Selected SCOTUS Amici Quotes


Atlantic Legal Foundation and Association of National Advertisers

State and local governments throughout the country are using the newly-broadened concept of “public nuisance” and the lax burdens of proof applied in the decisions below to assert liability against numerous companies based on truthful speech and lawful association.
—Atlantic Legal Foundation and Association of National Advertisers (ALF and ANA) at p. 5

The California ruling threatens the rights of American businesses to speak and to associate with each other and will have a chilling effect on commercial speech and the right of association because of the immense liability imposed on the lawful promotion of products.
—ALF and ANA at p. 5-6

The linchpin for the imposition of massive retroactive liability was not the manufacture, sale or application of lead paint to the interiors of residences, but its promotion. Petitioners were explicitly held liable solely for their speech.
—ALF and ANA at p. 6

U.S. Chamber of Commerce

The result [of this case] is a jury-rigged claim foreign to Anglo-American jurisprudence imposing massive and entirely unforeseeable liability against petitioners almost a century after their lawful speech at issue.
—U.S. Chamber of Commerce (U.S. Chamber) at p. 3 

The court’s reimagining of this “public right” tort essentially resulted in the aggregation of 1.5 million individual, private right claims into a single class claim—but without the procedural safeguards available in aggregate litigation.
—U.S. Chamber at p. 3 

The court’s causation analysis amounts to a self-evidently baseless presumption that pre-1951 speech by petitioners—only a few out of the numerous companies that sold or spoke about lead-based paint over a period of decades in the first half of the last century—contributed to the presence of lead in each and every one of the 1.5 million potentially affected private homes.
—U.S. Chamber at p. 3

The decision below thus presents an important constitutional question, which is at the heart not only of this case but also of the scores of public nuisance cases recently filed by states and local governments seeking to hold American businesses liable for a host of societal ills without satisfying traditional elements of tort liability.
—U.S. Chamber at p. 3

States are of course free to enact new laws and promulgate new regulations and to apply them prospectively to address societal ills. But drastically altering established law to deprive defendants of well-settled procedural protections, avoid long-accepted defenses, and retroactively impose massive liability for lawful speech occurring nearly a century ago is a due process (and First Amendment) violation of the most basic sort.
—U.S. Chamber at p. 16

Civil Justice Association of California

California’s public nuisance doctrine has undergone transformation from common law, to statute, to amendment through court interpretation. With each successive iteration it has become increasingly vague until, as interpreted and applied in this case, it now lacks any guiding standards.
—Civil Justice Association of California (CJAC) at p. 10

Distinguished Legal Scholars

These remarkable departures from traditional tort principles are just the tip of the iceberg. The so-called “public nuisance” theory adopted by the decision below is in fact a grotesque misapplication of tort  principles, which bears no resemblance to traditional public nuisance law.
—Distinguished Legal Scholars (DLS) at p. 3-4

In short, the “public nuisance” theory adopted by the decision below bears no resemblance to traditional public nuisance claims—which is no doubt why similar theories have been rejected by virtually every prior decision to consider them.
—DLS at p. 4

[T]he alleged property damage and personal injuries were suffered inside the individual homes where lead paint was used, a quintessentially private place, and thus no public right shared in common is implicated. It makes no difference that the public has a general interest in health. Were such a broad and pervasive interest enough, the concept of a public nuisance claim would be subject to no meaningful restriction and would swallow virtually all tort law.
—DLS at p. 8

It should come as no surprise that courts in other states have resoundingly rejected the public nuisance theory adopted by the California Court of Appeal.
—DLS at p. 9

The States of Indiana, Louisiana, Texas, Utah, and Wyoming

Cases such as this that enable courts to impose liability arbitrarily with no proof that the defendants caused any harm or can abate it in any recognizable way denigrate the appropriate power of attorneys general to abate legitimate public nuisances and threaten to undermine the Anglo-American tradition of justice.

Recent developments in public nuisance law, especially theories like that of California in this case, distort the traditional purpose of civil lawsuits in the Anglo-American tradition. Instead of seeking to redress a particular injury caused by a particular defendant, they seek to enact societal change or massive wealth transfers through the court system by holding entire industries responsible for broad societal harms. In other words, such lawsuits seek to regulate (or at least punish) industry in the absence of legislative enactments.
State AGs at p. 15

NAM, NFIB, Coalition for Litigation Justice, Plastic Pipe and Fittings Association

[A]mici believe the lower courts’ decisions violated Petitioners’ due process and First Amendment rights, opening the door to unbounded government-sponsored public nuisance actions targeting product manufacturers and sellers for doing nothing more than lawfully engaging in their spheres of commerce.
—NAM, NFIB, Coalition for Litigation Justice, Plastic Pipe &Fittings Association (NAM) at p. 1

The failure of the California Supreme Court to stop this lawsuit has already generated other end-game oriented litigations against manufacturers, including to pay for local infrastructure projects to address impacts of global climate change, remediation of water pollution caused by third parties, and societal costs associated with illicit use of opioids and heroin.
—NAM at p. 4

The due process concerns with putting all manufacturers into a causation Cuisinart, where causation for individual companies is blended together, is evident by the results.
—NAM at p. 14

National Organization of African Americans in Housing

The lower courts’ rulings in this case are a paradigmatic example of this illegitimate form of adjudicating liability by making up new rules of law as well as crafting new, untested policies for housing and lead hazard abatement.
—National Organization of African Americans in Housing (NOAAH) at p. 4

All but the most ardent political activists cannot help but wince at the prospect of courts reallocating potentially billions of dollars in the name of unidentified consumers, most of whom have not suffered and will never suffer injury; or courts protecting government agencies from funding welfare expenditures that they are politically obligated to make under our traditional forms of government.
NOAAH at p. 4

Pacific Legal Foundation

Due process requires that laws—including common law doctrines—be sufficiently clear and definite to allow persons to understand whether particular conduct violates the law or leaves one open to liability and civil retribution. The decision below severely undermines this constitutional protection by taking the extraordinarily vague and convoluted doctrine of public nuisance and removing all perceptible limits on its application.
—Pacific Legal Foundation (PLF) at p. 2

Public nuisance was poorly defined at common law, and recent decisions have served only to blur what few perceptible lines existed.
—PLF at p. 7

The decision below profoundly affects the rights of millions of property owners throughout California whose homes or other holdings may be declared to be public nuisances. The court below imposed these massive new liabilities on property owners without allowing them to participate in the proceedings and be heard.
—PLF at p. 9

Products Liability Advisory Council

[The United States Supreme Court ] has repeatedly recognized that American businesses have a constitutional right to associate in order to promote their interests, just as individual citizens enjoy the right to come together to advance their political, cultural, economic, and social interests. The threat of incurring liability for routine promotional statements of their trade group discourages exercise of the existing or potential member’s First Amendment right to associate.
—Products Liability Advisory Council (PLAC) at p. 3

Th[e] standard [set forth by the California court] is unsupported by any precedent; it is inconsistent with the recognition that lawful commercial speech is entitled to protection, as it would erase virtually all constitutional protection for product advertising; and it is unworkable, as it is neither feasible nor truthful to transform every advertisement, large or small, into a bulletin board to call out every potential or suspected risk attending use of the product. Every product has risks, some known, some suspected, and some entirely speculative.
—PLAC at p. 4

[T]he California court imposed massive, wildly disproportionate liability for de minimus advertising, speech lacking any specific causal nexus to the properties to be inspected and abated and contributing minimally, at best, to the general health problem deemed a nuisance. This Court has never tolerated this type and magnitude of burden on First Amendment interests predicated on this attenuated connection between the expression, the harm and the remedy.
—PLAC at p. 5

Retail Litigation Center

This new theory of liability based on speech disconnected from causation is light years removed from fundamental tort law principles. Untethered to those principles, California’s theory is no more than a sleight of hand to hold individual producers (or potentially retailers) responsible for harms they did not cause and could not predict.
—Retail Litigation Center (RLC) at p. 5

Moreover, because liability was premised exclusively on product advertisements (i.e., speech), the theory adopted by the California courts could apply to entities—such as retailers—that have nothing whatsoever to do with creating the products later determined to be dangerous. That reliance on speech-related activities pushes even the most forgiving tort standard beyond its moorings.
—RLC at p .10

Washington Legal Foundation

The burden of fixing a widespread problem—a problem with many antecedents—has been cast on just a few shoulders.
—Washington Legal Foundation (WLF)  at p. 1

It is difficult to imagine a surer way to generate arbitrary tort awards than to remove the element of causation from tort law. This case proves the point. The decision below violates due process by imposing hundreds of millions of dollars in liability without a showing that the defendants caused the harm for which they must pay.
—WLF at p. 8

American Coatings Association

Unless reversed by this Court, this ruling will have a substantial, immediate chilling effect on companies’ participation in trade associations.
—American Coatings Association (ACA) at p. 7

This post-hoc re-characterization of truthful speech about a lawful product as “misleading” based on current ideas about the product’s safety disregards this Court’s free speech jurisprudence.
—ACA at p. 8

The stark premise of this ruling is that a company’s contributions to a trade association used to promote a lawful product for a lawful use may one day be ample evidence of liability, raising no constitutional concerns. This broad, unprecedented, and unconstitutional form of liability can easily ensnare member companies across numerous industries, leading to a substantial chill on trade association activity.
—ACA at p. 15