Petition for Writ of Certiorari — The Sherwin-Williams Company, Petitioner v. Delaware County, Pennsylvania, et al.
Supreme Court briefDec 28, 2020
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APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-3561
____________
SHERWIN-WILLIAMS COMPANY,
Appellant,
v.
COUNTY OF DELAWARE, PENNSYLVANIA;
COUNTY OF ERIE, PENNSYLVANIA; COUNTY OF
YORK, PENNSYLVANIA; JOHN P. MCBLAIN, in
his official capacity as Chairman of the County
Council of the County of Delaware, Pennsylvania;
COLLEEN P. MORRONE, in her official capacity as
Vice Chairman of the County Council of the County
of Delaware, Pennsylvania; MICHAEL CULP, in his
official capacity as member of the County Council of
the County of Delaware, Pennsylvania; KEVIN M.
MADDEN, in his official capacity as member of the
County Council of the County of Delaware,
Pennsylvania; BRIAN P. ZIDEK, in his official
capacity as member of the County Council of the
County of Delaware, Pennsylvania; DR. KYLE W.
FOUST, in his official capacity as County Council
Chairman of the Erie County Council; FIORE
LEONE, in his official capacity as County Vice
Chairman of the Erie County Council; KATHY
2a
FATICA, in her official capacity as Finance
Chairwoman and member of the Erie County
Council; CAROL J LOLL, in her official capacity as
Finance Vice Chairwoman and member of the Erie
County Council; ANDRE R. HORTON, in his official
capacity as Personnel Chairman and member of the
Erie County Council; CARL ANDERSON, III, in his
official capacity as member of the Erie County
Council; SCOTT R. RASTETTER, in his official
capacity as member of the Erie County Council;
SUSAN BYRNES, in her official capacity as
President of the Board of Commissioners for York
County, Pennsylvania; DOUG HOKE, in his official
capacity as Vice President of the Board of
Commissioners for York County, Pennsylvania;
CHRIS REILLY, in his official capacity as a member
of the Board of Commissioners for York County,
Pennsylvania; JOHN DOE COUNTIES;
JOHN DOES,
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-04517)
District Judge:
Honorable Nitza I. Quiñones Alejandro
____________
Argued June 2, 2020
Before: AMBRO, HARDIMAN, and RESTREPO,
Circuit Judges
3a
____________
JUDGMENT
____________
This cause came to be heard on the record from the
United States District Court for the Eastern District
of Pennsylvania and was argued on June 2, 2020. On
consideration whereof, it is now
ORDERED and ADJUDGED by this Court that the
District Court’s orders entered October 4, 2019 are
hereby AFFIRMED. All of the above in accordance
with the Opinion of this Court.
Costs shall be taxed against Appellant.
ATTEST:
/s/ Patricia S. Dodszuweit
Clerk
Dated: July 31, 2020
4a
OFFICE OF THE CLERK
UNITED STATES COURT OF APPEALS
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
Website: www.ca3.uscourts.gov
PATRICIA S.
DODSZUWEIT
TELEPHONE
CLERK
July 31, 2020
Anderson T. Bailey, Esq.
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Leon F. DeJulius Jr., Esq.
Jones Day
250 Vesey Street
New York, NY 10281
John E. Iole, Esq.
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Charles H. Moellenberg Jr., Esq.
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
215-597-2995
5a
William H. Pugh V, Esq.
Kane Pugh Knoell Troy & Kramer
510 Swede Street
Norristown, PA 19401
David S. Senoff, Esq.
First Law Strategy Group
121 South Broad Street
Suite 300
Philadelphia, PA 19107
Hillary B. Weinstein, Esq.
First Law Strategy Group
121 South Broad Street
Suite 300
Philadelphia, PA 19107
RE: Sherwin Williams Co v. County of Delaware, et al
Case Number: 19-3561
District Court Case Number: 2-18-cv-04517
ENTRY OF JUDGMENT
Today, July 31, 2020 the Court entered its judgment
in the above-captioned matter pursuant to Fed. R.
App. P. 36.
If you wish to seek review of the Court’s decision, you
may file a petition for rehearing. The procedures for
filing a petition for rehearing are set forth in Fed. R.
App. P. 35 and 40, 3rd Cir. LAR 35 and 40, and
summarized below.
Time for Filing:
14 days after entry of judgment.
6a
45 days after entry of judgment in a civil case if the
United States is a party.
Form Limits:
3900 words if produced by a computer, with a
certificate of compliance pursuant to Fed. R. App. P.
32(g).
15 pages if hand or type written.
Attachments:
A copy of the panel’s opinion and judgment only.
Certificate of service.
Certificate of compliance if petition is produced by a
computer.
No other attachments are permitted without first
obtaining leave from the Court.
Unless the petition specifies that the petition seeks
only panel rehearing, the petition will be construed as
requesting both panel and en banc rehearing.
Pursuant to Fed. R. App. P. 35(b)(3), if separate
petitions for panel rehearing and rehearing en banc
are submitted, they will be treated as a single
document and will be subject to the form limits as set
forth in Fed. R. App. P. 35(b)(2). If only panel
rehearing is sought, the Court’s rules do not provide
for the subsequent filing of a petition for rehearing en
banc in the event that the petition seeking only panel
rehearing is denied.
A party who is entitled to costs pursuant to
Fed.R.App.P. 39 must file an itemized and verified bill
of costs within 14 days from the entry of judgment. The
bill of costs must be submitted on the proper form
which is available on the court’s website.
A mandate will be issued at the appropriate time in
accordance with the Fed. R. App. P. 41.
7a
Please consult the Rules of the Supreme Court of the
United States regarding the timing and requirements
for filing a petition for writ of certiorari.
Very truly yours,
s/Patricia S. Dodszuweit,
Clerk
By: s/Stephanie
Case Manager
267-299-4926
8a
APPENDIX B
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-3561
____________
SHERWIN-WILLIAMS COMPANY,
Appellant
v.
COUNTY OF DELAWARE, PENNSYLVANIA;
COUNTY OF ERIE, PENNSYLVANIA; COUNTY OF
YORK, PENNSYLVANIA; JOHN P. MCBLAIN, in
his official capacity as Chairman of the County
Council of the County of Delaware, Pennsylvania;
COLLEEN P. MORRONE, in her official capacity as
Vice Chairman of the County Council of the County
of Delaware, Pennsylvania; MICHAEL CULP, in his
official capacity as member of the County Council of
the County of Delaware, Pennsylvania; KEVIN M.
MADDEN, in his official capacity as member of the
County Council of the County of Delaware,
Pennsylvania; BRIAN P. ZIDEK, in his official
capacity as member of the County Council of the
County of Delaware, Pennsylvania; DR. KYLE W.
FOUST, in his official capacity as County Council
Chairman of the Erie County Council; FIORE
LEONE, in his official capacity as County Vice
Chairman of the Erie County Council; KATHY
9a
FATICA, in her official capacity as Finance
Chairwoman and member of the Erie County
Council; CAROL J LOLL, in her official capacity as
Finance Vice Chairwoman and member of the Erie
County Council; ANDRE R. HORTON, in his official
capacity as Personnel Chairman and member of the
Erie County Council; CARL ANDERSON, III, in his
official capacity as member of the Erie County
Council; SCOTT R. RASTETTER, in his official
capacity as member of the Erie County Council;
SUSAN BYRNES, in her official capacity as
President of the Board of Commissioners for York
County, Pennsylvania; DOUG HOKE, in his official
capacity as Vice President of the Board of
Commissioners for York County, Pennsylvania;
CHRIS REILLY, in his official capacity as a member
of the Board of Commissioners for York County,
Pennsylvania; JOHN DOE COUNTIES;
JOHN DOES
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-04517)
District Judge:
Honorable Nitza I. Quiñones Alejandro
____________
Argued June 2, 2020
Before: AMBRO, HARDIMAN, and RESTREPO,
Circuit Judges
(Filed: July 31, 2020)
10a
Leon F. DeJulius, Jr. [Argued]
Jones Day
250 Vesey St.
New York, NY 10281
Anderson T. Bailey
Charles H. Moellenberg, Jr.
Jones Day
500 Grant St.
Suite 4500
Pittsburgh, PA 15219
Attorneys for Appellant Sherwin-Williams Company
David S. Senoff [Argued]
Hillary B. Weinstein
First Law Strategy Group
121 South Broad St.
Suite 300
Philadelphia, PA 19107
Attorneys for Appellees County of Delaware, et al.
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
It has been said that the best defense is a good
offense.
True to that adage, Sherwin-Williams
Company sued several Pennsylvania counties to
forestall lead-paint litigation those counties seemed
poised to file with the assistance of outside counsel
motivated by a contingent-fee agreement. The District
Court dismissed Sherwin-Williams’s complaint for
lack of Article III standing. We will affirm.
11a
I
Sherwin-Williams is an Ohio corporation that
manufactures and distributes paint. In Pennsylvania,
the company employs nearly 2,000 people in 200
stores, offices, manufacturing plants, and a research
and development facility.
In 2018, Lehigh and Montgomery Counties sued
Sherwin-Williams (and others) in state court over its
manufacture and sale of lead-based paint. The
counties pleaded a public nuisance theory of liability
and sought abatement of the nuisance caused by leadbased paint, an order enjoining “future illicit conduct”
by
Sherwin-Williams,
and
a
declaration
acknowledging the existence of a public nuisance and
Sherwin-Williams’s contribution to it. App. 273–74
(Lehigh County complaint); App. 119–21 (Montgomery
County complaint). Both counties hired the same law
firm on a contingency.
Anticipating the same
treatment from other counties, Sherwin-Williams
went on the offensive. It sued Delaware, Erie, and
York Counties, members of each county council, and
“John Doe Counties” and “John Does” in the United
States District Court for the Eastern District of
Pennsylvania to try to prevent them from suing or
hiring outside contingent-fee counsel. App. 22–23.
When Erie and York Counties responded by stating
they would not sue or hire outside counsel, SherwinWilliams dismissed its claims against them and their
councilmembers.
So this appeal concerns only
Delaware County and its councilmembers.
In its complaint, Sherwin-Williams alleged
Delaware County “retained or [is] in the process of
retaining counsel and intend[s] to sue Sherwin-
12a
Williams in various courts throughout Pennsylvania
to pay for the inspection and abatement of lead paint
in or on private housing and publicly owned buildings
and properties, including federal buildings and
properties.” App. 26 ¶ 1. It claimed the County, by
merely filing suit, will violate its constitutional rights.
Sherwin-Williams also alleged “[i]t is likely that the
fee agreement between [Delaware County] and the
outside trial lawyers [is] or will be substantively
similar to an agreement struck by the same attorneys
and Lehigh County to pursue what appears to be
identical litigation.” App. 47 ¶ 65. And it asserted
that, by forming (or planning to form) this agreement
with outside counsel, “the Count[y] ha[s] effectively
and impermissibly delegated [its] exercise of police
power to the private trial attorneys.” Id. Based on
these allegations, Sherwin-Williams raised three
claims under 42 U.S.C. § 1983.
In Count I, the company pleaded a First
Amendment violation, seeking declaratory and
injunctive relief. It asked the District Court to prevent
the County from trying to hold Sherwin-Williams
liable for “(i) its membership in [trade associations];
(ii) the activities of the [trade associations], including
those that Sherwin-Williams did not join, fund, or
approve; (iii) Sherwin-Williams’ purported petitioning
of federal, state and local governments; and (iv)
Sherwin-Williams’ commercial speech.” App. 49–50
¶ 73. To support this claim, the company alleged it
“has reconsidered and continues to question its
membership in various trade organizations and its
petitioning to the government on any issues.” App. 33
¶ 14. And it claimed that the County’s potential
13a
lawsuit “impermissibly chills
associational activities.” Id.
its
speech
and
In Count II, Sherwin-Williams sought declaratory
and injunctive relief to preclude the County’s potential
lawsuit. It claimed the County’s (unarticulated) public
nuisance theory would seek to impose liability “(i) that
is grossly disproportionate; (ii) arbitrary; (iii)
impermissibly retroactive; (iv) without fair notice; (v)
impermissibly vague; and (vi) after an unexplainable,
prejudicial and extraordinarily long delay, in violation
of the Due Process Clause.” App. 52 ¶ 83.
Finally, in Count III, the company alleged the
County’s contingent-fee agreement (or possible future
agreement) with outside counsel violates the Due
Process Clause because “[t]he Constitution prohibits
vesting the prosecutorial function in someone who has
a financial interest in using the government’s police
power to hold a defendant liable.” App. 56 ¶ 94.
Sherwin-Williams asked for declaratory and
injunctive relief before the County files suit because
“once the[] lawsuit[] [is] filed, the Count[y’s] financial
arrangement with trial attorneys will unlawfully
interfere with [its] decision-making, including altering
[its] positions or dissuading [it] from seeking
appropriate resolutions to the alleged health hazards
with which [it is] concerned.” App. 57 ¶ 96.
Delaware County moved to dismiss the complaint
and Sherwin-Williams moved for partial summary
judgment on its due process claim related to the
County’s agreement with outside counsel. SherwinWilliams Co. v. County of Delaware, 2019 WL
4917154, at *1 (E.D. Pa. 2019). The District Court
granted the County’s motion to dismiss, holding
14a
Sherwin-Williams lacked Article III standing because
its “complaint fail[ed] to state facts sufficient to show
an actual case [or] controversy.” Sherwin-Williams
Co., 2019 WL 4917154, at *4. The Court then denied
Sherwin-Williams’s motion for partial summary
judgment as moot.
Because Sherwin-Williams sought only declaratory
and injunctive relief, the District Court construed its
claims as arising under the Declaratory Judgment Act
and explained that a “substantial controversy” must
exist between the parties for a plaintiff to sustain a
claim under the Act and Article III of the Constitution.
Sherwin-Williams Co., 2019 WL 4917154, at *2. The
Court observed that “[t]he entirety of Plaintiff’s
complaint reads like a request for an advisory opinion
regarding potential affirmative defenses to a state law
case that has not yet been, and may never be, filed.”
Id. at *4. It therefore concluded Sherwin-Williams
failed to plead an injury in fact or a ripe case or
controversy because the alleged harms hinged on the
County actually filing suit. Id. at *3–4.
Sherwin-Williams filed this timely appeal.1
II
Article III standing requires “(1) an injury-in-fact,
(2) a sufficient causal connection between the injury
and the conduct complained of, and (3) a likelihood
that the injury will be redressed by a favorable
1 The District Court had jurisdiction to determine its own
jurisdiction. See, e.g., In re Lipitor Antitrust Litig., 855 F.3d 126,
142 (3d Cir. 2017). We have jurisdiction under 28 U.S.C. § 1291
to review the District Court’s orders. We review Rule 12(b)(1)
dismissals de novo. Batchelor v. Rose Tree Media Sch. Dist., 759
F.3d 266, 271 (3d Cir. 2014).
15a
decision.” Finkelman v. Nat’l Football League, 810
F.3d 187, 193 (3d Cir. 2016). The plaintiff bears the
burden of establishing standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). The District Court
dismissed Sherwin-Williams’s complaint because the
company failed to plead actual injury. We agree.2
Injury in fact requires “the invasion of a concrete
and particularized legally protected interest resulting
in harm that is actual or imminent, not conjectural or
hypothetical.” Finkelman, 810 F.3d at 193 (citation
and internal quotation marks omitted). “A harm is
‘actual or imminent’ rather than ‘conjectural or
hypothetical’ where it is presently or actually
occurring, or is sufficiently imminent. . . . [P]laintiffs
relying on claims of imminent harm must demonstrate
that they face a realistic danger of sustaining a direct
injury from the conduct of which they complain.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278
(3d Cir. 2014) (citation omitted). “Allegations of
possible future injury do not satisfy the requirements
of Art. III. A threatened injury must be ‘certainly
impending’ to constitute injury in fact.” Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990) (citation omitted).
2 Sherwin-Williams argues the District Court’s order “cannot
stand” based, in part, on two particular errors. Sherwin-Williams
Br. 34. First, the District Court relied on the dissenting opinion
in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), as if
it were the majority opinion. Sherwin-Williams Co., 2019 WL
4917154, at *4. Second, in addressing whether Sherwin-Williams
had Article III standing, the Court erroneously relied on Pub.
Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237 (1952). In
Wycoff Co., the Supreme Court addressed statutory federal
question jurisdiction, not Article III standing. These errors do
not require reversal because the District Court’s holding is well
supported by applicable law.
16a
And a party seeking equitable relief for a prospective
injury, like Sherwin-Williams here, must show a
“likelihood of substantial and immediate irreparable
injury” to establish standing. O’Shea v. Littleton, 414
U.S. 488, 502 (1974).
Declaratory judgments are often forward-looking,
but they are “limited to cases and controversies in the
constitutional sense.” Wyatt, Virgin Islands, Inc. v.
Gov’t of V.I., 385 F.3d 801, 805 (3d Cir. 2004) (citing
Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300
U.S. 227, 240 (1937)). We may review only “concrete
legal issues, presented in actual cases, not
abstractions . . . . This is as true of declaratory
judgments as any other field.” Golden v. Zwickler, 394
U.S. 103, 108 (1969) (quoting United Public Workers of
America (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947))
(internal quotation marks omitted).
Sherwin-Williams asserts—and the County does
not dispute—that it leveled a “facial” attack on the
District Court’s jurisdiction. So “we accept [SherwinWilliams’s] well-pleaded factual allegations as true
and draw all reasonable inferences from those
allegations in [its] favor.” In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d
Cir. 2017). Although a complaint need only be “a short
and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it
“must contain sufficient factual matter . . . to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
17a
III
We first consider whether Sherwin-Williams
established Article III standing by sufficiently
pleading injury in fact.
A
In Counts I and II of its complaint, SherwinWilliams failed to allege an existing injury or one that
was “certainly impending” as a result of the
anticipated litigation from Delaware County. See
Whitmore, 495 U.S. at 158. The company did not plead
an existing First Amendment injury based on the
County’s potential lawsuit because “generalized
allegations” of chilled speech cannot establish an
existing injury. See Pa. Family Inst. v. Black, 489 F.3d
156, 166 n.10 (3d Cir. 2007). Instead, an allegation
that certain conduct has (or will have) a chilling effect
on one’s speech must claim a “specific present objective
harm or a threat of specific future harm.” Laird v.
Tatum, 408 U.S. 1, 13–14 (1972). Sherwin-Williams’s
claim that the specter of the County’s potential lawsuit
has caused it to “reconsider[] and . . . question its
membership in various trade organizations and its
petitioning to the government on any issues,” App. 33
¶ 14, is a “generalized allegation[]” insufficient to
satisfy Article III’s requirements. Pa. Family Inst.,
489 F.3d at 166 n.10.
Sherwin-Williams also claims it sufficiently alleged
an imminent injury in Counts I and II based on a
potential lawsuit by the County. But even if it could
show that a lawsuit were certainly impending, it did
not establish that such a lawsuit would cause a
concrete injury to its constitutional rights. The
company’s constitutional claims in Counts I and II rest
18a
on what it anticipates the County might allege in a
hypothetical lawsuit. Such speculation cannot satisfy
Article III’s standing requirements. See Aetna Life
Ins. Co., 300 U.S. at 241 (explaining federal courts
may not issue “opinion[s] advising what the law would
be upon a hypothetical state of facts”). Specifically,
Sherwin-Williams asks us to assume not only that the
County will sue, but also its theory of liability, its
litigation tactics, and that the County will prevail.
App. 49–52, ¶¶ 73–80. The County may proceed as
Sherwin-Williams predicts. Or it may not. And who
knows whether the County would win?
That
uncertainty—and all of the contingencies that go along
with it—expose Sherwin-Williams’s inability to allege
an existing injury or one that is “certainly impending.”
See Whitmore, 495 U.S. at 155, 158.
Moreover, Sherwin-Williams failed to show a
“likelihood of substantial and immediate irreparable
injury” absent declaratory and injunctive relief. See
O’Shea, 414 U.S. at 502. Any injury to SherwinWilliams’s First Amendment or due process rights
would not be irreparable. If the County sues, SherwinWilliams can raise those claims as affirmative
defenses in state court. See Sherwin-Williams Co. v.
City of Columbus, 2008 WL 839788, at *3 (S.D. Ohio
2008). And the company failed to explain why such
defenses would be inadequate. So any harm to its
constitutional rights would be neither “substantial”
nor “irreparable.”
Sherwin-Williams’s
preemptive
suit
differs
significantly from another pre-enforcement case in
which we found Article III standing. In Khodara
Envt’l, Inc. v. Blakey, 376 F.3d 187, 194 (3d Cir. 2004),
we considered whether a federal statute precluded
19a
development of a landfill. Instead of developing the
landfill first and risking enforcement actions by the
government, the plaintiff sought a judgment declaring
its rights under federal law. We held that the plaintiff
had standing to pursue declaratory relief before the
government took steps to block the landfill’s
development because “it [was] apparent that it would
[have been] inordinately expensive and impractical
from a business standpoint” to force the plaintiff to act
first and litigate later. Id. And it was undisputed
that, if the plaintiff received a favorable ruling, it
would develop the landfill. Id.
Here, by contrast, Sherwin-Williams is not seeking
clarification of its rights so it can take some
affirmative business action, and any conduct for which
Delaware County might sue has already occurred.
Sherwin-Williams is instead trying to preempt the
County’s supposedly imminent lawsuit with
affirmative defenses it could raise in response to any
suit that might be filed. And unlike the plaintiff in
Blakey, Sherwin-Williams has failed to show that
defending against a lawsuit (rather than pursuing this
one) would be “inordinately expensive and
impractical.” Id.
For these reasons, we hold that Sherwin-Williams
lacks standing to pursue Counts I and II of its
complaint.
B
Sherwin-Williams also failed to plead an existing or
imminent injury sufficient to establish Article III
20a
standing for its claim in Count III.3 There, the
company claimed it suffered (and continues to suffer)
an injury to its due process rights because the County
formed a contingent-fee agreement with outside
counsel. In particular, it claimed this arrangement
“violate[s its] due process right to have a financially
disinterested public official prosecuting a public
nuisance suit brought on behalf of the public.” App. 56
¶ 93.
Because Delaware County did not execute its
current agreement with outside counsel until more
than a week after Sherwin-Williams filed its
complaint, the company did not explain how the
specific terms of that engagement letter infringe its
due process rights. Instead, it assumed the County’s
agreement would mirror other counties’ agreements
and attached Lehigh County’s engagement letter to its
complaint. That assumption turned out to be wrong—
in its engagement letter, Delaware County “retain[ed]
complete control over the course and conduct of the
litigation.” See App. 226 (also explaining that the
County has “real (not illusory) control over the
litigation”). Sherwin-Williams cannot establish an
existing injury based on that agreement’s specific
terms.
3 The District Court did not specifically address whether
Sherwin-Williams had standing to pursue this claim. The
company argues this “requires reversal,” Sherwin-Williams Br.
18, but because this is a question of law we can resolve it in the
first instance. See Wujick v. Dale & Dale, Inc., 43 F.3d 790, 792–
93 (3d Cir. 1994) (addressing, for the first time on appeal,
whether the district court had subject matter jurisdiction).
21a
That leaves Sherwin-Williams’s argument that the
contingent-fee arrangement will nonetheless cause
some future injury by tainting an investigation and
lawsuit by the County. The company alleged: “[O]nce
these lawsuits are filed, the Counties’ financial
arrangement with trial attorneys will unlawfully
interfere with the Counties’ decision-making,
including altering their positions or dissuading them
from seeking appropriate resolutions to the alleged
health hazards with which they are concerned.” App.
57 ¶ 96. The actual terms of the agreement with
outside counsel belie this claim. Delaware County
retained full control over potential litigation and does
not stand to benefit from the contingent-fee
arrangement, so Sherwin-Williams’s claims of
impending injury were (and are) unfounded. It also
argues its “rights can be protected only by
determining” this issue before the County sues, id.,
but it fails to show an irreparable injury justifying presuit relief. See O’Shea, 414 U.S. at 502.
Like the company’s other claims, Count III assumes
too much. Sherwin-Williams will suffer no harm if the
County decides not to sue. And if it does sue, an injury
may arise only if the County violates its own
agreement and cedes control to outside counsel. That
injury, if any, is neither existing nor certainly
impending. So it cannot satisfy the requirements for
Article III standing.
IV
Even if Sherwin-Williams could satisfy Article III’s
injury-in-fact requirement, its claims would not be
ripe for review. “At its core, ripeness works ‘to
determine whether a party has brought an action
22a
prematurely . . . and counsels abstention until such a
time as a dispute is sufficiently concrete to satisfy the
constitutional and prudential requirements of the
doctrine.’” Plains All Am. Pipeline L.P. v. Cook, 866
F.3d 534, 539 (3d Cir. 2017) (quoting Peachlum v. City
of York, 333 F.3d 429, 433 (3d Cir. 2003)). “A dispute
is not ripe for judicial determination if it rests upon
contingent future events that may not occur as
anticipated, or indeed may not occur at all. Claims
based merely upon assumed potential invasions of
rights are not enough to warrant judicial
intervention.” Wyatt, 385 F.3d at 806 (internal
citations and quotation marks omitted).
Sherwin-Williams insists its claims are ripe by
citing our statement that a “party seeking declaratory
relief need not wait until the harm has actually
occurred to bring the action.” Travelers Ins. Co. v.
Obusek, 72 F.3d 1148, 1154 (3d Cir. 1995). But it
ignores the requirement that a party “must
demonstrate that the probability of that future event
occurring is real and substantial, ‘of sufficient
immediacy and reality to warrant the issuance of a
declaratory judgment.’” Id. (quoting Salvation Army
v. Dep’t of Cmty. Affairs, 919 F.2d 183, 192 (3d Cir.
1990)). And it fails to overcome our holding that “[a]
dispute is not ripe for judicial determination ‘if it rests
upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.’” Wyatt,
385 F.3d at 806 (quoting Texas v. United States, 523
U.S. 296, 300 (1998)). Each of Sherwin-Williams’s
claims fits that description.
In Wyatt, we held an employer’s claims for
declaratory relief against the government of the Virgin
Islands were not ripe because, although the
23a
government issued cease-and-desist letters telling the
employer to stop certain business practices and the
Attorney General of the Virgin Islands issued an
opinion letter declaring the case “ripe for injunctive
and/or declaratory relief,” the government had taken
no formal steps to proscribe the employer’s conduct.
Id. at 803–04. Delaware County has taken even fewer
steps than the government had taken in Wyatt. In
fact, according to Sherwin-Williams’s complaint, the
only action Delaware County has taken towards filing
suit is hiring outside counsel. The County might sue
Sherwin-Williams, but it might not. It might advance
the same arguments as other counties, but it might
not. The uncertainty surrounding these fundamental
questions renders these claims unfit for judicial
resolution. Wyatt, 385 F.3d at 806.
In short, Sherwin-Williams’s claims are not ripe
largely for the same reasons they fail to satisfy the
injury-in-fact requirement—they require speculation
about whether the County will sue and what claims it
would raise.
*
*
*
We agree with the District Court’s determination
that Sherwin-Williams lacked Article III standing.
The harms it alleges are hypothetical and conjectural.
And any harm it may suffer as a result of a future
lawsuit by Delaware County is redressable in the
context of that case, should it ever occur. We will
therefore affirm the orders of the District Court.4
4 Because we will affirm the dismissal order, we will also
affirm the order denying partial summary judgment as moot.
24a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
SHERWIN-WILLIAMS
COMPANY
Plaintiff
v.
COUNTY OF
DELAWARE,
PENNSYLVANIA, et al.
Defendants
: CIVIL ACTION
:
: NO. 18-4517
:
:
:
:
:
:
:
:
ORDER
AND NOW, this 4th day of October 2019, in light of
this Court’s Order of this day dismissing this matter
for lack of subject matter jurisdiction, it is hereby
ORDERED that Plaintiff’s motion for partial
summary judgment, [ECF 17], is DENIED, as moot.
BY THE COURT:
/s/ Nitza I. Quiñones Alejandro
NITZA I. QUIÑONES ALEJANDRO
Judge, United States District Court
25a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
THE SHERWINWILLIAMS COMPANY
Plaintiff
v.
COUNTY OF
DELAWARE,
PENNSYLVANIA, et al.
Defendants
NITZA I. QUIÑONES
ALEJANDRO, J.
: CIVIL ACTION
:
: NO. 18-4517
:
:
:
:
:
:
:
:
OCTOBER 4, 2019
MEMORANDUM OPINION
INTRODUCTION
Plaintiff
The
Sherwin-Williams
Company
(“Plaintiff”) brought this action against the County of
Delaware (the “County”) and five members of the
Delaware County Council, identified as John P.
McBlain, Colleen P. Morrone, Michael Culp, Kevin M.
Madden, and Brian Zidek (together, the “Defendant
Public Officials”) (collectively with the County,
“Defendants”), pursuant to the Declaratory Judgment
Act, 28 U.S.C. § 2201(a). Plaintiff seeks declarations
that “threatened,” future lawsuits by the County
would violate Plaintiff’s various constitutional rights.
26a
Defendants have moved to dismiss this declaratory
judgment action pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(1), on the basis that no actual
case or controversy exists and, therefore, this Court
does not have subject-matter jurisdiction. The issues
raised in Defendants’ motion have been fully briefed
and are ripe for consideration. For the reasons stated
herein, Defendants’ motion to dismiss is granted.
BACKGROUND
Though Plaintiff’s complaint in this matter contains
nearly 100 paragraphs of allegations, for purposes of
Defendants’ underlying motion to dismiss for lack of
subject-matter jurisdiction, the facts can be
summarized as follows:
Plaintiff alleges that
information contained in public filings, statements,
and media reports has revealed that the County,
acting through the Defendant Public Officials, has
either retained, or is in the process of retaining counsel
in order to potentially sue Plaintiff in various courts
throughout Pennsylvania to pay for the inspection and
abatement of lead paint in or on private housing and
publicly owned buildings and properties. In support of
its claims, Plaintiff contends that these “threatened
lawsuits” and/or “anticipated claims of liability” will
violate Plaintiff’s constitutional rights. Based on
these purported threats of litigation, Plaintiff seeks
declarations that the County’s threatened claims
violate Plaintiff’s First Amendment and Due Process
rights.
Notably, the County’s purported threat to bring a
lawsuit against Plaintiff has not materialized.
Notwithstanding the absence of any pending
litigation, Plaintiff commenced this declaratory
27a
judgment action seeking to effectively preclude the
County from bringing the threatened lawsuit.
LEGAL STANDARD
Rule 12(b)(1) permits a defendant to challenge a
civil action for lack of subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The burden of establishing
subject matter jurisdiction rests with the party
asserting its existence. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006). When challenging
a court’s subject matter jurisdiction, a party may do so
by way of either a facial or a factual attack. See
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249,
257 (3d Cir. 2009). A facial attack “concerns ‘an
alleged pleading deficiency’ whereas a factual attack
concerns ‘the actual failure of [a plaintiff’s] claims to
comport
[factually]
with
the
jurisdictional
prerequisites.’” CNA v. United States, 535 F.3d 132,
139 (3d Cir. 2008) (citations omitted). “In reviewing a
facial attack, the court must only consider the
allegations of the complaint and documents referenced
therein and attached thereto, in the light most
favorable to the plaintiff.” Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). Here,
Defendants have only made a facial attack.
DISCUSSION
In their underlying motion to dismiss, Defendants
contend, inter alia, that there is no “case or
controversy” under Article III of the Constitution and,
thus, this Court lacks subject matter jurisdiction.
Specifically, Defendants argue that Plaintiff has failed
to state the requisite particularized, concrete injury in
fact that is required to show an actual case or
28a
controversy sufficient to satisfy its burden to invoke
federal jurisdiction. This Court agrees.
The Declaratory Judgment Act (“DJA”), 28 U.S.C.
§ 2201(a), the statute under which Plaintiff brings its
current claims, “is an enabling act, which confers
discretion on the courts rather than an absolute right
on a litigant.” Wilton v. Seven Falls Co., 515 U.S. 277,
287 (1995) (quoting Public Serv. Comm’n of Utah v.
Wycoff Co., 344 U.S. 237, 241 (1952)).
“The
Declaratory Judgment Act has been understood to
confer on federal courts unique and substantial
discretion in deciding whether to declare the rights of
litigants.” Wilton, 515 U.S. at 286. “In the declaratory
judgment context, the normal principle that federal
courts should adjudicate claims within their
jurisdiction yields to considerations of practicality and
wise judicial administration.” Id. at 289.
The DJA permits a district court, “[i]n a case of
actual controversy within its jurisdiction,” to “declare
the rights and other legal relations of any interested
party seeking such declaration.” 28 U.S.C. § 2201(a).
Before granting or denying such relief, a court must
determine whether an “actual controversy” exists
within the meaning of the DJA. See id.; Spivey Co. v.
Travelers Ins. Cos., 407 F. Supp. 916, 917 (E.D. Pa.
1976). Though there is no precise definition as to what
constitutes an “actual controversy” for purposes of
both the DJA and Article III of the Constitution, the
facts alleged in a complaint must present a substantial
controversy between adverse parties of sufficient
immediacy and reality as to warrant a declaratory
judgment. Maryland Cas. Co. v. Pacific Coal & Oil
Co., 312 U.S. 270, 273 (1941).
29a
Federal courts are limited by Article III of the U.S.
Constitution to consider only actual “cases or
controversies.” See Whitmore v. Arkansas, 495 U.S.
149, 154–55 (1990). The “core” of the “case-orcontroversy requirement” is the “triad of injury in fact,
causation, and redressability.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 103 (1998). This core
“serves to identify those disputes which are
appropriately resolved through the judicial process.”
Whitmore, 495 U.S. at 155. To meet the injury-in-fact
requirement, a plaintiff must establish “an invasion of
a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal citations
omitted). To meet the causation requirement, a
plaintiff must establish “a causal connection between
the injury and the conduct complained of.” Id. Finally,
to meet the redressability requirement, a plaintiff
must establish that it is “‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Id. at 561 (internal citation
omitted).
If a litigant does not meet these
requirements, the case must be dismissed for lack of
subject matter jurisdiction. See Steel Co., 523 U.S. at
88–89. This is true even when a plaintiff seeks a
declaratory judgment. See, e.g., St. Thomas–St. John
Hotel & Tourism Ass’n, Inc. v. Gov’t of the U.S. Virgin
Islands, 218 F.3d 232, 240 (3d Cir. 2000) (“A
declaratory judgment . . . can issue only when the
constitutional standing requirements of a ‘case’ or
‘controversy’ are met.”). Importantly, “[t]he party
invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561.
30a
Interrelated with the issue of what constitutes a
“case and actual controversy” is the ripeness doctrine.
Wyatt, Virgin Islands, Inc. v. Gov’t of the Virgin
Islands, 385 F.3d 801, 806 (3d Cir. 2004). The Court
of Appeals for the Third Circuit (“Third Circuit”)
described the ripeness doctrine as follows:
In determining whether a dispute has matured to
a point to require judicial adjudication, courts
must consider the fitness of the issues for judicial
decision and the hardship to the parties of
withholding court consideration. A dispute is not
ripe for judicial determination if it rests upon
contingent future events that may not occur as
anticipated, or indeed may not occur at all.
Claims based merely upon assumed potential
invasions of rights are not enough to warrant
judicial intervention.
Id. at 806 (internal quotations and citations omitted).
Here, Defendants argue, and this Court agrees, that
Plaintiff has not articulated a particularized, concrete
injury in fact for purposes of demonstrating an actual
case or controversy. Indeed, each of Plaintiff’s claims
for declaratory relief is dependent on some future,
contingent act by Defendants, i.e., the potential filing
of a “threatened” lawsuit by the County. Specifically,
each count of the complaint seeks a declaration that
the County’s “threatened” potential prosecution of its
claims will violate Plaintiff’s various constitutional
rights. As such, the purported dispute between
Plaintiff and Defendants “is contingent upon events
that may not occur at all or may occur differently than
anticipated.”
Wyatt, 385 F.3d at 808 (citation
omitted). For this reason, there is no actual case or
31a
controversy. Thus, this matter, as pled, is not ripe for
review.
Defendants also seek dismissal of Plaintiff’s
complaint on the basis that this Court does not have
jurisdiction over declaratory actions that seek to
adjudicate claims that arise as defenses to potential
state court lawsuits. According to Defendants, the
federal claims raised by Plaintiff are merely defenses
to the County’s potential future claims that can be
raised in state court, if and when any such claims are
made. In support of this argument, Defendants rely
on the Supreme Court’s decision in Pub. Serv. Comm’n
v. Wycoff, 344 U.S. 237 (1952), in which the Court held:
Where the complaint in an action for declaratory
judgment seeks in essence to assert a defense to
an impending or threatened state court action, it
is the character of the threatened action, and not
of the defense, which will determine whether
there is federal-question jurisdiction in the
District Court. If the cause of action, which the
declaratory defendant threatens to assert, does
not involve a claim under federal law, it is
doubtful if a federal court may entertain an action
for a declaratory judgment establishing a defense
to that claim. This is dubious even though the
declaratory complaint sets forth a claim of federal
right, if that right is in reality in the nature of a
defense to a threatened cause of action. Federal
courts will not seize litigations from state courts
merely because one, normally a defendant, goes
to federal court to begin his federal-law defense
before the state court begins the case under state
law . . . .
32a
Id. at 248 (citations omitted); see also Allegheny
Airlines, Inc. v. Pa. Pub. Util. Comm’n, 465 F.2d 237,
241 (3d Cir. 1972).
This Court agrees with Defendants’ argument. The
entirety of Plaintiff’s complaint reads like a request for
an advisory opinion regarding potential affirmative
defenses to a state law case that has not yet been, and
may never be, filed. Plaintiff has not identified any
recognized principle of law that permits it to
anticipatorily immunize itself against potential state
court litigation by bringing a case under the DJA. See,
e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
143 (2007) (“[T]he Declaratory Judgment Act does not
allow federal courts to give advisory rulings on the
potential success of an affirmative defense before a
cause of action has even accrued.”) (citing Calderon v.
Ashmus, 523 U.S. 740, 747 (1998) (dismissing a case
that “attempt[ed] to gain a litigation advantage by
obtaining an advance ruling on an affirmative
defense.”)). Again, the viability of Plaintiff’s claims is
dependent on events that have not yet occurred.
Moreover, this Court opines that Plaintiff’s claims are
nothing more than anticipated defenses to anticipated,
but not yet filed, state law claims. Under these
circumstances, this Court lacks subject matter
jurisdiction.
CONCLUSION
For the reasons stated herein, Plaintiff’s complaint
fails to state facts sufficient to show an actual case and
controversy. As such, Defendants’ motion to dismiss
is granted, and this matter is dismissed for lack of
subject matter jurisdiction. An Order consistent with
this Memorandum Opinion follows.
33a
NITZA I. QUIÑONES ALEJANDRO, J
34a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
SHERWIN-WILLIAMS
COMPANY
Plaintiff
v.
COUNTY OF
DELAWARE,
PENNSYLVANIA, et al.
Defendants
: CIVIL ACTION
:
: NO. 18-4517
:
:
:
:
:
:
:
:
ORDER
AND NOW, this 4th day of October 2019, upon
consideration of Defendants’ motion to dismiss, [ECF
14], Plaintiff’s opposition thereto, [ECF 18],
Defendants’ reply, [ECF 20], Defendants’ notice of
supplemental authority, [ECF 21], Plaintiff’s response
thereto, [ECF 22], and the allegations contained in the
complaint, [ECF 1], it is hereby ORDERED that, for
the reasons set forth in the accompanying
Memorandum Opinion, the motion to dismiss is
GRANTED, and this matter is dismissed for lack of
subject-matter jurisdiction.
The Clerk of Court is directed to mark this matter
closed.
35a
BY THE COURT:
/s/ Nitza I. Quiñones Alejandro
NITZA I. QUIÑONES ALEJANDRO
Judge, United States District Court
36a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
CASE MANAGEMENT TRACK
DESIGNATION FORM
The Sherwin-Williams
Company
v.
County of Delaware, PA,
et. al.
:
:
:
:
:
:
CIVIL ACTION
NO.
In accordance with the Civil Justice Expense and
Delay Reduction Plan of this court, counsel for
plaintiff shall complete a Case Management Track
Designation Form in all civil cases at the time of filing
the complaint and serve a copy on all defendants. (See
§ 1:03 of the plan set forth on the reverse side of this
form.) In the event that a defendant does not agree
with the plaintiff regarding said designation, that
defendant shall, with its first appearance, submit to
the clerk of court and serve on the plaintiff and all
other parties, a Case Management Track Designation
Form specifying the track to which that defendant
believes the case should be assigned.
37a
SELECT ONE OF THE FOLLOWING CASE
MANAGEMENT TRACKS:
(a) Habeas Corpus – Cases brought under 28
U.S.C. § 2241 through § 2255.
( )
(b) Social Security – Cases requesting review
of a decision of the Secretary of Health
and Human Services denying plaintiff
Social Security Benefits.
( )
(c)
Arbitration – Cases required to be
designated for arbitration under Local
Civil Rule 53.2.
( )
(d) Asbestos – Cases involving claims for
personal injury or property damage from
exposure to asbestos.
( )
(e) Special Management – Cases that do not
fall into tracks (a) through (d) that are
commonly referred to as complex and that
need special or intense management by
the court. (See reverse side of this form
for a detailed explanation of special
management cases.)
( )
(f)
(X)
Standard Management – Cases that do
not fall into any one of the other tracks.
38a
October 22,
2018
William H.
Pugh, V., Esq.
Date
Attorney-atlaw
267-234-1330
Telephone
610-275-2018
FAX Number
The SherwinWilliams
Company
Attorney for
WPugh5@kane
pugh.com
Address
39a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
THE SHERWINWILLIAMS COMPANY,
Plaintiff,
v.
COUNTY OF DELAWARE,
PENNSYLVANIA;
ERIE
COUNTY,
PENNSYLVANIA;
COUNTY
OF
YORK,
PENNSYLVANIA; JOHN P.
McBLAIN, in his official
capacity as Chairman of the
County Council of the
County
of
Delaware,
Pennsylvania; COLLEEN P.
MORRONE, in her official
capacity as Vice Chairman of
the County Council of the
County
of
Delaware,
Pennsylvania;
MICHAEL
CULP, in his official capacity
as Member of the County
Council of the County of
Delaware,
Pennsylvania;
KEVIN M. MADDEN, in his
official capacity as Member
of the County Council of the
County
of
Delaware,
Pennsylvania; BRAIN P.
ZIDEK, in his official
capacity as Member of the
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
COMPLAINT
Civil Action
No. _______
Judge _________
40a
County Council of the
County
of
Delaware,
Pennsylvania; DR. KYLE W.
FOUST, in his official
capacity as County Council
Chairman of the Erie County
Council; FIORE LEONE, in
his official capacity as
Council Vice Chairman of
the Erie County Council;
KATHY FATICA, in her
official capacity as Finance
Chairwoman and Member of
the Erie County Council;
CAROL J. LOLL, in her
official capacity as Finance
Vice
Chairwoman
and
Member of the Erie County
Council;
ANDRE
R.
HORTON, in his official
capacity
as
Personnel
Chairman and Member of
the Erie County Council;
CARL ANDERSON III, in
his official capacity as
Member of the Erie County
Council;
SCOTT
R.
RASTETTER, in his official
capacity as Member of the
Erie
County
Council;
SUSAN BYRNES, in her
official capacity as President
of
the
Board
of
Commissioners for York
41a
County,
Pennsylvania;
DOUG HOKE, in his official
capacity as Vice President of
the Board of Commissioners
for
York
County,
Pennsylvania;
CHRIS
REILLY, in his official
capacity as a Member of the
Board of Commissioners for
York County, Pennsylvania;
JOHN DOE COUNTIES;
and JOHN DOES,
Defendants.
NATURE OF THE CASE
1. The
Sherwin-Williams
Company
seeks
injunctive and declaratory relief to prevent the
unconstitutional chilling and violation of its rights
under the First Amendment and Due Process Clause
of the United States Constitution and to declare its
rights, obligations, duties, and liabilities in connection
with a controversy that has arisen between it and a
number of counties and public officials in
Pennsylvania. On information and belief based on
filings, public resolutions, statements, and media
reports, the defendant Counties, acting through the
defendant public officials, have retained or are in the
process of retaining counsel and intend to sue
Sherwin-Williams in various courts throughout
Pennsylvania to pay for the inspection and abatement
of lead paint in or on private housing and publicly
owned buildings and properties, including federal
buildings and properties. Sherwin-Williams believes
that these well-intentioned counties and public
officials have been misled by contingency-fee trial
42a
lawyers who are acting pursuant to a common strategy
to stir up litigation for their own gain across the
Commonwealth in flagrant disregard of SherwinWilliams’ constitutional rights. In fact, by providing
inaccurate and incomplete information on the facts
and the law, these lawyers have already convinced
Montgomery and Lehigh counties to file suits against
Sherwin-Williams and certain other former
manufacturers of lead paints and pigments. The
constitutional rights at stake immediately affect the
ability of manufacturers to promote their products
individually and through trade associations.
2. Sherwin-Williams’ constitutionally-protected
rights are at risk now. The threatened lawsuits will
assert a new and overreaching theory of public
nuisance basing liability on Sherwin-Williams’
constitutionally-protected speech and right of
association. The threatened lawsuits unlawfully chill
Sherwin-Williams’ First Amendment rights to engage
in commercial speech, to associate with others in trade
associations, to petition the government, and to speak
on public issues.
3. Further adding to the unlawfulness and
arbitrariness of the threatened actions, the Counties,
following a common strategy of their outside counsel,
will contend that they need not prove causation by
identifying any person who was actually harmed by a
Sherwin-Williams’ product. Moreover, in conflict with
established Pennsylvania law, they will act in the
absence of a public right and not put any responsibility
on property owners, the sole persons who have had
control over the paint on their properties as well as the
sole ability to maintain products that were sold over a
half of a century ago and that have outlived their
43a
useful life. The Counties retroactively seek to apply
new legal standards that did not exist at the time
Sherwin-Williams acted decades ago and that are in
conflict with past and current statutes, regulations,
and common law. In addition, at the time SherwinWilliams was participating in trade associations and
speaking on the sale of lawful products decades ago, it
was scientifically impossible to have known about the
harms allegedly at issue today—minute levels of lead
in the blood stream. The Counties are attempting to
apply today’s medical knowledge and standards to
Sherwin-Williams’ conduct that occurred over
50 years ago. Therefore, the Counties’ anticipated
claims of liability would be impermissibly retroactive,
arbitrary, vague, and prejudicially delayed in violation
of due process of law. For this reason, too, the federal
constitutional rights at stake are of concern to
numerous manufacturers and promoters of products
lawfully made and sold decades ago.
4. The Counties and their officers, moreover, have
impermissibly combined and are acting in concert to
impair Sherwin-Williams’ rights to due process by
entering into unlawful contingency fee agreements
with trial lawyers that violate due process by
delegating to private attorneys the Counties’ police
power to bring public nuisance claims. Because the
Counties are purportedly intending to bring these
public nuisance claims to enforce quasi-sovereign
rights on behalf of the public, the Counties may not
delegate their police power to private contingency-fee
trial attorneys who are not bound by the duties of
public prosecutors to act in the interest of fairness and
justice, but whose incentive is to receive the largest
recovery. Nevertheless, Delaware County has entered
44a
into a constitutionally infirm contingency fee
agreement with private trial attorneys to commence a
public nuisance lawsuit against Sherwin-Williams,
and the trial attorneys have discussed their proposed
complaint and fee agreement with Erie and York
Counties, and they are reportedly shopping their
public nuisance complaint and fee agreement to every
other county in Pennsylvania.
5. The substantial financial burden currently
being imposed on Sherwin-Williams by the imminent
threat of these multiple lawsuits unlawfully brought
by self-interested trial lawyers further justifies
immediate determination and protection of SherwinWilliams’ federal constitutional rights.
6. The trial lawyers are acting in concert with the
Counties and their public officials pursuant to a
common strategy to deprive Sherwin-Williams of its
federal constitutional rights. To protect SherwinWilliams’ constitutional and other federal rights and
prevent the Defendants from embarking on multiple
baseless lawsuits that will not benefit Pennsylvania
residents, that could create health risks, and that
would contravene federal and local regulatory
pronouncements,
Sherwin-Williams
seeks
a
declaration of its rights, duties, and obligations and an
injunction precluding Defendants from suing
Sherwin-Williams in violation of those declarations.
Plaintiff, The Sherwin-Williams Company, brings
this action pursuant to 42 U.S.C. § 1983 for
declaratory and injunctive relief and alleges as
follows:
45a
INTRODUCTION
7. In disregard of Sherwin-Williams’ federal
constitutional rights as well as federal and
Pennsylvania law, Delaware County has retained or is
about to retain counsel and imminently intends to sue
Sherwin-Williams, alleging that Sherwin-Williams
should be held liable for its participation in trade
associations and its protected speech during the time
it lawfully manufactured, promoted, and sold lead
paints and pigments many decades ago. See, e.g.,
Ex. A (News articles: Justin Sweitzer, Lehigh County
retains firm for lead paint lawsuit, WMFZ (Sept. 26,
2018, 11:26 PM) and Tom Shortell, Lehigh County
demands paint industry help with lead abatement,
THE MORNING CALL (Oct. 1, 2018)); Ex. B (Lehigh
County Council Resolution 2018-51); Ex. C at ¶¶ 15
n.7, 15 n.8, 39, 75, 126 (Complaint, Cty. of Montgomery
v. Atlantic Richfield Co., No. 2018-23539 (Ct. Common
Pleas, Montgomery Cty. 2018)). Two other counties—
Montgomery County and Lehigh County—have
already retained the same private trial lawyers
retained or likely to be retained by Delaware County
and have already sued Sherwin-Williams on these
grounds. The same trial lawyers have said that they
are actively soliciting other Counties in Pennsylvania
to bring substantively similar suits against SherwinWilliams and have conferred with York and Erie
Counties. See Ex. A; see also Lehigh Cty. Governance
Com. Hearing at 38:00–38:46 (Sept. 12, 2018) (“There
are 67 counties in Pennsylvania. Obviously it would
46a
be my hope that we [would] be able to represent all of
them.”)).1
8. These lawsuits all seek to hold SherwinWilliams liable under the theory of public nuisance for
its membership in trade associations, prior
commercial speech, and communications with
legislators and regulators in connection with its
manufacture, sale, and promotion of lead-containing
pigments or paints during the first half of the
twentieth century.
9. The trial lawyers, attempting to garner
contingency fees, seek to instigate a wave of litigation
on behalf of some or all Pennsylvania counties.
Through their solicitation, the trial lawyers are
misleading the Counties as to both the facts
concerning Sherwin-Williams and the law in order to
induce them to bring lawsuits, even though they do not
have evidence that Sherwin-Williams’ lead paints or
pigments are in or on the Counties’ buildings or the
buildings of their constituents.
Indeed, reports
indicate that county officials in jurisdictions that have
already brought suit at the behest of these trial
lawyers felt rushed to sue. See Ex. A (a Lehigh County
Commissioner stating at a hearing in which the trial
lawyers were retained to sue Sherwin-Williams, “I
think we’re kind of rushing into this. We should take
more time to review this particular issue”). In
addition, on information and belief, the trial lawyers
have failed to investigate the facts concerning the
sources of lead other than old paint causing elevated
1
Video
of
the
hearing
available
at
http://hosting.videominutes.net/player?handshake=36825&video
=3331.
47a
blood lead levels in the Counties or to advise the
Counties of their responsibility for sources of lead in
County-owned or managed buildings, playgrounds,
community centers, water systems, and other
facilities. On information and belief, they have failed
to advise the Counties of their potential liabilities for
failing to prevent or remediate lead hazards in
County-owned or managed properties, or for failing to
enforce laws requiring property owners to prevent or
remediate lead hazards.
Nor apparently, on
information and belief, have the trial lawyers advised
the Counties that Pennsylvania law, followed by the
United States Court of Appeals for the Third Circuit,
precludes the Counties’ contemplated public nuisance
claim against Sherwin-Williams.
10. The Counties and their trial lawyers also have
apparently failed to sue, or even conduct any
investigation into, the other potential sources that
contributed and continue to contribute to the presence
of lead in the Counties’ soil, air, food, household
products, and water—all sources of accessible lead.
For example, lead from gasoline was, for years,
emitted through the air into the soil and water in
Pennsylvania. See, e.g., Howard W. Mielke & Patrick
L. Reagan, “Soil is an Important Pathway of Human
Lead Exposure,” 106 Envtl. Health Perspectives 217,
227 (1998) (concluding that lead in soil, caused
primarily by automobile emissions, is at least as great
of risk to children as lead-based paint).
By
threatening to sue only Sherwin-Williams and a few
other former lead pigment and lead paint
manufacturers and refusing to identify the source or
manufacturer of the lead purportedly causing elevated
blood lead levels in any person at any location, the
48a
Counties acting together with the trial lawyers seek to
hold Sherwin-Williams disproportionately liable for
harms to which it did not contribute in violation of due
process of law.
11. The Counties and trial lawyers are attempting
to harm Sherwin-Williams by filing a large number of
lawsuits in many different courts throughout the
Commonwealth of Pennsylvania. The mere filing of
lawsuits by lawyers who have an improper financial
incentive in the result of a lawsuit purportedly
brought to protect the rights of the public will violate
Sherwin-Williams’ constitutional rights and cannot be
remedied. The trial lawyers and Counties are seeking
to coerce Sherwin-Williams to pay money to settle
meritless lawsuits through the expense, threat, and
risk of defending a multiplicity of lawsuits in a number
of counties throughout the Commonwealth. See
Lehigh Cty. Governance Com. Hearing at 27:58–28:43
(Sept. 12, 2018) (In presenting to the committee, a
representative of the trial lawyers stated, “We would
settle that case for somewhere in the nature of a
mathematical formula . . . .”).
12. The lawsuits threatened by the Counties
contend that the presence of lead-containing paint in
all buildings is a public nuisance, which must be
abated at the potential cost of tens of millions of
dollars to Sherwin-Williams in each county. However,
the mere presence of lead paint is not a lead hazard.
In reality, a lead paint hazard is defined as
deteriorated lead paint or lead dust exceeding
permissible levels. See 66 Fed. Reg. 1206 (Jan. 5,
2001) (codified at 40 C.F.R. pt. 745). Lead paint and
other lead hazards arise when private property
owners, the County, and other public entities have
49a
failed to maintain their properties and the leadcontaining paint within them, creating potentially
hazardous conditions.
Because property owners,
including the Counties, actually control the continued
presence, condition and maintenance of lead paint,
create any lead paint hazard, and bear legal and
financial responsibility for preventing and abating any
lead paint hazards in their properties, they are
directly responsible for creating the risk underlying
the alleged public nuisance. Rather than prosecuting
the culpable individuals for violating the law or for
allegedly causing harm, the Counties are
impermissibly attempting to shift their public
responsibilities to maintain their buildings and
properties and to enforce the law against negligent
property owners onto Sherwin-Williams. If these
lawsuits spread and succeed, millions of homes in the
Commonwealth would be declared public nuisances, a
label that brings with it a number of legal and
financial consequences for property owners.
Moreover, the Counties’ counsel have advocated
pursuing the purported “deep pockets” of SherwinWilliams to abate all lead-containing paint within the
Counties’ boundaries, whether or not it is hazardous,
poses any threat, or has caused any loss to the
Counties in order to reap a larger contingency fee.
13. The Counties and their trial lawyers base their
misleading
theory
on
Sherwin-Williams’
constitutionally protected speech and association. The
Counties will likely premise liability—as those
counties who have already filed suit have done—on
Sherwin-Williams’ membership in various trade
associations,
including
the
Lead
Industries
Association (“LIA”) and the National Paint Varnish
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and Lacquer Association (“NPVLA,” now called the
American Coatings Association – “ACA”), its
purported petitioning to the state, local, and federal
government regarding various proposed laws and
regulations, its commercial speech, and its expression
of public opinions. See e.g., Ex. C at ¶¶ 110–11.
14. Putting aside the lack of evidentiary support for
those allegations, the threat of multiple lawsuits
against
Sherwin-Williams
based
on
such
constitutionally-protected speech and associational
activity impermissibly chills its speech and
associational activities today. In light of this threat,
Sherwin-Williams has reconsidered and continues to
question its membership in various trade
organizations and its petitioning to the government on
any issues. The Counties’ threat of litigation across
the Commonwealth of Pennsylvania is further chilling
Sherwin-Williams’
exercise
of
its
federal
constitutional rights.
15. The Counties’ threatened lawsuits are meritless
as a matter of constitutional, federal and state law.
Manufacturers of products, under Pennsylvania law,
are not insurers of their products and are not required
to make products that last forever. Sherwin-Williams
did not create the alleged hazards, did not maintain
the alleged hazards, does not have access to or control
over private and public properties with lead paint, and
has no ability to inspect for or abate the alleged
hazards. Sherwin-Williams’ only acts were lawfully
participating in trade associations, lawfully exercising
its right to comment on proposed laws and regulations,
lawfully advertising its products, and lawfully
manufacturing, selling, and promoting leadcontaining paint and lead pigments many decades ago.
51a
16. The harms alleged by the Counties arise from
low-level
lead
exposures
undetectable
and
unknowable without the aid of modern technology and
epidemiology. At the time Sherwin-Williams was
participating in trade associations, engaging in other
protected speech and activity, and manufacturing,
selling, and promoting lead-containing pigments and
paints, it had no knowledge that lead-containing paint
could cause those alleged harms. In fact, such
knowledge was scientifically impossible. Tests to
measure blood lead levels did not even exist until the
1930s, and were still only available to a very few public
health departments by the 1950s. And it was not until
2003 that the first study purported to find cognitive
effects of blood lead levels below 10 μg/dL. This threat
of disproportionate, retroactive liability imposes
severe, unexpected financial hardship and disrupts
settled business arrangements and plans.
17. Because of the trial lawyers’ misleading
campaign of solicitation and their distorting the facts
and the law, which resulted in the unlawful contingent
fee agreements, Sherwin-Williams now faces the
imminent filing of a number of new, unsubstantiated
lawsuits by counties in Pennsylvania. The threat of
such lawsuits chills Sherwin-Williams’ exercise of its
federal constitutional rights, and the imminent filing
of these suits would irreparably harm SherwinWilliams, its employees, shareholders, and retirees,
violate its constitutional rights, and trespass on areas
preempted by federal statutory law. See e.g., Federal
Hazardous Substances Act, 15 U.S.C. §§ 1261–78.
Because of the multiple suits that are likely to be filed
in different counties and before different courts,
Sherwin-Williams will almost certainly receive
52a
inconsistent rulings and incur great hardship. The
multi-jurisdictional attack on Sherwin-Williams is
designed to financially injure Sherwin-Williams.
Forcing Sherwin-Williams to litigate multiple suits,
which would chill and violate its constitutional rights,
and wait years for appellate review to secure
uniformity and finality would be justice denied. Just
one erroneous verdict can have immediate, severe
impact on a corporation’s business, employees,
shareholders, and reputation that cannot be remedied
through the appellate process. In light of this
imminent threat and the real likelihood of multiple,
inconsistent rulings, this Court should grant this
declaratory and injunctive action to protect SherwinWilliams’ federal constitutional and statutory rights.
18. This civil action seeks to determine and declare,
in a single forum, the rights and obligations of
Sherwin-Williams under federal law and to enjoin
Defendants from suing Sherwin-Williams in violation
of those declarations. Sherwin-Williams seeks several
declarations of its rights and duties:
(A)
The Counties’ attempt to hold SherwinWilliams liable for its membership in trade
associations, its petitioning of the government, or its
commercial speech impermissibly chills the exercise
of and violates Sherwin-Williams’ rights under the
First Amendment of the United States Constitution;
(B)
The
Counties’
threatened
claims
premised on public nuisance are arbitrary,
impermissibly vague, and prejudicially delayed and,
if
permitted
to
proceed,
would
impose
disproportionate and retroactive liability without
fair notice in violation of the Due Process Clause;
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(C)
Public nuisance claims brought by a
public body under its police power to protect the
public health and safety cannot be filed or
prosecuted by trial lawyers who have a financial
incentive to secure a recovery; and
(D)
Any claim that Sherwin-Williams’
product warnings were inadequate after the
passage of the Federal Hazardous Substances Act is
preempted by that Act.
These
declarations
would
protect
SherwinWilliams’·federal constitutional rights, would help to
consistently resolve all disputes with the
Pennsylvania Counties against Sherwin-Williams,
and would prevent a tremendous waste of judicial
resources.
PARTIES
19. Sherwin-Williams is an Ohio corporation with
its principal place of business in the State of Ohio. In
the Commonwealth, Sherwin-Williams employs
almost 2,000 employees across 200 Company-owned
stores, division offices, two manufacturing plants, and
a research and development facility. In Delaware
County, Pennsylvania alone, Sherwin-Williams
operates 31 facilities employing 85 individuals.
20. The County of Delaware is a body corporate and
politic, political subdivisions, and municipality of the
Commonwealth of Pennsylvania with its County Seat
located in Media, Pennsylvania.
21. The County of Erie is a body corporate and
politic, political subdivisions, and municipality of the
Commonwealth of Pennsylvania with its County Seat
located in Erie, Pennsylvania.
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22. The County of York is a body corporate and
politic, political subdivisions, and municipality of the
Commonwealth of Pennsylvania with its County Seat
located in York, Pennsylvania.
23. Upon information and belief, John P. McBlain
is the Chairman of the County Council of Delaware
County, Pennsylvania and a resident of Pennsylvania.
24. Upon information and belief, Colleen P.
Morrone is the Vice Chairman of the County Council
of Delaware County, Pennsylvania and a resident of
Pennsylvania.
25. Upon information and belief, Michael Culp is a
member of the County Council of Delaware County,
Pennsylvania and a resident of Pennsylvania.
26. Upon information and belief, Kevin M. Madden
is a member of the County Council of Delaware
County, Pennsylvania and a resident of Pennsylvania.
27. Upon information and belief, Brian P. Zidek is
a member of the County Council of Delaware County,
Pennsylvania and a resident of Pennsylvania.
28. Upon information and belief, Dr. Kyle W. Foust
is the Chairman of the County Council of Erie County,
Pennsylvania and a resident of Pennsylvania.
29. Upon information and belief, Fiore Leone is the
Vice Chairman of the County Council of Erie County
and a resident of Pennsylvania.
30. Upon information and belief, Kathy Fatica is
the Finance Chairwoman and a Member of the County
Council of Erie County, Pennsylvania and a resident
of Pennsylvania.
31. Upon information and belief, Carol J. Loll is the
Finance Vice Chairwoman and a Member of the
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County Council of Erie County, Pennsylvania and a
resident of Pennsylvania.
32. Upon information and belief, Andre R. Horton
is the Personnel Chairman and a Member of the
County Council of Erie County, Pennsylvania and a
resident of Pennsylvania.
33. Upon information and belief, Carl Anderson III
is Member of the County Council of Erie County,
Pennsylvania and a resident of Pennsylvania.
34. Upon information and belief, Scott R. Rastetter
is as Member of the County Council of Erie County,
Pennsylvania and a resident of Pennsylvania.
35. Upon information and belief, Susan Byrnes is
the President of the Board of Commissioners for York
County, Pennsylvania and a resident of Pennsylvania.
36. Upon information and belief, Doug Hoke is the
President of the Board of Commissioners for York
County, Pennsylvania and a resident of Pennsylvania.
37. Upon information and belief, Chris Reilly is a
Member of the Board of Commissioners for York
County, Pennsylvania and a resident of Pennsylvania.
38. John Doe Counties include all counties, public
entities, political subdivisions, or municipalities in the
Commonwealth of Pennsylvania, except for the
Commonwealth of Pennsylvania or any of its
departments or agencies or the counties of
Montgomery and Lehigh, which, presently unknown
to Sherwin-Williams, have sued, have authorized a
lawsuit, or have retained counsel or have plans to sue
Sherwin-Williams, under any legal theory, because of
its membership in trade associations, petitioning
activities or commercial speech in connection with the
56a
former manufacture, sale, marketing or promotion of
lead-based paints or lead pigments, or because of its
alleged failure to warn adequately about the risks of
ingestion or inhalation of lead-based paints or lead
pigments.
39. John Does are all county and municipal officials
in the Commonwealth of Pennsylvania, their
representatives or agents except those in the counties
of Montgomery and Lehigh who, presently unknown to
Sherwin-Williams, have filed suit, have authorized a
lawsuit, or have retained counsel or have plans to sue
Sherwin-Williams because of its membership in trade
associations, petitioning activities or commercial
speech in connection with the former manufacture,
sale, marketing or promotion of lead-based paints or
lead pigments, or because of its alleged failure to warn
adequately about the risks of ingestion or inhalation
of lead-based paints or lead pigments.
40. All named Counties, individuals, John Doe
Counties, and John Does shall collectively be referred
to as “Counties.”
JURISDICTION AND VENUE
41. Because this action arises under the
Constitution and laws of the United States, this Court
has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.
§ 1367.
42. Additionally, this Court has diversity
jurisdiction over Sherwin-Williams’ claims under 28
U.S.C. § 1332. Sherwin-Williams and the Counties
are diverse from one another. The Counties imminent
claims against Sherwin-Williams seek inspection and
abatement costs in the tens of millions of dollars.
57a
43. Defendants are depriving Sherwin-Williams of
rights secured by the Constitution and federal law in
violation of 42 U.S.C. § 1983. Thus, this Court also
may exercise subject matter jurisdiction under Section
1983 and 28 U.S.C. 1343(a)(3).
44. Venue in this judicial district is proper
pursuant to 28 U.S.C. § 1391(b)(1), (b)(3) & (c) because
the Counties reside within the Commonwealth of
Pennsylvania and at least one of them resides in this
judicial district. Venue is also proper under 28 U.S.C.
§ 1391(b)(2) and (c), because a substantial part of the
events or omissions giving rise to the claim occurred
in this district.
BACKGROUND
Intact, Well-Maintained Lead Paint Is Not A
Lead Hazard or Public Nuisance
45. Since its founding more than 150 years ago in
1866, Sherwin-Williams has acted responsibly and
with concern to produce high quality products that are
safe when used and maintained as intended. Today,
intact, well-maintained lead-based paint does not
present a health risk. As with any consumer product,
lead-containing paint, which was made and applied
decades ago, must be maintained, kept in good repair
and appropriately taken care of when its useful life
has ended. Property owners have the responsibility
under Pennsylvania and local law to maintain their
properties, including paint, and to protect themselves
and others from any health risks that might arise from
their failure to maintain old, worn-out lead-based
paint.
46. Unlike lead in water or air, lead-containing
paint seldom presents any risk in county buildings
58a
themselves because employees and visitors are over
the typical age of concern for lead exposure from paint
chips or dust, and county public buildings are
routinely maintained and cleaned. No public health
report, to Sherwin-Williams’ knowledge, has ever
attributed an elevated blood lead level in a child to
lead-based paint in the Counties’ public, nonresidential buildings.
47. Blood lead levels in children are at an historic
low and continue to decline across all ages and groups.
The incidence of elevated blood lead levels in children
from any source, moreover, has declined dramatically
during the last few decades, after lead was removed
from several sources other than paint, such as
gasoline, solder, and food containers. According to
published reports, symptomatic childhood lead
poisoning has essentially disappeared in this country.
Therefore, the existing and threatened suits against
Sherwin-Williams are not based on any report or data
suggesting that the mere presence of lead-based paint
presents any significant health risk to the Counties’
residents.
48. Lead paint typically remains buried under
many layers of non-lead paint, does not generate
harmful lead dust, and does not need to be abated
when it is maintained and intact. Congress has
concluded that the presence of lead paint in buildings
poses “no immediate threat to the safety of children.”
See P.L. 102-550, Housing and Community
Development Act of 1992, S. Rep. No. 332, 102nd
Cong., 2d Sess. 262–63, 1992 WL 184100 (1992); see
also 66 Fed. Reg. 1206 (Jan. 5, 2001) (codified at 40
C.F.R. pt. 745).
Notwithstanding these federal
pronouncements, the trial lawyers are misleading the
59a
Counties into believing that they should sue SherwinWilliams and hold it liable for costly, unnecessary
abatement programs.
Basic Information about Lead-Based
Pigments and Paints
49. Lead is one of the most historically useful
metals. Lead has been used in the manufacture of
many products, such as food cans, cosmetics, pipe,
solder, and toys. Even today, leaded crystal glasses,
decanters, and other leaded glassware are commonly
used, and lead is used in dozens of products, such as
auto batteries, computers, lead stabilizers for plastics
and protective covering for wire, despite lead’s known
toxicity if ingested.
50. Lead pigments were used in paint for hundreds
of years and were considered to be the premier paint
products for both interior and exterior uses. Indeed,
the quick-drying paint that we know today did not
exist until the 1940s and prior to the late 1800s the
ready-mixed paint in any form did not exist. Rather,
the constituent chemicals that comprised paint at that
time—such as white lead pigment, linseed oil, and
thinners—were purchased separately and mixed
together by master painters and had to be applied over
a period of days due to long drying times and the need
to sand between coats. Because of this mixing process
and labor intensive application, most paint was
applied by professional painters. During this time,
those professional painters considered lead pigments
to be the best ingredients available for paints because
they lasted longer and presented a better surface for
repainting.
60a
51. During the first half of the 20th century, when
most lead-based architectural paints were made and
sold in the United States, federal and state
governments, painters, and the public continued to
view lead paints as the best paints available on the
market. Lead paints were perceived to adhere to
surfaces better than other paints and thus were seen
as more durable and lasting. Lead paints also
protected surfaces better than alternatives; for
example, lead paints protected wood surfaces from
water and sun damage, and protected metal from
rusting. In the early decades of the 1900s, when an
influenza pandemic killed over a million people in the
United States, and smallpox, polio, and tuberculosis
infected tens of thousands annually, the ability to
wash germs off surfaces in homes and other buildings
was critically important to public health. According to
public health physicians, lead paints provided
washable, durable surfaces that could substitute for
wallpapers, then considered to be a repository of germs
and bacteria for infectious diseases.
52. It was then (as it is today and has been since
Greek and Roman times) public knowledge that lead
can be toxic if ingested in sufficient quantities over a
sufficient period of time. At that time, sufficient
quantities equated to very large quantities by today’s
standards, as lead poisoning was diagnosed by the
presence of symptoms, not by population-based,
computer-generated,
statistical
analyses
and
epidemiology. In fact, the toxicity of lead was so well
known that it was said in the early 1900’s to sound its
own warning. Nonetheless, the prevailing view of
public health regulators was that lead pigments could
be safely used in interior and exterior paints in
61a
schools, homes, and public buildings, because, as
everyone knows, paint was not (and is not) a product
designed to be ingested, cases of symptomatic lead
poisoning in children from ingesting lead paint were
very rare and attributed to the psychological condition
of pica, and cases of symptomatic lead poisoning in
adults were virtually all related to occupational
exposures, not the presence of lead paint on building
or residence surfaces. The recommended precaution
was to supervise those children with pica carefully to
avoid their exposure to lead paint, not to prohibit the
use of lead paint in or on private housing or public
buildings.
53. The mere existence of a potentially toxic
substance in a consumer product is commonplace. Any
number of products found in homes today contain
substances that can be toxic if misused and ingested
in sufficient quantities, from bleach to laundry
detergent, to toothpaste, to furniture polish. Unlike
some products containing toxic materials, however,
Sherwin-Williams did not disguise the use of lead
pigments in its paints. Indeed, the presence of lead
was identified on labels because it—the lead—was the
very chemical that provided the desirable attributes of
the product. In fact, recognizing the benefits of lead
pigment in paint, the labeling standards of the U. S.
Department of Commerce at one time during the
20th century forbade calling a product “lead paint”
unless it had at least 45% lead pigment. Many state
laws contained similar requirements.
54. Architects, contractors, public decision-makers,
and property owners typically selected the type of
paint that would be used based on a wide variety of
considerations and preferences, including types of
62a
color, gloss, surface, durability, price, location, and
ease of application and maintenance, among other
factors. These persons would have been fully aware
that some paints contained lead, that ingestion of too
much lead could be dangerous, and that other paints
were available, yet they frequently selected lead
paints because of their superior durability and
performance. Sherwin-Williams never concealed the
potential toxicity of lead if ingested. It had no more
knowledge about the toxicity of lead than available
published medical knowledge, and it labeled its paints
since the early 1900s to show their ingredients.
55. Sherwin-Williams was an innovator and
pioneer in making and promoting non-lead paints.
From at least the beginning of the 20th century,
almost none of Sherwin-Williams’ interior paints
contained white lead carbonate pigment, the main
lead pigment produced during the first half of the
twentieth century. Sherwin-Williams researched,
developed, made, used, promoted, and sold, as they
became technically and commercially feasible, nonlead pigments for use in architectural paints, such as
zinc oxide, lithopone, and titanium dioxide. In 1941,
Sherwin-Williams invented Kem-Tone water emulsion
paint,
a
durable,
non-lead-based,
interior
architectural paint, for which it received an historical
achievement award from the American Chemical
Society. Due to the technological developments in
paint ingredients during this period, SherwinWilliams soon became one of the largest sellers of nonlead paints and pigments in the world. By 1937,
Sherwin-Williams had stopped using white lead
carbonates, one of the lead pigments traditionally used
by master painters and by manufacturers to make
63a
many architectural and other paints, in its interior
architectural paints, with limited exceptions during
WWII due to war-time ingredient shortages. By June
1947, Sherwin-Williams had stopped making white
lead carbonate pigments. It ceased manufacturing red
lead in 1947 as well.
56. Despite the availability from Sherwin-Williams
and others of non-lead-based paints, the federal
government and other public entities, nonetheless,
continued to specify and recommend the use of
exterior lead-based paints in government projects into
the 1970s because of lead paint’s proven performance
and benefits.
57. In fact, federal, state, and local government
paint specifications played a large role in extending
the continued use of lead paints for interior, as well as
exterior, use. These specifications were developed
over a long period of time and were based on the
experience and expertise of, and testing by,
government paint chemists, principally those working
at the National Bureau of Standards and the Forest
Products Laboratory of the U.S. Department of
Agriculture. These chemists had strong, independent,
published opinions favoring the use of white lead
based paints that were drawn from their own
experience and testing.
58. Recognizing the numerous beneficial attributes
of lead ingredients in paint, the federal government,
throughout at least the first half of the 20th century,
frequently specified the use of lead-based paints in
government projects, including residential housing
projects and schools, even though it knew that lead-
64a
based paints could be toxic to children and others if
misused, not maintained, and ingested. For example:
In 1917, the Department of Commerce, Bureau
of Standards identified white lead carbonate as
“the most important white paint pigment.”
Circular of the Bureau of Standards, No. 69,
Paint and Varnish at 29.
In March 1920 and July 1922, the Bureau of
Standards issued specifications for white paint
and tinted paints that were adopted and used by
the federal government for all federal projects.
The specifications required a minimum of 45%
white lead and a maximum of 70%.
In 1931, the federal government’s master
specifications for white paint increased the
minimum percentage of white lead from 45% to
60%.
During the 1930s, the federal government
specified white lead in oil for interior uses in
housing projects funded by it.
In the 1930s, the U.S. Departments of
Agriculture and Interior recommended the use of
white lead for exterior paint, interior flat wall
paints, and interior trim of all kinds.
In 1936, the Bureau of Standards touted basic
carbonate white lead as “the most important of
the white pigments” and the only white pigment
that could be used alone in white linseed oil
paints intended for outdoor exposure.
In 1941, the Navy specified paint containing a
minimum of 71% white lead for defense housing
projects.
65a
Through the 1950s, federal government paint
specifications called for the inclusion of white
lead in exterior paints.
Throughout
these
periods,
the
federal
government’s paint chemists independently
tested and wrote about the many benefits of leadbased architectural paints.
59. State and local governments often followed
federal specifications and recommendations. Indeed,
in 1937 the City of Baltimore, whose Health
Commissioner brought to the forefront the public
health issues of exposure from lead paint on children’s
toys and furniture and lead in battery casings, chose
to switch to the use of white lead based paints in its
hospitals and schools. See Ex. D (Baltimore’s City
Government Specifies White Lead, LEAD MAGAZINE
(1940)). Also, certain industrial maintenance, bridge,
marine, and traffic paints that counties and other
political subdivisions typically used continued to have
lead pigments because of their unique protective and
other qualities.
60. Not until the late 1940s, after SherwinWilliams had stopped making interior residential
paints with white lead, did public health officials
discover the public health risks to children from
peeling and flaking interior residential lead-based
paints. The discovery was due to an unexpected surge
in the number of children with elevated blood lead
levels in Baltimore, Maryland. As soon as it learned
of this problem, the LIA sponsored new research and
an investigation by physicians at Johns Hopkins
University. This research revealed that the Baltimore
children were ingesting deteriorated, interior lead-
66a
based paints that their landlords had failed to
maintain. This research was promptly published, and
the LIA took steps to alert public health officials across
the country to this risk.
61. The LIA also informed the American Academy
of Pediatrics of the newly discovered risk to children
from peeling and flaking interior residential leadbased paints. The American Academy of Pediatrics
recommended that the American Standards
Association (“ASA”) promulgate a national standard to
regulate the use of lead-based paints on interior
residential surfaces. In 1955, the ASA issued a
voluntary standard, which required that the content
of lead in interior paint not exceed one percent “of the
total weight of the contained solids (including
pigments and drier).” Sherwin-Williams was an
alternate on the subcommittee that proposed the 1955
standard, and was a full member of the subcommittee
in 1964.
62. Public health officials praised the LIA for its full
cooperation in facilitating the passage of the 1955 ASA
standard. The LIA and lead-based paint and pigment
manufacturers supported not only the 1955 ASA
standard, but also federal, state and municipal laws
and regulations prohibiting the use of lead-based
paints in applications known to be potentially
hazardous to children. Throughout its history, the
LIA supported no-strings-attached medical research
at leading medical schools, such as Harvard
University and Johns Hopkins University, into the
health risks of lead, and that research was published.
63. Working with the NPVLA and public health
officials, Sherwin-Williams helped to draft lead
67a
cautions for paints containing lead pigments in the
1950s. At all times, Sherwin-Williams complied with
federal and local laws and regulations regarding the
lead content of warnings for lead paints.
The Unjustified Imminent Lawsuits
64. Sherwin-Williams is facing the imminent threat
of multiple lawsuits in numerous counties across the
Commonwealth of Pennsylvania. Suits have already
been filed in Lehigh County and Montgomery County.
Delaware County has retained the same counsel as
Lehigh and Montgomery Counties to institute such a
suit. And the same outside attorneys have conferred
with Erie and York counties and are actively soliciting
other counties to file suit. See Ex. A.
65. It is likely that the fee agreement between the
Defendants and the outside trial lawyers are or will be
substantively similar to an agreement struck by the
same attorneys and Lehigh County to pursue what
appears to be identical litigation. See Ex. B. Pursuant
to that agreement, the outside trial lawyers are
authorized to pursue claims against Sherwin-Williams
“relating to the County’s claims for remediation,
declaratory relief, and public nuisance resulting from
the manufacturing, marketing, and use of lead paint.”
Ex. B at Engagement Letter.
Because the fee
agreement does not require the County Solicitor to
retain control or supervision over the significant
decisions in the litigation, the Counties have
effectively and impermissibly delegated their exercise
of police power to the private trial attorneys. For
instance, the fee agreement states that the trial
attorneys “shall have full power to represent the
County in prosecution of the Claims as may appear to
68a
us to be in the County’s best interests subject to
regular and reasonable consultation with the County.”
Id. (emphasis added). The agreement also appears to
give the trial attorneys the unilateral power to retain
additional outside counsel to aid in the case. Id. at 2.
And, the outside attorneys are entitled to a 33.3%
contingency fee plus expenses. Id. at 1.
66. It is also likely that the Defendants’ lawsuits
will take a substantively similar form to the
complaints already instituted by Lehigh County and
Montgomery County at the behest of the same outside
trial attorneys. In both Lehigh and Montgomery
Counties, the outside attorneys have filed a complaint
seeking to impose liability for, inter alia, SherwinWilliams’ “manufacture, promotion, propagation, sale,
and/or distribution of lead-based paints and pigments”
under a public nuisance theory. See e.g., Ex. C at p. l,
¶ 126.
67. Sherwin-Williams thus faces the imminent
prospect of defending against many lawsuits in
different
judicial
districts
throughout
the
Commonwealth of Pennsylvania.
Because these
upcoming suits will be filed in many different judicial
districts across the Commonwealth, there is a strong
likelihood that Sherwin-Williams will be subject to
inconsistent or delayed rulings from different trial
courts. As a result, the most efficient way to resolve
these imminent suits is to have a single federal court
issue a ruling uniformly resolving the parties’ rights.
68. A single, authoritative declaration protecting
Sherwin-Williams’ rights can efficiently and
effectively resolve the issues in the existing and
threatened suits.
Absent such a declaration,
69a
moreover, vast judicial, public, and private resources
would be squandered as numerous courts would likely
be asked soon to decide exactly the same issues.
69. In a situation like this, where a party faces the
twin threats of a number of lawsuits and inconsistent
state rulings with federal constitutional rights and
other federal questions involved, this Court can, and
should, determine and declare the rights and
obligations of that party.
70. Filing lawsuits, which do not have a legal or
factual basis, in order to increase Sherwin-Williams’
cost of litigation and either to stifle its exercise of its
First Amendment rights or to impose substantial
business injury without due process of law, justifies
the Court’ s exercise of jurisdiction here.
71. The Counties’ threatened actions will have a
significant negative impact on Sherwin-Williams, its
employees, its retirees, and its shareholders,
including, but not limited to, the time and resources
associated
with
defending
against
the
unconstitutional litigation and the fluctuations in
Sherwin-Williams’ share value caused by the
Counties’ actions.
In addition, the Cities’
unconstitutional and illegal actions risk the well-being
of
countless
Sherwin-Williams’
shareholders,
pensioners, and employees, including the hundreds
who live in the Counties. The negative effects are
directly related to the fact that the Counties have
chosen to seek to impose grossly disproportionate,
retroactive, and unconstitutional liability against
Sherwin-Williams.
70a
COUNT 1
Declaration That the Counties’ Claims Violate
the First Amendment
72. Sherwin-Williams incorporates by reference the
allegations of paragraphs 1 through 71.
73. The trial lawyers retained by Delaware County
and perhaps other counties such as York and Erie seek
to instigate numerous lawsuits across Pennsylvania
against Sherwin-Williams on behalf of public entities
in return for a large contingency fee. These lawyers
will attempt, as other cases have before, to hold
Sherwin-Williams liable for: (i) its membership in the
LIA and NPVLA; (ii) the activities of the LIA and
NPVLA, including those that Sherwin-Williams did
not join, fund, or approve; (iii) Sherwin-Williams’
purported petitioning of federal, state and local
governments; and (iv) Sherwin-Williams’ commercial
speech.
74. The only factual allegations supporting these
extraordinary legal assertions are that SherwinWilliams was a member of LIA and NPVLA; that it
contributed to one program promoting the use of highquality ready-mixed paints in addition to white lead in
oil; that other members funded other LIA activities,
including its promotion of lead pigment and paint; that
Sherwin-Williams itself also separately promoted the
sale of its lead pigments and paints; and that the LIA’s
lawful promotion of legal products was tortious. These
allegations are insufficient as a matter of law to
impose any kind of civil liability on Sherwin-Williams.
Such liability would impair Sherwin Williams’ federal
constitutional right of freedom of association and
speech and would chill product manufacturers
71a
including Sherwin-Williams from advertising their
lawful products and from joining and participating in
trade organizations, which perform many valuable
functions.
75. Because Sherwin-Williams’ business was
focused on the manufacture and sale of all readymixed paints and many non-lead pigments rather
than lead paints and pigments in particular, SherwinWilliams was only a nominal member of the LIA.
Based on historical records, Sherwin-Williams was not
active in LIA’s business affairs and attended only the
first three annual meetings. Sherwin-Williams was
never a member of the LIA’s Board of Directors or
Executive Committee.
In all of its years of
membership from 1928 to June 1947, SherwinWilliams paid only approximately $17,000 in dues and
other contributions.
Sherwin-Williams did not
contribute to the LIA’s White Lead Promotion
campaign, which is a centerpiece of the inaccurate
allegations made against Sherwin-Williams in the
complaints filed by Lehigh and Montgomery Counties.
76. No member of an association can be held civilly
liable for any wrongful conduct committed by the
association or its other members unless the
association had unlawful goals and the particular
member had a specific intent to further those unlawful
aims. Otherwise, the imposition of liability violates
the First Amendment of the United States
Constitution and Sherwin-Williams’ right of freedom
of association and speech.
77. The Counties cannot demonstrate that the aim
of LIA or the NPVLA was unlawful. In addition, they
cannot allege that Sherwin-Williams had a specific
72a
intent to further some alleged unlawful purpose of
either association.
Sherwin-Williams’ mere
membership in LIA or the NPVLA, its participation in
their meetings, and its payment of dues to the LIA or
the NPVLA are altogether insufficient to demonstrate
that Sherwin-Williams specifically intended to
promote unlawful conduct, because these facts could
also demonstrate that Sherwin-Williams intended to
promote LIA’s or the NPVLA’s constitutionallyprotected activities. Moreover, mere parallel conduct
cannot demonstrate an intentional tortious scheme.
At all times before 1978 during Sherwin-Williams’
membership in the LIA and the NPVLA, it was lawful
to sell and promote lead-based paints and pigments for
certain uses.
78. In a similar vein, the Counties will likely
impermissibly seek to hold Sherwin-Williams liable
for it or a trade association exercising its First
Amendment right to petition the government and
express opinions about its products. Indeed, this is
precisely what the complaints already filed by the trial
lawyers in Montgomery and Lehigh counties have
sought to do. See e.g. Ex. C at ¶¶ 107, 110, 126.
79. Sherwin-Williams cannot be liable for
statements that it or a trade association made to
federal, state, or local legislators or regulators or for
its or a trade association’s published opinions because
those types of statements are constitutionally
protected, even if the statements were later found to
be mistaken or untrue. Nor can it be liable for lawful
commercial
speech.
Sherwin-Williams’
advertisements were truthful and, as such, are
entitled to First Amendment protections.
73a
80. The Counties’ threatened lawsuits, if permitted
to proceed, would impermissibly chill the free speech
and association rights of Sherwin-Williams as well as
myriad product manufacturers and trade associations.
Sherwin-Williams, like most large companies, belongs
to many organizations and associations, even though
Sherwin-Williams does not agree with every stated
position of these organizations and associations.
Sherwin-Williams, moreover, continues to petition
local, state and federal governments and continues to
speak on matters of public concern. An immediate
determination regarding the constitutionality of
imposing liability based on Sherwin-Williams’ speech
activities is necessary to avoid a chilling effect on
Sherwin-Williams’ current and future constitutionally
protected activities.
81. Actual controversies have arisen between the
parties entitling Sherwin-Williams to a declaration
that it cannot be held liable for First Amendmentprotected activities.
COUNT II
Declaration That the Counties’ Claims Violate
the Due Process Clause
82. Sherwin-Williams incorporates by reference the
allegations of paragraphs 1 through 81.
83. The Counties’ lawsuits, if permitted to proceed,
would seek to impose on Sherwin-Williams liability
(i) that is grossly disproportionate; (ii) arbitrary;
(iii) impermissibly retroactive; (iv) without fair notice;
(v) impermissibly
vague;
and
(vi) after
an
unexplainable, prejudicial and extraordinarily long
delay, in violation of the Due Process Clause.
74a
84. The Counties’ lawsuits will seek to hold
Sherwin-Williams liable by applying today’s medical
standards to its decades old conduct. SherwinWilliams had no knowledge at the time it participated
in trade associations in connection with its past
manufacture, sale, or promotion of lead pigments and
lead-containing paints that the alleged harms at issue
today, blood lead levels as low as under five
micrograms per deciliter, posed any potential health
risk. Medical science was unable to even measure
such minute levels of lead at the time. In fact, at the
time that Sherwin-Williams manufactured, promoted,
and sold lead pigments, the use of lead pigments in
architectural paints was not only lawful, but also
encouraged and specified by various cities, states, and
the federal government. Even today, the presence of
lead-based paints in housing and public buildings in
the Counties is authorized by law. Sherwin-Williams
did not know, and could not have known, that its
lawful participation in trade associations, petitioning
activities, commercial speech, and manufacture,
promotion, and sale of lead pigments and paints could
serve as the basis for massive liability decades later.
85. The Counties seek to hide behind the inherent
vagueness of public nuisance law to avoid established
bars to product liability and reach a result never
before allowed in Pennsylvania. Public nuisance law
does not supplant product liability law. Even under
product liability law, Pennsylvania law does not
allocate the duty (or cost) of inspecting, maintaining,
or repairing goods after sale to their manufacturers.
The owners of products or properties have a
nondelegable duty to ensure that those products and
properties are inspected and maintained so that they
75a
do not become hazardous. The Constitution prohibits
the Counties from seeking to apply a novel
interpretation of unduly vague public nuisance law
retroactively to hold liable manufacturers of decadesold products past their useful life.
Again, the
imminent threat of such allegations imposes a severe
financial hardship on Sherwin-Williams.
86. The Counties, like Lehigh and Montgomery
Counties, will likely try to hold Sherwin-Williams
liable for all alleged injuries arising out of all leadcontaining paint or exposures to lead, even if SherwinWilliams did not manufacture the products that
caused the injuries.
Indeed, the Lehigh and
Montgomery County complaints seek joint and several
liability. See Ex. C at pp. 38–39.
87. Permitting Defendants to proceed without
allegations or evidence of causation would violate
fundamental principles of fairness and notice, amount
to the arbitrary imposition of retroactive liability,
would result in grossly disproportionate liability, and
constitute an unconstitutional deprivation and taking
in violation of the Due Process Clause. For the same
reasons, the Counties’ lawsuits are based on an
application of state law that is unconstitutionally
vague.
88. The Counties’ extraordinary and unexplainable
delay in bringing their actions, furthermore, is
arbitrary and has prejudiced Sherwin-Williams. Their
claims are, and should be held to be, time-barred. The
Counties have known for decades of the potential
health risks of lead paint used in the interior of homes
and not maintained in an intact condition.
Nonetheless, the Counties waited, for no apparent
76a
reason, for over a half century to bring their actions.
In those years, proof of the lead-based products that
were used in the housing and public buildings in
question has been destroyed, individuals who
purchased or applied the lead-based paints have died,
evidence concerning the maintenance of the paint has
been lost, other witnesses and documents important to
Sherwin-Williams’ defense have become unavailable,
and hazards and costs that could have been avoided
have been created. Yet, the Counties will likely try to
use the public nuisance theory to evade the statute of
limitations and to excuse their laches.
89. The imposition of liability on Sherwin-Williams
in these lawsuits is so arbitrary and inconsistent with
notions of fairness and notice that it would constitute
an arbitrary and bad faith exercise of the
Commonwealth’s police power and an unlawful
deprivation and taking of Sherwin-Williams’ property
by the Commonwealth, in violation of the Due Process
Clause.
90. The immediate and uniform judicial review of
the Counties’ actions is warranted to ensure stability
and the well-being of Sherwin-Williams and its
employees, retirees, and shareholders.
If the
Constitution were to permit retroactive, severe, and
grossly disproportionate liability based upon the
future knowledge of the scientific and medical
communities, such a decision would disrupt settled
expectations and alter many companies’, including
Sherwin-Williams’, business plans, financial reserves,
accounting, and overall financial health. Waiting
years for the inevitable inconsistent opinions to work
their way through the various trial courts throughout
the Commonwealth and the appellate courts would
77a
have a detrimental, irreparable effect on SherwinWilliams and those who depend on it.
91. Actual controversies have arisen between the
parties entitling Sherwin-Williams to a declaration
that it cannot be held liable under the Counties’
theories consistent with the Due Process Clause.
COUNT III
Declaration That the Counties’ Contingency
Fee Agreements Violate the Due Process Clause
92. Sherwin-Williams incorporates by reference the
allegations of paragraphs 1 through 91.
93. Based on the agreement between the trial
lawyers and Lehigh County, the trial attorneys
bringing the Counties’ actions stand to garner 33 1/3%
of any recovery plus expenses.
Ex. B.
Upon
information and belief, other Counties have made
similar arrangements.
Those contingent fee
agreements are unlawful and violate SherwinWilliams’ due process right to have a financially
disinterested public official prosecuting a public
nuisance suit brought on behalf of the public.
94. The Constitution prohibits vesting the
prosecutorial function in someone who has a financial
interest in using the government’s police power to hold
a defendant liable. Indeed, public nuisance is a quasicriminal tort, which was always a crime at common
law. Public nuisance, moreover, involves balancing a
number of factors and interests; merely defining the
nature and scope of the public nuisance and
determining who should be sued is an inherently
discretionary function. A financial incentive to tip the
scales in favor of additional regulation and restriction
or toward particular defendants improperly and
78a
unconstitutionally impairs a defendant’s due process
rights.
95. The unlawful financial incentive given to the
trial lawyers demonstrates the danger of allowing the
Counties to proceed with their unconstitutional
actions. Although scientific evidence demonstrates
that intact lead-containing paints are not a health
hazard and need not be abated, the Counties’ lawsuits
will be based on the presence of lead-containing paint.
See Ex. C at ¶ 1 (“The continued presence of poisonous,
injurious lead paint in hundreds of thousands of
residences
throughout
Montgomery
County,
Pennsylvania constitutes an ongoing interference with
the public health, safety, peace, comfort, and
convenience of the citizenry . . . .”). The removal of
intact lead-containing paint actually has been shown
to create a risk of health hazards to children. Because
of the financial payout, however, the Counties, acting
together with their trial lawyers, will include the
presence of all lead-containing paint everywhere,
including
intact
lead-containing
paint
and
inaccessible lead-containing paint, within the scope of
the alleged public nuisance (including on private
properties they do not own) to increase the size of the
potential recovery and to exert financial pressure and
injury on Sherwin-Williams. See Ex. C at ¶¶ 129–30.
96. The mere filing of lawsuits by the Counties
would have a detrimental effect on Sherwin-Williams
and its employees, retirees, and shareholders.
Because of the improper financial incentives, the scope
of the case is disproportionate and inconsistent with
Sherwin-Williams’ duties and conduct. Additionally,
once these lawsuits are filed, the Counties’ financial
arrangement with trial attorneys will unlawfully
79a
interfere with the Counties’ decision-making,
including altering their positions or dissuading them
from seeking appropriate resolutions to the alleged
health hazards with which they are concerned.
Sherwin-Williams’ rights can be protected only by
determining the propriety of using trial lawyers on a
contingency fee before a public nuisance action is filed.
97. The prosecution or filing of a public nuisance
action by contingency fee trial attorneys on behalf of
the Counties ostensibly to protect the public interest
would violate Sherwin-Williams’ constitutional rights.
Actual controversies have arisen between the parties
entitling Sherwin-Williams to a declaration that the
Counties cannot hire contingency fee lawyers to
pursue actions against private citizens.
Prayer for Relief
WHEREFORE, plaintiff, Sherwin-Williams, prays:
(a)
For
a
judgment
declaring
and
adjudicating the respective rights and obligations of
Sherwin-Williams
under
the
United
States
Constitution and federal law, and further declaring
that:
The Counties cannot, consistent with the
First Amendment of the United States Constitution,
seek to impose liability on Sherwin-Williams based on
(1) its membership or participation in the LIA or any
other trade association, (2) its or a trade association’s
petitioning of any federal, state or local government
agency, (3) its or a trade association’s lawful
commercial speech, (4) its or a trade association’s
public expressions of opinion or (5) other activities
protected by the First Amendment;
80a
The Counties’ public nuisance claims are
arbitrary, impermissibly vague and prejudicially
delayed, they seek to impose grossly disproportionate
and retroactive liability without fair notice, proof of
product identification, or evidence of causation, and
would constitute a deprivation and taking of property
in violation of the Due Process Clause; and
The contingency fee agreement proposed
by trial lawyers to prosecute against SherwinWilliams’ public nuisance action on behalf of the
Counties to protect the public interest is unlawful and
violates due process of law;
(b) For a preliminary and permanent injunction
against the Defendants prohibiting each of them from
filing or proceeding with any lawsuit or civil action of
any kind in violation of this Court’s declaration of
Sherwin-Williams’ rights and obligations;
(c) For an award to Sherwin-Williams of its costs
and expenses, including reasonable attorneys’ fees as
permitted by 42 U.S.C. § 1988, necessarily incurred in
connection with this action; and
(d) For such further relief as the Court deems just
and proper.
Dated:
October 22, 2018
Respectfully submitted:
By: /s/ William H. Pugh, V.
William H. Pugh, V.,
Bar No. 54843
KANE, PUGH, KNOELL,
TROY & KRAMER LLP
510 Swede Street
81a
Norristown, Pennsylvania
19401
Telephone: (267) 234-1330
Leon F. DeJulius, Jr.,
Bar No. 9383 (Pro Hac Vice
Motion to be Filed)
Charles H. Moellenberg, Jr.,
Bar No. 54740 (Pro Hac Vice
Motion to be Filed)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, Pennsylvania 15219
Telephone: (412) 391-3939
Jennifer B. Flannery,
Bar No. 74546 (Pro Hac Vice
Motion to be Filed)
JONES DAY
1420 Peachtree Street, N.E.,
Suite 800
Atlanta, Georgia 30309
Telephone: (404) 581-3939
Attorneys for Plaintiff
THE SHERWIN-WILLIAMS
COMPANY
82a
EXHIBIT A
83a
Lehigh County retains firm for lead paint
lawsuit
By:
Justin Sweitzer (http://www.wfmz.com/meet-theteam/ justin-sweitzer/753079916)
(mailto:sweitzerjt@gmail.com)
Posted: Sep 26, 2018 11:26 PM EDT
Updated: Sep 26, 2018 11:26 PM EDT
ALLENTOWN, Pa. - The Lehigh County Board of
Commissioners narrowly approved a representation
agreement Wednesday evening to retain the services
of a Philadelphia-based law firm as the county seeks
remediation and relief from lead paint manufacturers.
The county will retain the services of Anapol Weiss to
represent Lehigh County in a lawsuit that targets
Sherwin-Williams Company and other companies that
have produced lead paint in the past. The lawsuit is
not going after the companies for past harm to
84a
individual plaintiffs, but rather for monetary relief to
cover the costs of fixing housing units that contain lead
paint.
According to Commissioner Nathan Brown,
approximately 9,023 homes in the county were built
before 1980 and contain lead paint. More than half of
those home—52 percent—require remediation, or
removal of the lead paint, totaling $39 million in cost.
If the suit is successful, the county would use the
verdict or settlement money to fund remediation of the
homes.
David Senoff, a shareholder with Anpol Weiss, said at
the board’s Sept. 12 meeting that any money received
by the county would be placed into a fund designated
for lead hazard control.
“The goal of the litigation would be to remediate going
forward,” Senoff said at the board’s first September
meeting. “This is purely to create a fund to be
administered by the county so that residents, lowincome residents of houses with landlords who own
property that have lead paint, ... can come and get a
certain amount of money to remediate or do ... lead
hazard control on their properties in order to avoid
this from ever happening again.”
85a
“The damages are based on the costs that it would take
to fix the problem,” he added.
Senoff said his firm currently represents other
counties in the suit, including Montgomery County
and Delaware County.
The county will not pay any immediate fees to Anapol
Weiss, but the firm will receive one third of any
amount the county would receive from a successful
verdict or settlement.
The agreement passed with a 5-4 vote, with one
commissioner concerned over a lack of time they had
to review the proposal. Another questioned whether it
should be the county’s responsibility or the state’s to
seek remediation for homes that contain lead paint.
Commissioner Amanda Holt wanted more time to
review the agreement and believed that the board
should have investigated other potential options—like
low-interest loans—for remediation.
“I think we’re kind of rushing into this. We should
take more time to review this particular issue,” she
said. “To me, there’s just a whole lot of uncertainty
here. There’s a lot more to look at, and so for that
reason, I do not believe we should move forward with
this motion at this time.”
86a
Commissioner Percy Dougherty, like Holt, voted
against the agreement. He stressed that the state
should address issues like lead paint remediation and
the opioid crisis.
“The state should be leading the charge in all these
cases,” he said.
Geoff Brace was one of five commissioners who voted
in favor of the agreement.
“Outside of the city of Allentown, there’s no
remediation being done,” Brace said. “I’m willing to
make that investment right now, knowing that a
generation later there might be public benefit.”
“Litigation, as unseemly as it might be in many
instances, is a course that we can take,” he added.
Brace, Brown, Marc Grammes, Dan Hartzell and Amy
Zanelli were the commissioners who voted in favor of
the agreement. Daugherty, Holt, Chairman Marty
Nothstein and Brad Osborne voted against it.
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OR REDISTRIBUTED.
87a
Lehigh County demands paint industry help
with lead abatement
Delaware, Lehigh and Montgomery counties have
agreed to pursue litigation against paint
manufacturers, arguing they hold some
responsibility to pay for the remediation of lead
paint present in thousands of homes in the three
counties. (Getty Images)
By Tom Shortell
Of The Morning Call
OCTOBER 1, 2018
Nearly a century ago, manufacturer Dutch Boy
released a coloring book highlighting the virtues of
lead paint.
The Dutch Boy’s Lead Party, “a paint book for girls
and boys,” showed the company’s mascot painting and
playing with lead products.
88a
The paint brand hasn’t existed for 40 years. But now,
Lehigh County plans to use that coloring book and
other ads directed at children as evidence in a lawsuit
against the paint industry for peddling a product it
knew was toxic.
County commissioners voted 5-4 Wednesday on
resolutions to hire the Philadelphia law firm Anapol
Weiss to sue in county court some of the world’s
biggest paint manufacturers, perhaps including
ConAgra and Sherwin-Williams.
Unlike class-action lawsuits, the litigation would not
seek money for damages people suffered because of the
companies’ products. Instead, the county intends to
argue the paint constitutes a public nuisance and the
manufacturers bear responsibility for abating homes
with lead paint. The companies marketed the paint to
families and children despite knowing the serious
health risks their product presented.
By Anapol Weiss’ estimate, it would cost $39 million
to remove or make safe lead paint in 4,728 Lehigh
County housing units. That’s how many county homes
the firm believes have lead paint and at least one child
present. Another 4,300 homes have lead paint but no
children living in them, said David Senoff, an attorney
and shareholder at the firm.
“Taxpayers could never afford to have this abated,”
Senoff said. “To attempt it would be a herculean task.”
Under the contract approved by commissioners,
Anapol Weiss would be paid only if successful in the
case, receiving 33 percent of any award. Senoff said
he would ask a judge to order paint manufacturers to
pay the county’s legal fees in addition to any
remediation amount.
89a
The lawsuit is based on litigation that has wound its
way through the California legal system for 18 years.
Raising similar arguments, 10 California cities and
counties won $1.15 billion in damages in 2013 against
Sherwin-Williams, NL Industries and ConAgra. An
appellate court supported most of those findings in
2017, but reduced the damages to $600 million after
determining the companies had stopped advertising
lead paint for residences by 1950, reducing their
liability.
The damages were reduced again in
September to $409 million.
The case is ongoing in California. NL Industries
agreed to a $60.2 million settlement with the plaintiffs
in May, but a judge rejected the settlement terms
Sept. 18.
Public nuisance laws are the linchpin of such cases.
Such laws grant governments the authority to address
matters that interfere with the safety, health or
welfare of numerous people within a community. In
these cases, governments can petition courts to declare
the matter a public nuisance and require the
responsible party to address it.
In the 1970s, the Pennsylvania Supreme Court ruled
an abandoned coal mine in Cambria and Indiana
counties was a public nuisance because mine runoff
was polluting the Susquehanna River. Although state
laws dealing with waterway protection did not require
the mine’s owner to act, the court ruled the pollution
was a public nuisance so the company bore
responsibility for the abatement.
Senoff argues paint companies should be held to a
similar standard. Companies knew as early as 1904
lead was a serious threat to human health, but
90a
continued to use it in their paint for decades. Although
they’ve been barred from selling lead paint to the
American public for 40 years, it remains in millions of
homes.
“The paint manufacturers were the ones that
specifically put the lead into the paint knowing that
there were health hazards. They continued to sell it,
and they continued to sell it without warning,
advertising these kind of products without warning,”
Senoff said.
Similar cases, however, have failed to gain footholds.
Governments in Ohio, Illinois and Missouri filed
lawsuits against paint manufacturers, but those cases
were dismissed. A case in Rhode Island was initially
successful, but then struck down by the state’s
Supreme Court.
The New Jersey Supreme Court rejected a similar suit
in 2008 for a number of reasons, including that lead
paint was a matter of consumer protection, meaning
individuals, not local governments, had to press the
case against paint companies.
Paint manufacturers have presented a host of
defenses in these cases that vary depending on the
company. Generally, however, the companies have
argued that local governments do not have the
standing to pursue the cases under common nuisance
laws. Even if they do have standing, they argue no one
can be held accountable because there’s no way to
prove whose lead paint is still in the homes.
The companies have also argued the liability lies with
property owners since they applied it to their homes
and the lack of maintenance is what allows the paint
91a
to chip and flake. If left undisturbed, they argued, the
paint poses no health risk.
Tony Dias, counsel to Sherwin-Williams, said it was
disappointing the counties have pursued litigation,
noting the company already contributes millions of
dollars to lead poisoning prevention programs. The
onus should be on irresponsible landlords who refuse
to address the lead hazards in their own properties, he
said.
The lawsuits, he contended, would be unsuccessful in
Pennsylvania as they have in most jurisdictions,
resulting in a waste of time and money for all sides.
“The counties should reconsider this misguided effort,
and instead work collaboratively to address problems
arising from neglected lead paint in older, poorly
maintained homes. Existing laws designed to protect
children living in substandard housing, if enforced,
would eliminate lead hazards created by the lack of
normal and appropriate maintenance,” Dias said.
Deborah Maxson, a spokeswoman for ConAgra and
Sherwin-Williams, echoed those remarks.
“The companies have always acted responsibly.
Litigation does not help the kids. It helps trial
lawyers,” she said.
The failure of those other cases hasn’t stopped Public
Citizens of Children and Youth, a Philadelphia
nonprofit that advocates for children’s health care and
education, from latching onto the California ruling as
a possible model for Pennsylvania. The Pennsylvania
Department of Health says 69 percent of homes in the
state were constructed before the federal ban on lead
paint in 1978, all but guaranteeing lead hazards
remain.
92a
The Valley’s average housing unit dates to 1966, and
the region’s three cities are full of old homes, according
to the Lehigh Valley Planning Commission. In
Bethlehem, 72.7 percent of the housing stock is more
than 50 years old. That figure jumps to 75.6 percent
in Allentown and 84.4 percent in Easton, the LVPC
found.
Colleen McCauley, PCCY’s health policy director, said
federal funding to remove or neutralize those lead
hazards has dropped over the years. To compensate,
the nonprofit has sought other sources of funding,
including by suing the paint industry. They recruited
Anapol Weiss to take the case, and Montgomery,
Delaware and Lehigh counties have signed on for the
litigation. Each county would attempt to try its case
separately in its county court.
“There has been some success. We’ve got a partner
who’s willing to take on the risk to proceed with this
case,” she said, referring to Anapol Weiss. “We don’t
feel like we have very much to lose. We’ll ... have the
court look at the precedent set in California, and we’ll
roll the dice and see if we can build a strong case here.
You don’t know until you try,” McCauley said.
That desperation for change is driven by the
undisputed dangers posed by lead. The federal
Centers for Disease Control and Prevention has found
lead can cause irreversible damage, ranging from
abdominal and digestive issues, lower IQs and fatigue,
among a host of other problems.
Young children and infants are at particular risk from
lead, which causes developmental delays. Lead paint
in homes can flake off walls and be inhaled or fall to
the floor as a dust. Small children are especially at
93a
risk. No safe blood lead level in children has been
identified, according to the CDC.
A 2015 report by the Pennsylvania Department of
Health—the most recent report released by the state
on the subject—found that 9,643 children under the
age of 6 tested positive for elevated levels of lead in
their blood. That amounts to about 6.9 percent of all
children tested for lead poisoning statewide.
The same report found that 5.7 percent of Lehigh
County children in the same age range tested positive
for elevated blood lead levels. In Northampton
County, 4.9 percent of tested children came back
positive.
Getting rid of that paint or making sure it’s safely
locked away behind layers of nontoxic material isn’t
cheap.
Because even lead paint dust can be
dangerous, federal regulations mandate that only
specially trained contractors can remove or
encapsulate it. Senoff said the average remediation in
Lehigh County would cost $8,269 per household.
Ellen Wertheimer, a professor at Villanova
University’s Charles Widger School of Law, and Mark
Rahdert, a professor at Temple University’s Beasley
School of Law, agreed the counties were pursuing
novel arguments untried in Pennsylvania.
If
successful, the ruling would have enormous
ramifications for other companies with products that
endangered public health, such as cigarette
manufacturers, Wertheimer said.
“I do think [county governments] have a strong
argument,” she said. “I think they have a very
interesting argument that is very worth making.”
94a
It remains to be seen if the courts would be willing to
entertain the lead paint lawsuits under a public
nuisance law, but Rahdert thinks there’s a solid case
to be made.
“Similar cases of public nuisance have worked for
hazardous waste, water pollution, air pollution,” he
said. “It is not an entirely unusual or unheard of type
of claim.”
tshortell@mcall.com
Twitter @TShortell
610-820-6168
For The Record
OCT. 9, 2018, 2:55 PM
This article has been updated to reflect recent updates
to lead paint litigation in California. Last month, a
California Superior Court judge has since reduced the
total liability of paint manufacturers from $600
million to $409 million. The same judge rejected a
settlement agreement between NL Industries and the
municipalities.
Copyright©2018, The Morning Call
95a
EXHIBIT B
96a
COUNTY OF LEHIGH, PENNSYLVANIA
RESOLUTION NO. 2018-51
SPONSORED BY COMMISSIONER BROWN
REQUESTED DATE: SEPTEMBER 5, 2018
APPROVING A REPRESENTATION
AGREEMENT WITH ANAPOL WEISS
WHEREAS, § 801.1(B) of the Administrative Code
of the County of Lehigh (County) requires resolution
approval for nonbid professional service agreements
over ten thousand dollars ($10,000.00); and
WHEREAS, the Department of Administration and
the County Solicitor request that the County of Lehigh
enter into an agreement with Anapol Weiss to serve as
counsel for the County for claims against SherwinWilliams Company, NL Industries f/k/a National Lead
Company.
NOW, THEREFORE, BE IT RESOLVED BY
THE BOARD OF COMMISSIONERS OF THE
COUNTY OF LEHIGH, PENNSYLVANIA THAT:
1. The proposed agreement for professional
services with Anapol Weiss, and the Addendum
thereto, marked Exhibit “A” attached hereto and made
a part hereof by this reference, are hereby approved.
2. The proper officers and other personnel of
Lehigh County are hereby authorized and empowered
to take all such further action, including any necessary
transfers of funds, and execute additional documents
as they may deem appropriate to carry out the purpose
of this Resolution.
3. Any resolution or part of resolution conflicting
with the provisions of this resolution is hereby
repealed insofar as the same affects this resolution.
97a
4. The County Executive shall distribute copies of
this resolution to the proper officers and other
personnel whose further action is required to achieve
the purpose of this resolution.
ADOPTED BY THE LEHIGH COUNTY BOARD
OF COMMISSIONERS on the ____ day of ______,
2018; by the following vote:
Commissioners
AYE
NAY
Geoff Brace
Nathan Brown
Percy H. Dougherty
Marc Grammes
Dan Hartzell
Amanda Holt
Marty Nothstein
Brad Osborne
Amy Zanelli
ATTEST: ______________________________
Clerk to the Board of Commissioners
98a
COUNTY OF LEHIGH CONDITIONS TO
REPRESENTATION AGREEMENT
WITH
ANAPOL WEISS
The acceptance by the COUNTY OF LEHIGH
(“COUNTY”) of the Agreement of ANAPOL WEISS
(“PROVIDER”), attached hereto as Exhibit “A”, is
contingent upon the Agreement including the
following conditions pursuant to the COUNTY’S
Administrative Code, and the parties hereby agree to
do so:
I.
TAXES
A. The PROVIDER hereby certifies, as a condition
precedent to the execution of this contract and as an
inducement for the COUNTY to execute same, that it
is not “delinquent” on any taxes owed to the COUNTY.
“Delinquent” is hereby defined as the point in time at
which the collection of the tax becomes the
responsibility of the Lehigh County Tax Claim
Bureau.
B. The PROVIDER further agrees, as a specific
condition of this contract, that it shall remain current
on all of the taxes it owes to the COUNTY. Should the
PROVIDER become delinquent on any taxes it owes to
the COUNTY during the term of this contract, the
PROVIDER may be deemed to be in breach of this
contract by the COUNTY and, in addition to any other
remedies at law for such breach, the PROVIDER
hereby specifically agrees and authorizes the
COUNTY to apply all funds when due to the
PROVIDER directly to the taxes owed to the COUNTY
until said taxes are paid in full.
99a
C. In the event the PROVIDER becomes
delinquent, it hereby authorizes the COUNTY to make
payments to the taxing authority for the COUNTY to
bring the PROVIDER’S county taxes current.
II.
COMPENSATION
The PROVIDER hereto agrees that any and all
payments due from the COUNTY as required under
the terms of this contract, are contingent upon the
availability of the appropriated funds. If any or all of
the funds which are due to the PROVIDER emanate
from State or Federal sources, payment is also
contingent upon the COUNTY receiving such moneys
from the State or Federal Government.
III.
UNDUE INFLUENCE
The PROVIDER agrees not to hire any COUNTY
Personnel who may exercise or has exercised
discretion in the awarding, administration, or
continuance of this contract for up to and including one
year following the termination of the employee from
COUNTY service. Failure to abide by this provision
shall constitute a breach of this contract.
IV.
OPEN AND PUBLIC PROCESS
Disclosures required by Section 801.5 (Open and
Public Process) of the Lehigh County Administrative
Code, a copy of which PROVIDER acknowledges has
been provided to it. The PROVIDER shall agree that
Contributions will not be made which would render
the PROVIDER ineligible to be considered for the
contract.
The contract shall require that the
PROVIDER disclose any Contribution made by the
PROVIDER, sub-contractor or Consultant to any
Candidate for Elective County Office or to an
Incumbent during the term of the contract and for one
100a
(1) year thereafter. Such disclosures shall be made in
writing on a form provided by the COUNTY, and shall
be delivered to the COUNTY, within (5) business days
of the Contribution. This COUNTY disclosure form
shall be delivered by the PROVIDER to the COUNTY
contact person identified in the contract, who shall
forward copies to the Clerk to the Board of
Commissioners, the Controller and the County Fiscal
Officer.
V.
NON-DISCRIMINATION CLAUSE
In carrying out the terms of this Agreement, both
parties agree not to discriminate against any employee
or client or other person on account of race, color,
religion, gender, national origin, age, marital status,
political affiliation, sexual orientation, gender identity
or expression, or physical or mental disabilities as set
forth in the Americans With Disabilities Act of 1990.
PROVIDER and COUNTY shall comply with the
Contract Compliance Regulations of the Pennsylvania
Human Relations Commission, 16 Pa. Code
Chapter 49, with any pertinent Executive Order of the
Governor and with all laws prohibiting discrimination
in hiring or employment opportunities.
The provisions of this section must also be included
in any sub-contract PROVIDER enters into to perform
the scope of this Agreement.
VI.
RIGHT-TO-KNOW
A. PROVIDER understands that this Agreement
and records related to or arising out of this Agreement
are subject to requests made pursuant to the
Pennsylvania
Right-to-Know
Law,
65
P.S.
Sections 67.101-3104, (“RTKL”).
101a
B. If the COUNTY needs PROVIDER’S assistance
in any matter arising out of the RTKL related to this
Agreement, COUNTY shall notify PROVIDER using
the legal contact information provided in this
Agreement. PROVIDER, at any time, may designate
a different contact for such purpose upon reasonable
prior written notice to COUNTY.
C. Upon written notification from the COUNTY
that it requires PROVIDER’S assistance in responding
to a request under the RTKL for information related
to this Agreement that may be in PROVIDER’s
possession, constituting, or alleged to constitute, a
public record in accordance with the RTKL
(“Requested Information”) PROVIDER shall:
1. Provide the COUNTY, within ten (10)
calendar days after receipt of written notification,
access to, and copies of, any document or
information in PROVIDER’s possession arising out
of this Agreement that the COUNTY reasonably
believes is Requested Information and may be a
public record under the RTKL; and
2. Provide such other assistance as the
COUNTY may reasonably request, in order to
comply with the RTKL with respect to this
Agreement.
D. If PROVIDER considers the Requested
Information to include a request for a Trade Secret or
Confidential Proprietary Information, as those terms
are defined by the RTKL, or other information that
PROVIDER considers exempt from production under
the RTKL, PROVIDER must notify the COUNTY and
provide, within seven (7) calendar days of receiving
the written notification, a written statement signed by
102a
a representative of PROVIDER explaining why the
requested material is exempt from public disclosure
under the RTKL.
E. The COUNTY will rely upon the written
statement from PROVIDER in denying a RTKL
request for the Requested Information unless the
COUNTY determines that the Requested Information
is clearly not protected from disclosure under the
RTKL. Should the COUNTY determine that the
Requested Information is clearly not exempt from
disclosure, PROVIDER shall provide the Requested
Information within five (5) business days of receipt of
written notification of the COUNTY’s determination.
F. If PROVIDER fails to provide the Requested
Information within the time period required by these
provisions, PROVIDER shall indemnify and hold the
COUNTY harmless for any damages, penalties, costs,
detriment or harm, including attorney’s fees, that the
COUNTY may incur as a result of PROVIDER’s
failure, including any statutory damages assessed
against the COUNTY.
G. The COUNTY will reimburse PROVIDER for
costs associated with complying with those provisions
only to the extent allowed under the fee schedule
established by the Office of Open Records.
H. PROVIDER may file a legal challenge to any
COUNTY decision to release a record to the public
with the Office of Open Records, or in the
Pennsylvania Courts; however, PROVIDER shall
indemnify the COUNTY for any attorney’s fees and
costs incurred by the COUNTY as a result of such a
challenge and shall hold the COUNTY harmless for
any damages, penalties, costs, detriment or harm that
103a
the COUNTY may incur as a result of PROVIDER’s
actions, including any statutory damages assessed
against the COUNTY, regardless of the outcome of
such legal challenge.
As between the parties,
PROVIDER agrees to waive all rights or remedies that
may be available to it as a result of the COUNTY’s
disclosure of Requested Information pursuant to the
RTKL.
I. PROVIDER’s duties relating to the RTKL are
continuing duties that survive the expiration of this
Agreement and shall continue as long as PROVIDER
has Requested Information in its possession.
COUNTY OF LEHIGH
ANAPOL WEISS
BY:
Title: County Executive
Date:
BY: /s/ David S. Senoff
Title: Shareholder
Date: August 28, 2018
104a
EXHIBIT “A”
105a
David S. Senoff, Esquire
One Logan Square
130 N. 18th Street, Suite 1600
Philadelphia, PA 19103
dsenoff@anapolweiss.com
(215) 790-4550 Direct Dial
(215) 875-7733 Direct Fax
August 28, 2018
Phil Armstrong, County Executive
Lehigh County
17 South 7th Street
Allentown, PA 18101
Re: Lead Paint Litigation
Dear Mr. Armstrong:
This letter is to confirm our agreement of
representation. You are retaining the firm of Anapol
Weiss (hereinafter “the Firm”) to represent Lehigh
County (hereinafter “the County”) in connection with
the County’s claims against Sherwin-Williams
Company, NL Industries f.k.a. National Lead
Company, and others (hereinafter “SherwinWilliams”) relating to the County’s claims for
remediation, Declaratory relief, and public nuisance
resulting from the manufacturing, marketing and use
106a
of lead paint against Sherwin-Williams (the “Claims”).
This letter sets forth the terms of the Contingent Fee
Agreement, which applies to our representation.
It is agreed that the County will pay the Firm a
contingency fee of thirty-three and one-third percent
(33 1/3%) of the gross amount recovered by way of
settlement, verdict or otherwise.
It is further agreed that the County will reimburse
the Firm from its portion of any settlement or verdict
all litigation and investigation costs and expenses
(“Expenses”) incurred in connection with our
representation of the County. (“Expenses” are more
fully defined below).
Should no proceeds be recovered by
settlement, verdict or otherwise, the Firm shall
have no claim against the County for any
services rendered herein or for any expenses
incurred.
The Firm shall have full power to represent the
County in the prosecution of the Claims as may appear
to us to be in the County’s best interest subject to
regular and reasonable consultation with the County,
but in no event shall the suit be settled without
the County’s expressed consent.
“Expenses” are those costs which relate to the
investigation and prosecution of your claim, and
include but are not limited to: computerized legal
research, expert fees, arbitrators’/mediators’ fees,
investigators’
fees,
telephone
toll
charges,
photography costs, court fees, deposition costs,
photocopying costs, and any other necessary expenses
in this matter, as may be incurred by the County’s
behalf by the Firm or others in connection with the
107a
prosecution of this claim. These Expenses will be
reimbursed by the County to the Firm from your
portion of any settlement or verdict. These Expenses
will be reimbursed by the County in addition to the
contingency fee described above.
In the event any Court orders any defendant
in this matter to reimburse the County any
amount of money for attorneys’ fees or costs
(Expenses) of litigation, the amount of money
paid by the defendants by way of attorneys’ fees
or costs will separately be set-off against the
gross amount of the contingent fee and the gross
amount of all Expenses incurred in connection
with the Firm’s representation of the County.
It is understood that the County will give its full
cooperation to the Firm in prosecuting this claim or
suit. At any time during the prosecution of the
County’s Claim, the Firm may withdraw its
representation of the County in accordance with the
Rules of Professional Conduct.
If the County
discharges the Firm, the County understands that this
agreement is meant to bind and benefit the heirs and
successors of each of the parties to this agreement. To
that end, the County hereby grants the Firm a lien on
any claims, causes of action or recovery that the
County obtains, whether through settlement,
judgment or otherwise relating to the subject of this
agreement. The lien will be based upon the amount of
our attorneys’ fees billed at our then prevailing hourly
rates, together with any expenses of the litigation
outstanding at the time the County discharges the
Firm. This lien will not apply if we withdraw as
your counsel purely out of our own choice. This
lien only applies in the event the County
108a
discharges the Firm prior to any conclusion of
this case.
It is understood and agreed that the Firm cannot
and has not warranted nor guaranteed the outcome of
the case, and the Firm has not represented to the
County that the County will recover any funds or
compensation. In the event of an unfavorable result,
either partially or wholly, the Firm is not obligated to
file an appeal on behalf of the County. The County will
be advised of the time deadlines for filing or
responding to an appeal if such appeal is not to be
prosecuted or defended by the Firm.
In retaining the Firm, the County also authorizes
the Firm to retain and affiliate with additional counsel
in this matter. Our affiliation with all such counsel
will be subject to the terms of this agreement, and the
County will not be liable for any additional attorneys’
fees and expenses other than as stated above, the
County has authorized us to associate further counsel
should we deem it necessary.
This letter sets forth our entire agreement
regarding our representation in connection with this
matter. This will confirm that the County through its
Executive, has read this agreement and that the Firm
has explained this agreement to your complete
satisfaction. This agreement shall not be amended nor
modified nor any of its provisions waived, unless in
writing signed by both the County and the Firm. This
agreement supersedes all prior agreements.
If
this
letter
agreement
confirms
our
understanding, kindly sign it and return it to me
promptly. I will then sign it on behalf of the Firm and
send you a fully executed copy. Should the County
109a
have any questions about this Agreement, please do
not hesitate to contact me.
Very truly yours,
/s/ David S. Senoff ______
DAVID S. SENOFF
DSS/cmm
ACCEPTED AND AGREED TO:
____________________________
Phil Armstrong, County Executive
Dated: September
, 2018
CONFIRMATION OF AGREEMENT:
____________________________
David S. Senoff, Esquire
Dated: September
, 2018
110a
EXHIBIT C
111a
IN THE COURT OF COMMON PLEAS
OF MONTGOMERY COUNTY, PENNSYLVANIA
THE COUNTY OF
MONTGOMERY
vs.
NO. 2018-23539
ATLANTIC RICHFIELD
COMPANY
NOTICE TO DEFEND - CIVIL
You have been sued in court. If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
complaint and notice are served, by entering a written
appearance personally or by attorney and filing in
writing with the court your defenses or objections to
the claims set forth against you. You are warned that
if you fail to do so the case may proceed without you
and a judgment may be entered against you by the
court without further notice for any money claimed in
the complaint or for any other claim or relief requested
by the plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE
YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER,
THIS OFFICE MAY BE ABLE TO PROVIDE YOU
WITH INFORMATION ABOUT AGENCIES THAT
MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCED FEE OR NO FEE.
112a
LAWYER REFERENCE SERVICE
MONTGOMERY BAR ASSOCIATION
100 West Airy Street (REAR)
NORRISTOWN, PA 19404-0268
(610) 279-9660, EXTENSION 201
113a
IN THE COURT OF COMMON PLEAS
OF MONTGOMERY COUNTY, PENNSYLVANIA
THE COUNTY OF
MONTGOMERY
NO. 2018-23539
vs.
ATLANTIC RICHFIELD
COMPANY
CIVIL COVER SHEET
State Rule 205.5 requires this form be attached to any
document commencing an action in the Montgomery
County Court of Common Pleas. The information
provided herein is used solely as an aid in tracking
cases in the court system. This form does not
supplement or replace the filing and service of
pleadings or other papers as required by law or rules
of court.
Name of
Plaintiff/Appellant’s
Attorney:
Class Action Suit
MDJ Appeal
DAVID S SENOFF, Esq.,
ID: 65278
Self-Represented (Pro Se)
Litigant
Money Damages
Requested
Commencement of
Action:
Amount in
Controversy:
Complaint
More than $50,000
114a
Case Type and Code
Tort:
Other
Other: PUBLIC NUISANCE
***
115a
DAVID S. SENOFF, ESQ. (NO. 65278)
HILLARY B. WEINSTEIN, ESQ. (NO. 209533)
CLAYTON P. FLAHERTY, ESQ. (NO. 319767)
ANAPOL WEISS
ONE LOGAN SQUARE
130 N. 18TH STREET, SUITE 1600
PHILADELPHIA, PA 19103
PHONE: (215) 790-4550
FAX: (215) 875-7733
dsenoff@anapolweiss.com
hweinstein@anapolweiss.com
cflaherty@anapolweiss.com
ATTORNEYS FOR PLAINTIFF
THE COURT OF COMMON PLEAS OF
MONTGOMERY COUNTY
THE COUNTY OF
MONTGOMERY
1 MONTGOMERY AVENUE
NORRISTOWN, PA 19401
PLAINTIFF,
v.
ATLANTIC RICHFIELD
COMPANY
4 CENTERPOINTE DRIVE
LA PALMA, CALIFORNIA
90623
AND
CONAGRA GROCERY
PRODUCTS COMPANY
222 W. MERCHANDISE
MART PLAZA
CHICAGO, ILLINOIS 60654.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
CASE NO. _________
CIVIL ACTION
JURY TRIAL
DEMANDED
116a
AND
E.I. DU PONT DE NEMOURS
AND COMPANY
1007 MARKET STREET
WILMINGTON, DELAWARE
19898
AND
NL INDUSTRIES, INC.
5430 LYNDON B. JOHNSON
FREEWAY
SUITE #17
DALLAS, TEXAS 75240
AND
PPG INDUSTRIES, INC.
ONE PPG PLACE
PITTSBURGH,
PENNSYLVANIA 15272
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
AND
SHERWIN-WILLIAMS
COMPANY
101 WEST PROSPECT
AVENUE
CLEVELAND, OHIO 44115
DEFENDANTS.
COMPLAINT
Plaintiff Montgomery County, Pennsylvania (the
“County”), by and through its attorneys, ANAPOL
WEISS, hereby brings this civil action seeking relief
from Defendants Atlantic Richfield Company
(“Atlantic”), ConAgra Grocery Products Company
(“ConAgra”), E.I. du Pont de Nemours and Company
117a
(“DuPont”), NL Industries, Inc. (“NL Industries”), PPG
Industries, Inc. (“PPG Industries”), and the SherwinWilliams Company (“Sherwin-Williams”) (collectively,
“Defendants”) for the abatement of an ongoing public
nuisance and health crisis created by Defendants’
decades-long manufacture, promotion, propagation,
sale, and/or distribution of lead-based paints and
pigments2
throughout
Montgomery
County,
Pennsylvania. The County avers as follows upon
personal knowledge of the undersigned and their own
acts and experiences, and as to all other matters, upon
information and belief, including investigation
conducted by its attorneys:
INTRODUCTION
1. The continued presence of poisonous, injurious
lead paint in hundreds of thousands of residences
throughout Montgomery County, Pennsylvania
constitutes an ongoing interference with the public
health, safety, peace, comfort, and convenience of the
citizenry (and, in particular, the welfare of young
children living in the County). Although residential
lead paints and pigments have been nationally
prohibited since 1978, the near-ubiquitous prior use
and availability of these noxious materials means that
the grave dangers posed by exposure continues to
plague Montgomery County to this very day. To
safeguard and enforce the public rights of its citizens,
the County has brought this civil action for the
2
As used throughout this Complaint, the term “paint” refers to
any liquid composition that converts into a solid film when
applied, in a thin layer, to many different surfaces. By contrast,
the term “pigment” refers to material that changes the color (or
other characteristics) of paint. Both may contain lead.
118a
abatement of lead paint throughout Montgomery
County’s housing stock. The defendants named herein
either played active roles in the proliferation of lead
paint throughout Montgomery County, or are the
successors-in-interest to participating entities.
JURISDICTION AND VENUE
2. This action has been commenced within the
original subject matter jurisdiction of the Montgomery
County Court of Common Pleas pursuant to 42 P.S.
§ 931.
3. Personal jurisdiction is proper in light of the
general and specific contacts Defendants maintain
with the Commonwealth of Pennsylvania. Defendants
regularly and systematically transact business within
Pennsylvania pursuant to 42 Pa.C.S. §§ 5322(a)(1)(i)–
(v). Thus, personal jurisdiction is properly exercised
over Defendants.
4. Venue is proper in this Court pursuant to PA. R.
CIV. P. 1006 as Montgomery County is a county in
which Defendants regularly and systematically
conduct business and a county in which a substantial
part of the events giving rise to the claims occurred.
5. The County is authorized to file this civil action
for the abatement of a public nuisance pursuant to PA.
CONST. ART. IX, § 2 and 16 P.S. § 3202(2.)
THE PARTIES
The County of Montgomery (Plaintiff):
6. Plaintiff, the County of Montgomery, founded in
1784, is a body corporate and politic, political
subdivision, and municipality of the Commonwealth of
Pennsylvania with its County Seat located in
119a
Norristown at the above-listed address.3 The County
is a Second-Class – A (2-A) County as defined by 16
P.S. § 210(2.1), with a population of approximately
800,000 people making it the third-most populous
county in the Commonwealth of Pennsylvania.
Accordingly, the County is a citizen of the
Commonwealth of Pennsylvania.
7. The County contains 62 separate municipalities
(or municipal corporations) comprised of various
boroughs and townships. Also contained within the
County are 23 separate public school districts, each of
which constitute a separate and distinct political
subdivision. Finally, the County also contains some
17 “unincorporated communities.”
8. The median age of the County’s housing stock
indicates that the majority of residential structures
throughout the county were built in 1965, or earlier.4
Furthermore, approximately 64.9 percent of the
housing in the County was built within one year of the
promulgation of the 1978 ban on the sale of lead paint
for residential uses, or earlier.5
9. As of 2017, the Montgomery County Planning
Commission concluded that the County contains some
3
See, e.g., 1 Pa.C.S. § 1991.
4
See, e.g., PENNA. FAIR HOUSING FINANCE AGENCY,
“Pennsylvania Housing Availability & Affordability Report,”
(September 2012), at 62, available at https://goo.gl/dHSuGj.
5
See,
e.g.,
U.S.
CENSUS,
“PHYSICAL
HOUSING
CHARACTERISTICS FOR OCCUPIED HOUSING UNITS 2017
American Community Survey 1-Year Estimates,” available at
https://goo.gl/mPw3Wn.
120a
325,735 residential structures.6
Consequently,
approximately 211,402 residential structures (and
perhaps many more) throughout the County are
implicated by this civil action, as potentially being
contaminated by poisonous lead paint as a legal and
proximate result of Defendants’ conduct
10. Contamination as the result of the inevitable
breakdown of lead paint throughout the County
constitutes an ongoing public nuisance in dire need of
abatement.
DEFENDANTS
Atlantic Richfield Company (“Atlantic”)
11. Defendant
Atlantic
Richfield
Company
(“Atlantic”) is a Delaware corporation with its
principal place of business located at 4 Centerpointe
Drive, La Palma, CA 90623. Atlantic is a corporate
citizen of both Delaware and California.
12. Atlantic is named herein as the successor-ininterest to various corporate entities that
manufactured,
promoted,
propagated,
sold,
distributed, and/or otherwise caused lead-based
paints/pigments to enter the stream of commerce in
Montgomery County, Pennsylvania, including the
Anaconda Lead Products Company (“ALPC”), the
Anaconda Sales Company (“ASC”), and the
International Smelting & Refining Company
(“IS&R”).7
6
See, e.g., MONTGOMERY COUNTY PLANNING COMM’N, “Housing
Units Built – 2017,” available at https://goo.gl/rLu2rR.
7
ALPC and IS&R consecutively owned and operated a lead
paint and pigment manufacturing plant in East Chicago, Indiana
from 1920 until 1946. Under both ownership regimes, the East
121a
13. Under Pennsylvania law, Atlantic acquired the
relevant liabilities related to the lead-based activities
of ASC, ALPC, and IS&R upon acquiring IS&R in
1977.
14. Upon information and belief, Atlantic is the
corporate successor to the above-named entities that
manufactured, sold, distributed, and/or promoted lead
paints/pigments for interior and exterior use in
households and public buildings in the County from
1920 through at least 1946.
15. Upon information and belief, Atlantic was a
member of the Lead Industries Association (“LIA”)8
from 1928 through 1971, and a member of the
National Paint Varnish and Lacquer Association
(“NPVLA”)9 from 1933 through 1944.
ConAgra Grocery Products Company, LLC
(“ConAgra”)
16. Defendant
ConAgra
Grocery
Products
Company, LLC (“ConAgra”) is a Delaware limitedliability corporation with its principal place of
business located at 222 W. Merchandise Mart Plaza,
Chicago plant produced lead-based paints and pigments which
were sold under the “Anaconda” brand name. In 1977, IS&R was
acquired by and merged into Defendant Atlantic.
8
The LIA was a national, non-profit trade association consisting
of commercial producers, purveyors, and consumers of lead-based
goods first formed in 1928. LIA declared bankruptcy in 2002 in
response to numerous lawsuits related to its long-term promotion
of lead-based products. It is currently defunct.
9
The NPVLA is a national, non-profit trade association
consisting of paint manufacturers that was first formed in 1887.
Today, it exists as the American Coatings Association (“ACA”).
122a
Chicago, IL 60654. ConAgra is a corporate citizen of
both Delaware and Illinois.
17. ConAgra is named herein as the successor-ininterest to various corporate entities that
manufactured,
promoted,
propagated,
sold,
distributed, and/or otherwise caused lead-based paints
and pigments to enter the stream of commerce in
Montgomery County, Pennsylvania, including the
W.P. Fuller & Company, the W.P. Fuller Paint
Company, and WPF, Inc. (collectively, “Fuller”).
18. Fuller established the Pioneer White Lead
Works in 1877 and thereafter continued to
manufacture, promote, propagate, sell, and distribute
various lead-based paints and pigments under the
“Pioneer” brand name at all times relevant to this civil
action.
19. Under Pennsylvania law, ConAgra acquired the
relevant liabilities related to Fuller’s lead-based
activities upon acquiring the Beatrice Company in
1993.10
20. Upon information and belief, ConAgra is the
corporate successor to the above-named entities that
manufactured, sold, distributed, and/or promoted lead
10 In 1962, W.P. Fuller & Company merged with Hunt Foods and
Industries. Fuller’s lead-based paint and pigment operations
continued under the ownership of Hunt Foods and Industries
until at least 1967. In 1968, Hunt Foods and Industries
consolidated with other corporate entities to form “NortonSimon.” In 1993, Norton-Simon merged with Beatrice U.S. Food
Corporation to form the “Beatrice Company.” Later that same
year, the Beatrice Company merged into Hunt-Wesson, Inc.
Finally, in 1999, Hunt-Wesson, Inc. changed its name to
“ConAgra Grocery Products Company” (“ConAgra”).
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paints/pigments for interior and exterior use in
households and public buildings in the County from
1894 through 1967.
21. Upon information and belief, ConAgra was a
member of the LIA from 1928 through 1958, and was
a member of the NPVLA from 1933 through 1962.
E.I. du Pont de Nemours and Company
(“DuPont”)
22. Defendant E.I. du Pont de Nemours and
Company (“DuPont”) is a Delaware corporation with a
principal place of business located at 1007 Market
Street, Wilmington, DE 19898. As such, DuPont is a
corporate citizen of Delaware.
23. DuPont is named herein as: (i) a corporate
entity that primarily manufactured, promoted,
propagated, sold, distributed, and/or otherwise caused
lead-based pigments to enter the stream of commerce
in Montgomery County, Pennsylvania; and (ii) as a
successor-in-interest to various corporate entities that
manufactured,
promoted,
propagated,
sold,
distributed, and/or otherwise caused lead-based
pigments to enter the stream of commerce in
Montgomery County, Pennsylvania, including but not
limited to the Harrison Brothers Paint Company and
the New England Oil Paint and Varnish Company.
24. Upon information and belief, DuPont
manufactured, sold, distributed, and/or promoted
(and/or is the successor-in-interest to entities that
acted similarly) lead paints/pigments for interior and
exterior use in households and public buildings in the
County from 1917 through the 1960s, including under
the terms of a contract with NL Industries.
124a
25. Upon information and belief, DuPont was a
member of the LIA from 1948 through 1958, and was
a member of the NPVLA from 1933 through 1972.
NL Industries, Inc. (“NL Industries”)
26. Defendant NL Industries, Inc. (“NL Industries”)
is a New Jersey corporation with a principal place of
business located at 5430 Lyndon B. Johnson Freeway,
Dallas, TX 75240. NL Industries is a corporate citizen
of both New Jersey and Texas.
27. NL Industries is named herein as: (i) a
corporate entity that primarily manufactured,
promoted, propagated, sold, distributed, and/or
otherwise caused lead-based pigments to enter the
stream of commerce in Montgomery County,
Pennsylvania; and (ii) as a successor-in-interest to
various corporate entities that manufactured,
promoted, propagated, sold, distributed, and/or
otherwise caused lead-based pigments to enter the
stream of commerce in Montgomery County,
Pennsylvania, including but not limited to the
Armstrong & McKelvy Lead and Oil Company, the
Carter White Lead Co., and the John T. Lewis &
Brothers Co.
28. Prior to 1971, NL Industries was known as the
“National Lead Company,” which manufactured,
promoted, propagated, sold, and distributed various
lead-based paints and pigments, including under the
“Dutch Boy” brand name.
29. Upon information and belief, NL Industries
manufactured, sold, distributed, and/or promoted
(and/or is the successor-in-interest to entities that
acted similarly) lead pigments for use in household
paints in the County from 1891 until 1978.
125a
30. Upon information and belief, NL Industries was
a member of the LIA from 1928 through 1978, and was
a member of the NPVLA from 1933 through 1977.
PPG Industries, Inc. (“PPG Industries”)
31. PPG Industries, Inc. (“PPG Industries”) is a
Pennsylvania corporation with a principal place of
business located at One PPG Place, Pittsburgh, PA
15272. As such, PPG Industries is a citizen of
Pennsylvania.
32. PPG Industries is named herein as: (i) a
corporate entity that primarily manufactured,
promoted, propagated, sold, distributed, and/or
otherwise caused lead-based paints/pigments to enter
the stream of commerce in Montgomery County,
Pennsylvania; and (ii) as a successor-in-interest to
various corporate entities that manufactured,
promoted, propagated, sold, distributed, and/or
otherwise caused lead-based paints/pigments to enter
the stream of commerce in Montgomery County,
including but not limited to the F.W. Devoe & C.T.
Raynolds Company and the Patton Paint Company.
33. Prior to 1968, PPG Industries was known as the
“Pittsburgh Plate Glass Company,” and began
manufacturing lead-based paints/pigments in 1900.11
Beginning in 1900, PPG Industries manufactured,
promoted, propagated, sold, and distributed various
lead-based paints/pigments, including but not limited
to the following brand names: “American,” “Crown,”
“C.F. Lawson & Co.,” “Eclipse Silica Lead,” “L.R
Strong & Co.,” “Le Clede,” “Pure,” “Patton’s B Z
11 See, e.g., PPG INDUSTRIES, INC., “Company History,” available
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