Sherwin-Williams Seeks to Upend Lead Paint Nuisance Ruling

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By Peter Hayes

Sherwin-Williams Co. asked a California appeals court to reconsider its decision to uphold but trim a lead paint public nuisance ruling.

There was insufficient evidence that Sherwin-Williams, NL Industries Inc. and ConAgra Grocery Products Co. promoted lead paint for interior residential use, the company said in its motion for rehearing ( People v. ConAgra , Cal. Ct. App., No. H040880, petition for rehearing filed 11/29/17 ).

And there was no showing that Sherwin-Williams actually knew that lead paint posed a health hazard to children, the company said.

The case could have a broad impact beyond California, affecting public nuisance litigation in a wide range of areas, from climate change to opioids, observers say.

The appeals court ruled Nov. 14 that a $1.15 billion trial court order against the companies must be recalculated, but upheld the liability finding.

It was the first appeals court decision to at least partially affirm a lead paint public nuisance award. Though the decision is a partial victory for the companies, the court found sufficient evidence to support “wrongful promotions” of lead paint knowing it to be harmful before 1951.

Santa Clara County and nine other California cities and counties sued the manufacturers in March 2000.

ConAgra and NL Industries filed separate motions for rehearing.

Cotchett, Pitre & McCarthy LLP and Motley Rice LLC represent the cities and counties.

Jones Day and Horvitz & Levy LLP represent Sherwin-Williams.

Reed Smith and Skadden, Arps, Slate, Meagher & Flom LLP represent ConAgra.

McManis Faulkner, Bartlit Beck Herman Palenchar & Scott LLP, and Snell & Wilmer LLP represent NL Industries.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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