The RI Lead Paint Case: Sherwin-Williams Versus DuPont?
Carroll Andrew Morse
According to a report published by Legal Newsline, paint manufacturer Sherwin-Williams wants the Rhode Island courts to take a closer look at how DuPont's lead-paint agreement money is being spent, and what that says about what the costs of lead remediation should be...
Sherwin-Williams is requesting that two portions of DuPont's settlement with the State be removed because they serve only Lynch's interests. DuPont settled before the State's trial against several paint companies, three of which were found liable for creating a public nuisance when they manufactured lead paint.
Sherwin-Williams filed two motions Wednesday -- one to value the DuPont settlement and another to stay the lead paint abatement process ordered by Superior Court Judge Michael Silverstein.
"In addition to valuing the overall DuPont settlement, Sherwin-Williams also moves to disgorge two monetary amounts from the settlement that were improperly diverted to two purely private purposes, to satisfy either the Attorney General's or the State's counsel's private interest," attorneys for Sherwin-Williams wrote.
In
their filing, Sherwin-Williams' attorneys repeatedly draw attention to several figures associated with the DuPont's "settlement" (which, I believe,
DuPont still claims is not a settlement), taking the position that only $4.25 million of $10 million or $12 million that DuPont agreed to pay out is going directly to remediate lead-affected homes in Rhode Island, 600 homes in total. On its surface, much of the filing is about making sure that Sherwin-Williams is not charged a second time for work that DuPont is supposed to be responsible for.
The larger goal of bringing this matter to the attention of the court, however, may be to help establish that Rhode Island Attorney General Patrick Lynch's proposed remediation figure is inflated. AG Lynch would like the three defendants found liable for creating a lead-paint nuisance in Rhode Island (Sherwin Williams, NL Industries, Millenium Holdings) to pay a total of $2.4 billion dollars to remediate 240,000 homes. However by Sherwin-Williams' reasoning, DuPont has been assessed a maximum figure of about $7000 per home ($4.25 million divided by 600, and I say maximum because they are asking for the DuPont settlement to be officially valued by the court, and I don't think they'd be doing that if they thought the $7000-per-home assessment was going to go significantly up). Multiply the 240,000 homes in Rhode Island needing to be remediated (actually 239,400 by SW's estimate) by $7000, and you arrive at a total of about $1.7 billion dollars.
That's a $700 million difference between the Attorney General's number and the number being backed out by Sherwin-Williams. As one of three defendants potentially responsible for financing a remediation program, that's a potential savings of over $200 million for Sherwin-Williams. For a regular person or a small business, a $200 million reduction in the amount owed for anything would be huge, but for a big company like Sherwin-Williams, it's probably not a enough of a reduction to be considered the best case outcome. It's pretty clear that Sherwin-Williams is laying the groundwork to use the DuPont "settlement" to argue that they owe significantly less (should they be unable to get the verdict completely overturned), but not yet clear to us legal laypeople what the full chain of their reasoning will be.
Andrew,
Is not Jack McConnell's multi-multi-multi-million dollar legal 'fee' directly tied to the $$ number Pat Lynch can get the court to agree upon? Would this be the same Jack McConnell who's Treasurer of the Rhode Island Democratic party? No wonder business won't come to this state. The stench wafts for miles and miles.
Yet another system that is corrupt through and through!
Huh. Would ya look at that. "John J. McConnell, Jr. Esq" is the Treasurer of the RI Dem Party. And there is a "John J. McConnell, Jr. Esq" in the law firm Motley Rice, whom the Attorney General brought in to try the lead paint case for a contingency fee of 16%. Treasurer in more ways than one!
Another thing, Tim. Unlike the AG's race five years ago, the Democrat gubernatorial nomination is by no means a lock for the brother of the Democrat Party Chairman. And as of last month, Frank Caprio had ten times as much in his campaign fund as Patrick Lynch.
The next governor's race is a long way away and a lot will happen between now and then. But it is not unreasonable for Patrick Lynch to be looking for his next gig. And where better to go than the law firm to whom he handed - or tried like mad to hand - 16% of billions? And it would be ... well, just rude of them not to offer Mr. Lynch a signing bonus (if that lead paint case works out the right way).
[A disclaimer for twitchy lawyers, chairmen and Attorneys General: the above is speculation on my part sparked by Tim's comment about the new coziness between the RI Democrat Party and Motley Rice, LLC.]
(Thank you for posting this item, Andrew.)
Let us remember that the lead paint case was brought by the prior AG (Whitehouse) and then appealed by the present AG (Lynch) strictly for political aggrandizement by warping the public nuisance law in a way that was never intended but is more than a little frightening. And let us remember that Motley Rice/the AG never proved that any leaded paint sold by the four defendants was on the walls or doors of properties which lead-poisoned children.
In short, the AG was able to hold four companies responsible for a "crime" which he did not prove that they committed.
I sincerely hope the lead paint companies fully win their appeal. This case was a serious abuse of the Attorney General's power solely for the purpose of making the office holders look good. And the verdict, while well-intended, was completely wrong.
http://www.overlawyered.com/archives/01/june1.html#0607b
June 7 2001 -- Ness monster sighted in Narragansett Bay. Bad enough that Rhode Island, with its insider-dominated political system, has failed to shake its reputation as the "Louisiana of the North". (See, e.g., Mark Sappenfield, "Legacy of scandal mars Rhode Island", Christian Science Monitor, April 11). But will Little Rhody become the first state to auction itself off to out-of-state trial lawyers? You start wondering after reading Forbes's recent cover story on the nation's richest tort law firm, Charleston, S.C.-based powerhouse Ness Motley (tobacco, asbestos, etc.), and its branch office in Providence, opened some years ago by partner John J. McConnell Jr. Ness Motley has quickly made itself "Rhode Island's largest political contributor, at $540,950 for the 2000 national elections", and its local partner McConnell has become treasurer of the Democratic party in the tiny state. By one of these coincidences that are so rare in novels but so common in real life, Rhode Island Democratic attorney general Sheldon Whitehouse, considered ambitious for a gubernatorial run, in 1999 awarded the Ness firm a contingency fee contract to sue on behalf of the state seeking money from former makers of lead paint -- the only one of the fifty state AGs thus far to take such a step ...
Ah, since 2001. Thank you, Ragin.
Well, if the AG's of a particular party were trying very hard to make me rich by abusing their office, I guess I'd find time to be party treasurer, too.
never seen any beauty that came near her. "Let us bet again, for a box or a kiss, that you can spend a whole day directed to the prince of Persia? The slave, who expected no such
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Andrew,
Is not Jack McConnell's multi-multi-multi-million dollar legal 'fee' directly tied to the $$ number Pat Lynch can get the court to agree upon? Would this be the same Jack McConnell who's Treasurer of the Rhode Island Democratic party? No wonder business won't come to this state. The stench wafts for miles and miles.
Posted by: Tim at November 3, 2007 1:17 PMYet another system that is corrupt through and through!
Huh. Would ya look at that. "John J. McConnell, Jr. Esq" is the Treasurer of the RI Dem Party. And there is a "John J. McConnell, Jr. Esq" in the law firm Motley Rice, whom the Attorney General brought in to try the lead paint case for a contingency fee of 16%. Treasurer in more ways than one!
Another thing, Tim. Unlike the AG's race five years ago, the Democrat gubernatorial nomination is by no means a lock for the brother of the Democrat Party Chairman. And as of last month, Frank Caprio had ten times as much in his campaign fund as Patrick Lynch.
The next governor's race is a long way away and a lot will happen between now and then. But it is not unreasonable for Patrick Lynch to be looking for his next gig. And where better to go than the law firm to whom he handed - or tried like mad to hand - 16% of billions? And it would be ... well, just rude of them not to offer Mr. Lynch a signing bonus (if that lead paint case works out the right way).
[A disclaimer for twitchy lawyers, chairmen and Attorneys General: the above is speculation on my part sparked by Tim's comment about the new coziness between the RI Democrat Party and Motley Rice, LLC.]
Posted by: Monique at November 3, 2007 5:51 PM(Thank you for posting this item, Andrew.)
Let us remember that the lead paint case was brought by the prior AG (Whitehouse) and then appealed by the present AG (Lynch) strictly for political aggrandizement by warping the public nuisance law in a way that was never intended but is more than a little frightening. And let us remember that Motley Rice/the AG never proved that any leaded paint sold by the four defendants was on the walls or doors of properties which lead-poisoned children.
In short, the AG was able to hold four companies responsible for a "crime" which he did not prove that they committed.
I sincerely hope the lead paint companies fully win their appeal. This case was a serious abuse of the Attorney General's power solely for the purpose of making the office holders look good. And the verdict, while well-intended, was completely wrong.
Posted by: Monique at November 3, 2007 6:03 PMhttp://www.overlawyered.com/archives/01/june1.html#0607b
Posted by: Ragin' Rhode Islander at November 3, 2007 7:01 PMJune 7 2001 -- Ness monster sighted in Narragansett Bay. Bad enough that Rhode Island, with its insider-dominated political system, has failed to shake its reputation as the "Louisiana of the North". (See, e.g., Mark Sappenfield, "Legacy of scandal mars Rhode Island", Christian Science Monitor, April 11). But will Little Rhody become the first state to auction itself off to out-of-state trial lawyers? You start wondering after reading Forbes's recent cover story on the nation's richest tort law firm, Charleston, S.C.-based powerhouse Ness Motley (tobacco, asbestos, etc.), and its branch office in Providence, opened some years ago by partner John J. McConnell Jr. Ness Motley has quickly made itself "Rhode Island's largest political contributor, at $540,950 for the 2000 national elections", and its local partner McConnell has become treasurer of the Democratic party in the tiny state. By one of these coincidences that are so rare in novels but so common in real life, Rhode Island Democratic attorney general Sheldon Whitehouse, considered ambitious for a gubernatorial run, in 1999 awarded the Ness firm a contingency fee contract to sue on behalf of the state seeking money from former makers of lead paint -- the only one of the fifty state AGs thus far to take such a step ...
Ah, since 2001. Thank you, Ragin.
Well, if the AG's of a particular party were trying very hard to make me rich by abusing their office, I guess I'd find time to be party treasurer, too.
Posted by: Monique at November 3, 2007 8:53 PMnever seen any beauty that came near her. "Let us bet again, for a box or a kiss, that you can spend a whole day directed to the prince of Persia? The slave, who expected no such
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