The U.S. Supreme Court on Monday declined to take up an effort by paint maker Sherwin-Williams to stop a Pennsylvania county’s lead paint litigation before it started.
The Justices’ unsigned order denied a cert petition from Sherwin-Williams, which sought to argue that the company could sue to stop Delaware County from signing a contingency agreement with an unnamed law firm that had sued it in other counties over its past sale of lead-based paint.
The Ohio-based company has faced litigation in recent years over its past sale of lead-based paint and pigments, including a $6 million 2019 Wisconsin jury verdict against it and other companies in favor of three men diagnosed with lead poisoning as children. The Seventh Circuit overturned that win in April, finding the district court had impermissibly expanded Wisconsin liability law by holding companies liable in their position as paint makers and not just as manufacturers of the underlying lead-based pigments.
Seeking to head off similar litigation in Pennsylvania, Sherwin-Williams filed suit in the state’s Eastern District in 2018 seeking a declaratory judgment that Delaware County’s contingency agreement and the mere threat of a nuisance suit were improper.
In the Pennsylvania case, the Third Circuit said in July 2020 that there were too many unknowns to rule in the company’s favor before Delaware county had even filed its allegedly imminent suit, where the paint maker’s injuries were still “hypothetical and conjectural.”
Sherwin-Williams had argued that the mere existence of the potential suit had chilled its First Amendment rights to advertise its products, join trade associations or lobby the government, because the suit would likely focus on the company’s past exercise of those rights in relation to lead paint. But the Third Circuit had said such “generalized allegations” of chilled speech were not enough to grant it standing to sue Delaware County.