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ICYMI – NAM General Counsel Linda Kelly: SCOTUS Decision Likely to Encourage Efforts to Distort Public Nuisance Law

Municipalities across the country are bringing public nuisance lawsuits against manufacturers, seeking to win major paydays by holding them liable for perfectly legal business conduct and operations. Many sectors and companies have found themselves the target of this baseless litigation, from paint companies to energy manufacturers. In all instances, the claims are meritless and represent nothing more than politically-motivated attacks on manufacturers and hardworking American manufacturing workers.

This was the message of a recent Law360 op-ed from National Association of Manufacturers General Counsel Linda Kelly. Kelly explains why these lawsuits are more likely to become more common following the Supreme Court’s regrettable decision not to review a California court’s decision finding several companies liable for removing legally sold lead paint:

[T]his lawsuit was not conceived because of any independent determination by the municipalities that were the plaintiffs in this case that a serious health crisis existed. It was created by private plaintiffs attorneys who essentially hatched a business enterprise to sell the cause of action to cities, counties and states that would agree to hire them on a contingency fee basis and share in any recovery.”

Kelly also explained why the court’s failure to review the case is so dangerous, outlining the troubling implications it could have for companies working in any manufacturing sector:

With the doctrine of public nuisance transformed into an unbridled tort, it is easy to imagine how it can be applied to many challenges facing states and municipalities with budget issues. It is only a matter of time before plaintiffs attorneys begin trying to convince public officials in jurisdictions all over nation to sue companies for manufacturing and selling products that were legal and regulated at the time of sale, but can now be retroactively transformed into public nuisances.”

While she lamented the court’s actions in this case, Kelly said it may soon be presented with a new chance to put a check on a flawed application of tort law:

It is unfortunate that the Supreme Court did not seize the opportunity to put an end to this travesty. Their decision to not act in this instance is likely to embolden further efforts to distort the law of public nuisance, but perhaps the court will soon have a new chance to stop it.