the Values of

Commercial Speech Protection (2011) AM. J. OF

LAW & MEDICINE 315 . . . . . . . . . . . . . . . . . . . . . 24

Lisa A. Perillo, Scraping Beneath the Surface:

Finally Holding Lead-Based Paint

Manufacturers Liable by Applying Public

Nuisance and Market-Share Liability, 32

HOFSTRA L. REV. 1039 (2004) . . . . . . . . . . . . . . . 5

Dorothy Rothrock, Shaking Down Manufacturers

Doesn’t Help California’s Fight against Climate

Change, THE SACRAMENTO BEE,

August 7, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Victor E. Schwartz, Phil Goldberg & Christopher E.

Appel, Deep Pocket Jurisprudence: Where Tort

Law Should Draw the Line, 70 OKLA. L. REV.

359 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kimberly Willis, Taking on the Fossil Fuel Industry:

Why California’s Public Nuisance Lawsuits May

Succeed Where Others have Failed, HASTINGS

ENVIRONMENTAL L. J.: http://sites.uchastings.

edu/helj/2017/10/16/taking-on-the-fossil-fuel-in

dustry-why-californias-public-nuisance-lawsuit

s-may-succeed-where-others-have-failed-by-ki

mberly-willis/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

INTEREST OF AMICI1

The Civil Justice Association of California (“CJAC”)

is a 40-year-old association of businesses, professional

organizations and financial institutions dedicated to

making our civil liability laws more fair, economical,

uniform and certain. Toward this end, CJAC regularly

petitions the government for redress of grievances

when it comes to determining who owes, how much,

and to whom when some claim that the conduct of

others occasions them harm. The constitutional issues

presented by this case fall plainly within CJAC’s

principal objectives.

The California Chamber of Commerce

(“CalChamber”) is a nonprofit business association with

more than 13,000 members, both individual and

corporate, representing virtually every economic

interest in the state. For more than a century,

CalChamber has been the voice of California

businesses. While CalChamber represents several of

the largest corporations in California, 75% of its

members are smaller businesses with less than 100

employees. CalChamber acts on behalf of the business

community to improve the state’s economic and

employment climate on a broad array of legislative,

regulatory, and legal issues that, like this one, threaten

serious impositions.

Counsel of record for the parties received notice of the intent to

file this brief. Petitioners and Respondent have given blanket

consent for the filing of amicus briefs. No counsel for any party in

this case authored this brief in whole or in part. No person or

entity aside from Amici, their members, or their respective counsel

made a monetary contribution to the preparation or submission of

this brief.

The California Manufacturers & Technology

Association (“CMTA”) works to improve and enhance a

strong business climate for California’s 30,000

manufacturing, processing and technology based

companies. Since 1918, CMTA has worked with state

government to develop balanced laws, effective

regulations and sound public policies to stimulate

economic growth and create new jobs while

safeguarding the state’s environmental resources.

CMTA represents 400 businesses from the entire

manufacturing community – an economic sector that

generates more than $230 billion every year and

employs more than 1.2 million Californians.

IMPORTANCE OF ISSUES THIS CASE

PRESENTS

Amici are deeply worried that if the opinion below

remains undisturbed, its construal of public nuisance

doctrine is so amorphous and untethered by recognition

of constitutional safeguards that numerous products,

though completely legal and proper for manufacture,

sale and promotion at the time, can be deemed more

than a half-century later to constitute a “public

nuisance.” The consequence is that, as here, the

manufacturers and promoters of these products will be

forced to pay gargantuan sums to cash strapped public

entities for damages or abatement. As a law review

article astutely warned a decade ago about the dangers

of this then-looming phenomena:

The vagueness of public nuisance jurisprudence

is currently being exploited in new and

unprecedented ways as a substitute for products

liability claims by some public authorities and

their private counsel. They are pursuing their

claims against manufacturers under the guise of

“public nuisance” to overcome obstacles and

defenses that ensured fairness for products

liability defendants and to sidestep

comprehensive statutory schemes created by

state and federal legislatures that address the

alleged problem.

Richard O. Faulk & John S. Gray, Alchemy in the

Courtroom? The Transmutation of Public Nuisance

Litigation, 2007 MICH. ST. L. REV. 941, 948 (footnotes

omitted).

This was no “the sky is falling” alarm; the

omnivorous public nuisance threat has since morphed

into targeting manufactured products besides lead

paint because “the allegations asserted in [public

nuisance] claims are not unique to lead paint but can

be applied generically . . . to virtually any product or

conduct imaginable.” Id. at 945. “From guns to lead

paint to sub-prime mortgages to global climate change,

use of the common law doctrine of public nuisance to

recover damages [or, as here, monstrous abatement

costs] allegedly caused by the actions of multiple

parties over many years is rising.” Henry N. Butler &

Todd J. Zywicki, Expansion of Liability under Public

Nuisance (2010) 18 SUP. CT. ECON. REV. 1.

Add to this growing list of stigmatized “bad guy”

defendants now subject to public nuisance liability,

pharmaceutical manufacturers and purveyors of fast

food. “A rapidly growing series of lawsuits, which

originated as public nuisance claims, involve

governments suing pharmaceutical manufacturers,

distributors, and pharmacies over the costs associated

with treating and fighting prescription opioid abuse in

their communities.” Victor E. Schwartz, Phil Goldberg

& Christopher E. Appel, Deep Pocket Jurisprudence:

Where Tort Law Should Draw the Line, 70 OKLA. L.

REV. 359, 382 (2018). “[B]y significantly interfering

with public health, fast-food restaurants and others

may constitute a public nuisance. . . Just as the public

nuisance doctrine is now generally understood to

protect the public’s right to clean air and water, so too

might courts extend public nuisance to protect the

public’s right to a nutritious environment.” Paul A.

Diller, Combating Obesity with a Right to Nutrition,

101 GEO. L.J. 969, 1009 (2013).

This referenced “rising” in the panoply of perceived

wrongs coming under the expansive umbrella of “public

nuisance” has been, as previously remarked, boosted

considerably through private contingent fee counsel’s

representation of governmental plaintiffs, a toxic

combination responsible for “spearheading the effort to

transmute public nuisance claims from a conduct-based

tort into a harm-based tort.” Predictably, public

nuisance doctrine has become an increasingly

attractive “alternative means to sue manufacturers in

lieu of products liability actions.” Faulk & Gray, supra,

2007 MICH. ST. L. REV at 969.

The unholy alliance between the ventriloquist-like

Edgar Bergen private contingency fee counsel and

Charlie McCarthy cash-strapped public entities

“quickly spread to other [jurisdictions]. [It] reached its

zenith in the late 1990s during the tobacco litigation

that resulted in multibillion-dollar payouts to both

states and their lawyers, and the creation of a new

model for state-sponsored litigation that combines the

prosecutorial power of the government with private

lawyers aggressively pursuing litigation that . . .

generate[s] hundreds of millions in contingent fees.

Now many states no longer think twice about entering

into contingency fee contracts with private plaintiff law

firms.” Id.2

Armed with an amorphous cause of action judicially

emptied of constitutional moorings, as the opinion here

has done with public nuisance, the result for

petitioners and countless other businesses is

catastrophic: “[A] lesson can be learned from asbestos

and tobacco litigation — that despite causation issues,

a single case can have a far-reaching effect, opening a

floodgate of similar litigation and toppling an entire

industry.” Lisa A. Perillo, Scraping Beneath the

Surface: Finally Holding Lead-Based Paint

Manufacturers Liable by Applying Public Nuisance and

Market-Share Liability, 32 HOFSTRA L. REV. 1039, 1041

(2004).

This unfortunate outcome understandably pleases

“true believers” insistent on bypassing the legislative

process and using litigation for social engineering to

Compare e.g., People ex. rel. Clancy v. Superior Court, 39 Cal.3d

740, 750 (1985) (“[T]he contingent fee arrangement between the

[government] and the [private attorney] is antithetical to the

standard of neutrality that an attorney representing the public

must meet when prosecuting a public nuisance . . . action.”) with

County of Santa Clara v. Superior Court, 50 Cal.4th 35, 58 (2010)

(“[R]etention of private counsel on a contingent-fee basis is

permissible in [public nuisance] . . . cases [where the government’s

action poses no threat to fundamental constitutional interests and

does not threaten the continued operation of an ongoing business]

if neutral, conflict-free government attorneys retain the power to

control and supervise the litigation.”).

achieve wealth transference from private, deep-pocket

defendants to the public fisc. As a recent environmental

proponent boasted after the cities of San Francisco and

Oakland sued five Oil Companies – Chevron,

ConocoPhillips, ExxonMobil, Shell, and BP – for public

nuisance:

The [plaintiffs’] strategies . . . in these cases

mirror those used in the tobacco company

lawsuits of the 1990’s, and those tobacco

companies settled for a whopping $206 billion.

Californians [now] have a decent chance at . . .

holding malfeasant corporate polluters

accountable for their actions and winning

billions of dollars to help their communities

adapt to climate change.3

A more sober and sounder explanation on the

consequence of extrapolating public nuisance law to

product manufacturers for contributing to climate

change appeared in a major California newspaper:

“The[se] unjustified lawsuits will add costs to energy

manufacturers by forcing them to defend or settle the

cases. Those costs will be passed on to consumers, other

manufacturers and businesses that depend on fuel for

transportation and production. Piling these new costs

on top of the reasonable costs related to cap and trade

could push production out of state along with their

Kimberly Willis, Taking on the Fossil Fuel Industry: Why

California’s Public Nuisance Lawsuits May Succeed Where Others

have Failed, HASTINGS ENVIRONMENTAL L. J.: http://sites.uchastings.

edu/helj/2017/10/16/taking-on-the-fossil-fuel-industry-why-californ

ias-public-nuisance-lawsuits-may-succeed-where-others-have-fai

led-by-kimberly-willis/ (last visited August 5, 2018).

emissions.” Dorothy Rothrock, Shaking Down

Manufacturers Doesn’t Help California’s Fight against

Climate Change, THE SACRAMENTO BEE, August 7,

2018.

SALIENT FACTS AND PERTINENT LAWS

INFORMING THE ISSUES

In this case, the appellate court affirmed a trial

judge’s order holding three paint manufacturers liable

for “assisting in,” or “contributing to,” a public nuisance

by “promoting,” more than 70 years ago, their paints

through a paucity of newspaper advertisements and

memberships in trade associations.

Specifically, in 1904, Sherwin-Williams (SW) paid

for an advertisement that appeared once in two

California newspapers touting its paints that contained

a lead pigment; and donated $5000 to a trade

organization between 1937-1941, which the

organization used to promote lead paint for lumber

products. That century-old advertising never

mentioned lead, and SW paints intended and labeled

for interior residential use did not contain lead

pigments. SW Pet., p. 2.

ConAgra Grocery Products Company never sold lead

paint itself, but was held liable on the basis that it

acquired the liabilities of W.P. Fuller & Co. (Fuller)

which sold lead paint in the first half of the 20th

century. ConAgra Pet., p. 13. ConAgra was deemed

liable for public nuisance based on a 1931 Fuller

brochure instructing consumers to use its lead paint for

interior residential use, and Fuller’s participation in a

trade association that ran promotional campaigns for

paints in the 1930s and 1940s. NL was held liable

based on a handful of newspaper and magazine articles

it ran during the first half of the 20th century and a

salesman’s manual and handbook that “encouraged the

use of white lead paint on interior surfaces.” Id. at 16.

All of these activities were indisputably legal at the

time they occurred. Indeed, the State of California

specified the use of white lead paint on residential

interiors throughout the 1950s. SW Pet. at 7. By 1955,

SW joined the American Standard Association’s

voluntary ban on residential interior lead-based paint

and issued product warning labels against that use on

its paints. Id. at 8.

It was not until 1977, however, that the federal

government banned residential lead-based paint

manufactured after February 1978. 15 U.S.C. §§ 260190. And it took until 1992 for the federal government to

“set out a comprehensive scheme to regulate, and

eventually eliminate, the risk of lead poisoning in

children from lead paint appearing in pre-1978

structures.” 42 U.S.C. § 4851a(1) and 15 U.S.C. § 2683.

California enacted its own laws in 1986 and 1991to

fund childhood lead-poisoning prevention programs at

the local level, imposing fees on those contributing to

the presence of lead in the environment in proportion

to their estimated contributions. Cal. H & S Code

§§ 105275 et. seq. and § 124125 et. seq. The bulk of

those fees – 85% – were assessed on gasoline producers,

with paint manufacturers assessed for 14% of the total.

Cal. Code Regs., Tit. 17, § 33001 et. seq.

These combined federal-state efforts to reduce the

risk of lead poisoning have been remarkably successful,

reducing the incidence of lead poisoning in the past

half-century by 90 percent as measured by the average

blood levels of a statistically valid sample of people.

ConAgra Pet., p. 7.

SUMMARY OF ARGUMENT

The challenged opinion unconstitutionally

extrapolates public nuisance liability into an

undefinable, amorphous blob.

Specifically, as

construed and applied here, the opinion violates due

process by removing from that doctrine the bedrock

requirements of “causation” and “reliance” common to

all civil wrongs; and then uses this newly constituted

vagarious wrong to impose excessive and retroactive

liability on today’s targeted defendants for conduct that

was indisputably legal when it occurred more than 70

years ago.

In addition, the opinion’s construction and

application of its newfangled “public nuisance” doctrine

violates the First Amendment by imposing liability on

petitioners for promoting their products with a handful

of truthful advertisements they placed directly and

through two trade associations they joined. Rights to

freedom of expression and association have been

trammeled in the process and are deserving of the

Court’s review for correction.

ARGUMENT

I. THE OPINION’S CONSTRUCTION AND

APPLICATION OF THE “PUBLIC NUISANCE”

DOCTRINE RENDERS IT AN AMORPHOUS

BLOB

THAT

VIOLATES

THE

CONSTITUTIONAL GUARANTEES TO DUE

PROCESS, FREE EXPRESSION AND

FREEDOM OF ASSOCIATION.

A. Judicial Construction of California’s Public

Nuisance Doctrine Rids it of any Guiding

Standards.

California’s public nuisance doctrine has undergone

transformation from common law, to statute, to

amendment through court interpretation. With each

successive iteration it has become increasingly vague

until, as interpreted and applied in this case, it now

lacks any guiding standards.

California defines a public nuisance as “anything

which is injurious to health, or is indecent, or offensive

to the senses, or an obstruction to the free use of

property, so as to interfere with the comfortable

enjoyment of life or property by an entire community or

neighborhood, or by any considerable number of

persons, or unlawfully obstructs the free passage or

use, in the customary manner, of any navigable lake, or

river, bay, stream, canal, or basin, or any public park,

square, street or highway. . ..” County of Santa Clara

v. Superior Court, supra, 50 Cal.4th at 52.

But the opinion here, after paying lip-service to

ordinary public nuisance elements and requirements,

then excises them from the doctrine. This is because

the court understandably believes it is free to amend

the statute as it sees fit. After all, the state’s high court

holds that courts can amend statutes codifying

common law because the legislature did not intend to

restrict them from further development of concepts

according to “evolving standards of duty, causation,

and liability.” See, e.g., Li v. Yellow Cab Co., 13 Cal.3d

804, 833 (1975) (“The majority’s altering the meaning

of [the more than 100-year-old statute providing for the

defense of contributory negligence to instead provide

for pure comparative fault defense ] . . . represents no

less than amendment by judicial fiat.”(Richardson, J,

dissenting).

Accordingly, respondent here was excused by the

appellate opinion from having to prove “reliance” by

anyone based on petitioners’ paint promotions; nor was

it required to identify any residences containing

petitioners’ paints. As a corollary to this, petitioners

were barred from conducting any discovery into

individual properties to determine the presence of

interior lead paint and how it got there. App. 155-59,

298. Neither was respondent required to prove

“causation” by establishing a “nexus” or connection

between individual petitioners’ lead paint and homes

alleged to contain it. Instead, the opinion simply jumps

to the conclusion that the trial court “could reasonably

infer that at least some of those who were the targets

of [petitioners’ promotions] heeded them,” thus

dispensing with any required proof of “causation” and

“reliance.”

B. The California Court’s Construction and

Application of “Public Nuisance” Law

Violates Due Process Because it Renders it

Void for Vagueness and Imposes

Retroactive and Excessive Liability on

Petitioners.

1. Void for Vagueness. After the appellate court

removed essential justiciable standards from the law of

public nuisance, petitioners were left saddled with

liability for an unconstitutionally vague offense.

The principle animating the “void for vagueness”

doctrine is that it is fundamentally unfair to punish

those who do not and cannot have reasonable warning

that the conduct at issue is illegal. People must be able

to know with some realistic degree of certainty whether

a particular act will violate the law. Lanzetta v. New

Jersey, 306 U.S. 451, 453 (1939) (“No one may be

required at peril of life, liberty or property to speculate

as to the meaning of [prohibitory] statutes. All are

entitled to be informed as to what the State commands

or forbids.”). This requirement prevents arbitrary

punishment, which itself violates the constitutional

prohibition against depriving a person of liberty

without due process of law. Hill v. Colorado, 530 U.S.

703, 732 (2000).

“[T]he ‘void for vagueness’ doctrine [is] applicable to

civil as well as criminal actions.” Baggett v. Bullitt, 377

U.S. 360, 367 (1964) (applying vagueness doctrine to

requirement that teachers take loyalty oaths’ emphasis

added); Geo-Tech Reclamation Indus., Inc. v. Hamrick,

886 F.2d 662, 666 (4th Cir. 1989) (applying vagueness

doctrine to law determining sites for landfills). Civil

statutes no less than criminal laws can impose severe

sanctions on individuals and businesses. Courts often

have difficulty determining which punitive statutes

qualify as “civil” and which qualify as “criminal.” This

confusion is even worse in the context of common law

actions that are codified and later given an interpretive

gloss by courts, such as the “public nuisance” law here.

Due process of law, as Daniel Webster explained

almost two centuries ago, means “‘the general law, a

law which hears before it condemns, which proceeds

upon inquiry, and renders judgment only after trial,’ so

‘that every citizen shall hold his life, liberty, property,

and immunities under the protection of the general

rules which govern society.’” Hurtado v. California, 110

U.S. 516, 535-36 (1884) (quoting Trustees of Dartmouth

Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 581 (1819)

(argument of Mr. Webster)). For the government to act

arbitrarily or against specific persons, rather than

pursuant to general, comprehensible, and

pre-announced rules, would render the law an

instrument of arbitrary will in the hands of

government officials. Thus due process prohibits “acts

of attainder, bills of pains and penalties, acts of

confiscation, acts reversing judgments, and acts

directly transferring one man’s estate to another,

legislative judgments and decrees, and other similar

special, partial, and arbitrary exertions of power.” Id.

at 536.

Requirements of fair notice and warning, and the

prohibition against the arbitrary and vindictive use of

laws, are often simply called the rule of “fundamental

fairness.” See, e.g., Rogers v. Tennessee, 532 U.S. 451,

460 (2001). They forbid the government from enforcing

laws written “in terms so vague that men of common

intelligence must necessarily guess at [their] meaning

and differ as to [their] application.” Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926). Punitive laws

must “employ words or phrases . . . well enough known

to enable those within their reach to correctly apply

them, or a well-settled common-law meaning,

notwithstanding an element of degree in the definition

as to which estimates might differ.” Id.; citations

omitted.

Vague laws involve three basic dangers. First, they

“may trap the innocent” by failing to give people “a

reasonable opportunity to know what is prohibited.”

Second, they encourage “arbitrary and discriminatory

enforcement” because vague laws “delegate basic policy

matters to policemen, judges, and juries for resolution

on an ad hoc and subjective basis.” Third, because

citizens will try to “steer far wider of the unlawful

zone” than necessary, vague laws “inhibit the exercise

of . . . freedoms.” Grayned v. City of Rockford, 408 U.S.

104, 108-09 (1972); citations and quotation marks

omitted; emphasis added.

Vague statutes invite abuse by enforcement

agencies – not only police officers, but particularly by

government prosecutors or private plaintiffs. See John

Calvin Jeffries, Jr., Legality, Vagueness, and the

Construction of Penal Statutes, 71 VA. L. REV. 189, 197

(1985) (“Prosecutors in this country have enormous

discretion, and their decisions are largely

unconstrained by law.”). Vagueness gives plaintiffs

and prosecutors leverage to make unfair demands of

defendants, to threaten defendants with punishment

for relatively minor infractions, or to exploit their

positions of authority for improper motives. Indeed,

because vague laws are enforced in an ad hoc and

subjective manner, they essentially give enforcement

officials “the de facto power of determining what

the . . . law in action shall be.” Henry M. Hart, Jr., The

Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS.

401,428 (1958).

Moreover, vagueness undermines the capacity of

democratic institutions to control the operations of

government. James Madison famously observed that it

would “be of little avail to the people, that the laws are

made by men of their own choice, if the laws be so

voluminous that they cannot be read, or so incoherent

that they cannot be understood; if . . . no man, who

knows what the law is to-day, can guess what it will be

to-morrow.” THE FEDERALIST NO. 62, at 381 (James

Madison) (Clinton Rossiter ed., 1961). When statutes

are so vaguely worded that the public finds them

incomprehensible, voters will not be able to predict,

understand, or discipline the conduct of government

officials, who can rationalize their arbitrary conduct by

pointing to a statute that seems to authorize their

actions in broad and imprecise terms. See Samuel W.

Buell, The Upside of Overbreadth, 83 N.Y.U.L. REV.

1491, 1554 (2008).

Courts frequently apply the vagueness principle in

the context of nuisance law. For example, in Grove

Press Inc. v. City of Philadelphia, 418 F.2d 82 (3d Cir.

1969), the Third Circuit Court of Appeals held that

Pennsylvania authorities could not use a public

nuisance theory to prohibit an allegedly obscene film.

The court acknowledged that the state could regulate

obscenity, but “the standard of regulation [may not] be

so vague and indefinite ‘that men of common

intelligence must necessarily guess at its meaning.’” Id.

at 87, quoting Connally, supra, 269 U.S. at 391. Terms

like “injury to the public,” and “unreasonableness,”

were “too elastic and amorphous a standard” to satisfy

the requirement of definiteness; such terms were so

“indefinite” that the “executive and judicial branches”

were left with “ ‘too wide a discretion in its

application.’” Id. at 88, quoting Cantwell v. Connecticut,

310 U.S. 296, 308 (1940). Accord, Rubin v. City of

Santa Monica, 823 F. Supp. 709, 713 (C.D. Cal. 1993);

Connick v. Lucky Pierre’s, 331 So. 2d 431, 434-35 (La.

1976).

2. Imposition of Retroactive and Excessive

Liability absent Proof of Causation Violates Due

Process. This Court has made clear that when, as

here, the law imposes “severe retroactive liability on a

limited class of parties that could not have anticipated

the liability, and if the extent of that liability is

substantially disproportionate to the parties’

experience,” the red flag of a due process violation is

raised. Eastern Enterprises v. Aptel, 524 U.S. 498, 501

(1998).

Whether legislatively or judicially made and

imposed, such law “is contrary to fundamental notions

of justice,” for “[t]he principle that the legal effect of

conduct should ordinarily be assessed under the law

that existed when the conduct took place has timeless

and universal human appeal.” Kaiser Aluminum &

Chem. Corp. v. Bonjorno, 494 U.S. 827, 855-856 (1990)

(Scalia, J., concurring). “Elementary considerations of

fairness dictate that individuals should have an

opportunity to know what the law is and to conform

their conduct accordingly; settled expectations should

not be lightly disrupted.” Landgraf v. USI Film Prods.,

511 U.S. 244, 265 (1994).

The opinion petitioners challenge here reaches back

in time more than 70 years to impose upon them

hundreds of millions of dollars in public nuisance

liability for conduct that was completely lawful at the

time it took place – the advertising and sale of paints

they made that contained lead pigment. There is no

way petitioners, or other potential defendants facing

future “public nuisance” liability claims could have

foreseen what has or can happen to them under the

opinion’s draconian sweep. “It presents problems of

unfairness because it . . . deprive[s] citizens of

legitimate expectations and upset[s] settled

transactions.” Eastern Enterprises v. Aptel, supra, 524

U.S. at 501.

What the opinion does is precisely what the

guarantee to due process forbids: it imposes upon three

businesses “targeted” by a retroactive interpretation

and application of law, “a justified fear that a

government once formed to protect expectations can

now destroy them. Both stability of investment and

confidence in the constitutional system . . . are secured

by due process restrictions against severe retroactive”

laws. Id. at 549 (Kennedy, J. concurring).

Due process also requires that plaintiffs prosecuting

defendants for public nuisance liability satisfy the

essential element of causation. Indeed, the basic

guarantee of due process in a civil trial is that a

defendant will not be held liable for damages without

a meaningful opportunity to present every available

defense to liability, including a defense based upon lack

of causation. See Philip Morris USA v. Williams, 549

U.S. 346, 353 (2007). Williams holds that “the

Constitution’s Due Process Clause forbids a State to

use a punitive damages award in a class action to

punish a defendant for injury it inflicts upon

nonparties.” Id. The Court explained that “a defendant

threatened with punishment for injuring a non-party

victim has no opportunity to defend against the charge

by showing . . . that the other victim was not entitled to

damages because he or she knew that smoking was

dangerous or did not rely upon the defendant’s

statements to the contrary.” Id. at 353-54.

This Court applied similar reasoning outside the

punitive damages context in Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011). There the Court relied

upon the Due Process Clause in rejecting a putative

class action where plaintiffs sought to establish a

collective right to backpay from alleged sex

discrimination, holding that the defendant was

“entitled to individualized determinations of each

employee’s eligibility for backpay.” Id. at 366; emphasis

added. The Court explained that “[b]ecause the Rules

Enabling Act forbids interpreting Rule 23 to ‘abridge,

enlarge or modify any substantive right,’ a class cannot

be certified on the premise that [the defendant] will not

be entitled to litigate its statutory defenses to

individual claims.” Id. at 367.

Likewise, Justice Scalia, sitting as a single Justice,

granted a stay of a Louisiana appellate court ruling in

a tobacco class action because that court had

“eliminated any need for respondents to prove, and

denied any opportunity for applicants to contest, that

any particular plaintiff who benefits from the judgment

(much less all of them) believed applicants’ distortions

and continued to smoke as a result.” Philip Morris USA

Inc. v. Scott, 561 U.S. 1301, 1303 (2010) (Scalia, J.).

Justice Scalia emphasized that “[t]he extent to which

class treatment may constitutionally reduce the normal

requirements of due process” by preventing the

defendant from defending individual claims based on

lack of causation ‘is an important question’ worthy of

the Court’s review.” Id. See also Ortiz v. Fibreboard

Corp., 527 U.S. 815, 845 (1999) (rejecting putative

mandatory settlement class in asbestos litigation due

to the “serious constitutional concerns that come with

any attempt to aggregate individual tort claims on a

limited fund rationale”).

In re Chevron, 109 F.3d 1016 (5th Cir. 1997)

reached the same conclusion based on similar

reasoning. In that case, a group of plaintiffs sought

damages for personal injuries, wrongful death, and

property contamination allegedly caused by the spread

of crude oil from the defendant’s waste pits to the

plaintiffs’ drinking water supply. Over defendant’s

objection, the trial court adopted a “plan” where

defendant’s liability to all the plaintiffs would be

established through a single unitary trial involving 30

bellwether plaintiffs. Id. at 1017. The Fifth Circuit

rejected the trial court’s plan on both procedural and

substantive due process grounds, holding that it

violated the defendant’s procedural due process rights

because it was “devoid of safeguards designed to ensure

that the claims against [defendant] of the

non-represented plaintiffs as they relate to liability or

causation [must be] determined in a proceeding that is

reasonably calculated to reflect the results that would

be obtained if those claims were actually tried.” Id. at

1020. And the Court held that the plan violated the

defendant’s substantive due process “based on the lack

of fundamental fairness contained in a system that

permits . . . the imposition of liability in nearly 3,000

cases based upon results of a trial of a

non-representative sample of plaintiffs.” Id.

Plaintiffs here succeeded in avoiding the causation

requirement the aforementioned authorities found

guaranteed by due process. The appellate court held

petitioners liable for a claimed injury to the public from

the legal sale and promotion of their paint 70 years ago

without providing any evidence that their conduct

caused injury to any particular individual. Instead, the

existence of lead paint inside the residences in the 10

most populous jurisdictions in California was

“presumed” and petitioners ordered to pay gargantuan

amounts into a fund for the purpose of finding these

homes and then removing any lead paint from them

App. 156-159. What Justice Scalia stated in Philip

Morris USA Inc. v. Scott, supra, 131 S. Ct. at 4 applies

with even greater force to this case: “[P]reventing

[petitioners] from defending individual claims based on

lack of causation is an important question worthy of

the Court’s review.”

C. Imposing Public Nuisance Liability Upon

Petitioners Because they “Promoted” the

Sale of their Lawful Paints through

Decades-Old Advertisements they and

Trade Associations Published Violates the

First Amendment.

The First Amendment, applicable to the states

through the due process clause of the Fourteenth

Amendment, guarantees persons the right to freedom

of expression and association. Both rights are violated

by the appellate court’s opinion.

To begin with, the opinion literally bristles with

references to “promotion” by petitioners of their paints

as the gravamen of what they did long-ago that now

subjects them to public nuisance liability. See, e.g.,

App. 2, 13, 29-30, 33, 45-48. The “basis for defendants’

liability for the public nuisance created by lead paint

is their affirmative promotion of lead paint for interior

use, not their mere manufacture and distribution of

lead paint or their failure to warn of its hazards.” App.

33; emphasis added. This “promotion” was done

through a few advertisements petitioners placed

directly with newspapers and were placed indirectly by

trade associations to which petitioners belonged.

Notably, all of these advertisements took place at least

70 years ago for paints that were then perfectly legal to

make and sell, and no advertisement expressly stated

that the paints were “safe” for human ingestion.

Indeed, the opinion makes clear its view that

“promotion of lead paint for interior residential use was

inherently misleading because it implicitly asserted

that it was safe for such use when it was not.” App. 57;

emphasis added. In other words, the appellate court

found petitioner’s failure to expressly warn in these

ads that their paints were not “safe” for human

consumption constituted a misrepresentation when

there was no legal duty to warn at that time and no

ban on making or selling paints containing lead

pigment.

But promotion though advertising the sale of one’s

lawful products that says nothing one way or the other

about its “safety” for human ingestion is protected by

the First Amendment’s guarantee to freedom of

expression. “[E]ven a communication that does no

more than propose a commercial transaction is entitled

to the coverage of the First Amendment.” See Virginia

Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 762 (1976); Accord:

Edenfield v. Fane, 507 U.S. 761, 767 (1993). “Speech

has the capacity to convey complex substance, yielding

various insights and interpretations depending upon

the identity of the listener or the reader and the

context of its transmission. . .. The complex nature of

expression is one reason why even so-called commercial

speech has become an essential part of the public

discourse the First Amendment secures.” Florida Bar

v. Went For It, Inc., 515 U.S. 618, 636 (1995) (Kennedy,

J., dissenting).

The opinion declines to extend First Amendment

protection to petitioners’ promotional advertising that

it attributes to their “creation” and “cause” of the public

nuisance. It even goes so far as to discount giving any

weight to this factor when it comes to the “public

policy” considerations that go into defining “legal

causation,” asserting that petitioners’ “lead paint

promotional advertise[ments] . . . were not entitled to

any First Amendment protections.” App. 48; emphasis

added. It dismisses those ads as “commercial speech,”

stating that “the Constitution . . . accords a lesser

protection to commercial speech than to other

constitutionally guaranteed expression.” (citing Central

Hudson Gas & Elec. Corp. v. Public Service Comm’n. Of

New York (1980) 447 U.S. 557, 562-563 (Central

Hudson).)

But Central Hudson struck down as

unconstitutional a New York law that banned any

advertisement that at the time “promote[d] the use of

electricity” by electrical utility companies. New York’s

Public Service Commission initiated the ban, which it

declared promotional advertising “intended to

stimulate the purchase of utility services,” because

such advertising was “contrary to the national policy of

conserving energy.” (Central Hudson, supra, 447 U.S.

at 559.) Here, there was never a government ban on

the use of lead pigment in paint until 1978 and that

was never followed by either a federal or California

prohibition on promotional advertising of lead paint or

any requirement that manufacturers of lead paint

disclose associated health risks from its use. The

appellate opinion holding petitioner paint companies

liable for creating or assisting in the creation of a

“public nuisance” is thus premised entirely on the

“minor force” of a few advertisements about lead paint

that took place long before the use of interior lead paint

was made illegal. App. 67.

Moreover, since Central Hudson’s distinction

between the degree of protection afforded commercial

verus noncommercial speech, the Court has moved

much closer to the position that where “government is

concerned about public health or safety, it is

constitutionally authorized to regulate or even prohibit

the actual activity itself,” but it cannot, until that

point, “achieve its regulatory goal furtively through

suppression of [advertising] information and opinion.”

Coleen Klasmeier & Martin H. Redish, Off-Label

Prescription Advertising, the FDA and the First

Amendment: A Study in the Values of Commercial

Speech Protection (2011) AM. J. OF LAW & MEDICINE

315, 340. See also City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 438 (1993) (Blackmun, J.,

concurring). Neither should government be permitted

under the Constitution to furtively accomplish that

goal by retroactively incorporating advertisements that

were completely legal to run at that time as showing

liability for public nuisance today.

As with the few ads placed directly by petitioners

promoting the sale of their paints, those placed long

ago by the two trade associations to which they

belonged cannot constitutionally be used to show

petitioners liability for creation of a public nuisance.

“Joining organizations that participate in public

debate, making contributions to them, and attending

their meetings are activities that enjoy substantial

First Amendment protection.” In re Asbestos School

Litigation, 46 F.3d 1284, 1294 (1994). “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. at 1289;

emphasis in original.

Since plaintiffs should not,

consistent with the First Amendment, be allowed to

use ads that petitioners placed in a few newspapers to

promote the sale of their legal products as evidence of

their creation of, and causation for, a public nuisance,

neither should they be able to use ads for that purpose

by trade associations to which petitioners belonged and

financially contributed.

The record lacks any evidence that petitioners’

memberships in the trade associations were for the

specific intent to further illegal aims or that the trade

associations themselves possessed unlawful goals.

Both existed to promote sales of products that were

then indisputably legal to make and to sell.

CONCLUSION

For all the aforementioned reasons, the Court

should grant the petition.

Respectfully submitted,