A major tool in legal activism against manufacturers is the misuse of tort law, which is increasingly taking the form of filing lawsuits based on “public nuisance” claims. By definition, “public nuisance” is an act or omission that inconveniences or damages the community.

Activists have used the word “inconvenience” as a hook to blur beyond recognition the line between what is actually a valid tort claim and what a special interest simply doesn’t like. This has cornered many manufacturers over the years into paying exorbitant legal fees on cases that should not have been filed in the first place.

Today, the Manufacturers’ Accountability Project (MAP) begins a new series exploring some examples of these politically motivated lawsuits threatening manufacturing. We begin with California v. Atlantic Richfield Co.

This case took shape when the law firm Motley Rice started shopping around a lawsuit against paint manufacturers—hoping to score a large cut of any settlement or award—and found a sympathetic ear in Rhode Island’s then-attorney general Sheldon Whitehouse. The firm sought to force the manufacturers to remediate lead paint that had been manufactured and used decades earlier. Motley Rice argued that the manufacturers should cover the cleanup costs (estimated at $2.4 billion in Rhode Island) because they had produced and promoted the offending product. Their argument was perplexing because, as the New York Times reported:

“None of the paint makers had sold a drop of lead-based residential paint – in Rhode Island or anywhere else in the United States – for nearly 30 years. There is also no proof that their paint was actually used on a wall in the state.” 

Lower courts sided with the plaintiffs, but the Rhode Island Supreme Court eventually overturned the verdict, ruling that the paint manufacturers had no control over how their products were used and writing, “public nuisance law simply does not provide a remedy for this harm.” The law firm then tried its luck, unsuccessfully, in several other states before landing in California, where it finally got traction.

On November 14, 2017, in the People v. ConAgra et al., a three-judge panel in California upheld the lower court’s public nuisance ruling in California v. Atlantic Richfield Co. that will have major implications for manufacturers of every stripe. This ruling is a stretch of tort law that could be used to blame manufacturers for a variety of different social ills without requiring proof that the company being held liable in the case was actually the one responsible for the harm in question. And these claims can be applied even if manufacturers stopped making the product decades ago, as was the case with the paint manufacturers.

Importantly, this ruling, and others like it that we will highlight through this blog series, do more to line the pockets of the plaintiffs’ lawyers than they do to protect consumers.