What causes of action have been invoked in the lawsuits?
Numerous claims have been put forward to hold the lead industry accountable.

Public nuisance: Public nuisance claims often are invoked in cases of widespread harm. The State of Rhode Island and numerous cities, including St. Louis and Milwaukee, have alleged that the companies created an environmental hazard that is interfering with the health, safety, comfort, or convenience of their residents and constitutes a public nuisance.

Consumer protection law violations: Some governments have alleged that the companies violated laws protecting consumers by concealing the hazards of lead-based paint and misleading consumers and the public.

Strict liability: Many of the plaintiffs have claimed that defendants are strictly liable (i.e. liable without regard to fault). Strict liability can arise if a company produces a product that is unreasonably dangerous because it is designed defectively or does not carry adequate warnings, or both.

Negligence: The plaintiffs also claim that defendants were negligent, i.e., that they did not behave reasonably under the circumstances. The negligence claims are based upon the defendants’ failure to warn the public about the dangers of lead-based paint, their failure to adequately test the safety of their products, and their continuing production and marketing of lead pigments when they knew (or should have known) that they were hazardous.

Indemnity: Several of the governmental cases include claims for indemnity, which would require the defendants to assume financial responsibility for the plaintiffs’ past and continuing expenditure of funds for lead-based paint monitoring, maintenance, detection, and abatement, and screening and treatment of poisoned children.

Unjust enrichment: Several governments also allege that the defendants have been unjustly enriched due to their payment for expenses related to lead poisoning and lead abatement. The governments have paid for these programs, while the defendants have refused to assume responsibility and instead have profited from the sale of lead pigments. The governments claim that these profits should be made available to deal with the public health crisis the defendants created.

Fraud and conspiracy: In most of the cases, plaintiffs allege that fraud and conspiracy underlie the defendants’ conduct.

Have governments waited too long to bring their claims?

Statutes of limitation do not bar suits by most states and some counties and cities. For example, Texas law provides that claims of the state and its political subdivisions, including school districts, are not barred by certain statutes of limitation. Principles of equity and fairness may require that statutes of limitation be suspended in some circumstances. For example, Santa Clara County has claimed that it was unable to discover the claims raised in its complaint because defendants fraudulently concealed and continue to minimize the problem. Not until the late 1990s, when the county’s lead poisoning prevention programs were funded, was it able to grasp the extent and nature of the problem.

In any event, claims involving continuing or potential harm do not trigger statutes of limitation until the harm has been eliminated. The public nuisance claims, for example, will remain timely as long as potential lead-based paint hazards exist. When the hazards have been abated, i.e., the paint has been safely removed, any applicable statute of limitations would begin to run.

How can courts determine which companies are liable?

When states, counties, and cities sue the lead industry, they may rely on principles of joint and several liability to establish that the conduct of each of the defendants caused harm to the government entity. Under this doctrine, a company may be held liable if it was a substantial factor (not the sole factor) in causing the harm to the plaintiff. If a number of defendants are held jointly and severally liable, each defendant legally is responsible for the entire amount of the plaintiff’s damages (although in practice, liability typically is apportioned among the defendants).

In the context of the suits against the lead industry, the governments only need to prove that each lead pigment manufacturer was a substantial factor in causing it to incur expenses related to lead-based paint. Defendants also would be jointly and severally liable if they are found to have engaged in a conspiracy to conceal the hazards of lead-based paint.

Why are the some of the suits alleging a conspiracy by the industry?

When two or more parties work together to commit an unlawful act or to commit a lawful act through illegal means, they have engaged in conspiracy, which makes each party liable for the entire harm caused to a plaintiff as a result of the conspiracy. The lawsuits allege that the lead companies and their trade association conspired to conceal the dangers of lead-based paint, to mislead the public regarding the hazards, and to aggressively promote lead-based paint, despite their knowledge of its dangers. If the plaintiffs succeed in proving conspiracy, the lead companies will be jointly and severally liable for the damage, and the plaintiffs need not prove that a specific defendant’s paint is responsible for their damages. This would not be the first time the lead pigment industry would be found to have conspired against the public interest. In 1953, the Federal Trade Commission found that the lead pigment industry had violated federal law by conspiring to fix prices.

Are these class action suits?

The lawsuit initiated by Santa Clara County has been brought on behalf of a class comprising all public entities in California that have incurred medical, educational, or abatement costs stemming from lead-based paint. Several counties and two cities have joined that lawsuit as plaintiffs.

How are these cases different from previous unsuccessful suits against the lead industry?

Many of the recent cases have been filed by governmental entities, not individual plaintiffs. Governments bear broad responsibility for protecting public health and well-being, and are accorded expansive rights to fulfill that duty. Accordingly, governments have standing to pursue certain causes of action—such as public nuisance, equitable relief, and consumer protection act violations—that may not be available to individual plaintiffs.

Past cases by individuals have been hindered because it is nearly impossible to pinpoint which of the defendants produced the lead pigment that caused the plaintiff’s injuries. The governmental cases focus on the conduct of the lead industry in promoting, selling, and distributing lead pigment for use in and on homes. By focusing on the individual and collective conduct of the defendants, the cases rely on joint and several liability and conspiracy claims to hold the industry accountable for the widespread harm it has caused.

Experience in the tobacco litigation may be instructive. For decades, the tobacco industry appeared unassailable in court, as plaintiffs lost case after case. It was not until significant numbers of states sued the companies for the public health costs of tobacco that they came to the negotiating table. It is true that industry will not back down easily, given the potentially enormous liability at stake. However, as more states, cities, and counties launch suits, the likelihood that the lead industry will be held accountable for the damage it has caused will increase significantly.