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A California court judgment used an “avant-garde form of public-nuisance law,” leaving three lead paint companies stuck with hundreds of millions of dollars in abatement costs.

That's according to the Washington Legal Foundation's amicus brief, filed on Wednesday, in support of a petition before the U.S. Supreme Court to review a 2014 judgment against Sherwin-Williams Co., Conagra Grocery Products Co. and NL Industries Inc. The WLF said those three companies were “stuck with the bill” that Sherwin-Williams estimated to be between $409 million and $730 million.

“The way restaurants bill is simple, orderly and fair,” wrote Corbin Barthold, litigation counsel at the WLF. “You pay for the food you order. But imagine that late one evening, around closing time, after dinner with a friend, the waiter hands you a bill for $5,000. You object. The host arrives and explains that the other patrons left without paying. The restaurant cannot track them down. You, however, are here. You, therefore, shall pay—for everyone.”

Many other companies sold lead paint, he wrote. Builders and painters used it. And homeowners failed to keep up buildings that are now hazardous.

“Three companies have been ordered to pay hundreds of millions of dollars to find and abate every lead-paint hazard in every home built in 10 California jurisdictions before 1951,” Barthold wrote. “The many other companies responsible for the presence of lead paint in these homes are off the hook. So too are the many landlords and homeowners who let their lead paint become a hazard. The burden of fixing a widespread problem—a problem with many antecedents—has been cast on just a few shoulders.”

Another amicus brief was filed by five states: Indiana, Louisiana, Texas, Utah and Wyoming. That brief, filed on Thursday, seeks to “police the boundaries of public nuisance lawsuits.”

“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,” wrote Indiana Attorney General Curtis Hill. “This theory of liability goes far beyond any traditional understanding of public nuisance law.”

The amicus briefs, the first in the case, come as three companies filed dual petitions last month for Supreme Court review of a judgment by Santa Clara Superior Court Judge James Kleinberg. Amicus briefs are due on Friday.

The plaintiffs, a group of 10 cities and counties in California, were due to file their response on Friday. But the Supreme Court granted a request for a 30-day extension “in light of the length and complexity of the issues” and “long-planned vacations,” according to an Aug. 3 letter by plaintiffs lawyer Michael Rubin of Altshuler Berzon in San Francisco.

A lawyer for two paint companies—prominent appellate attorney Paul Clement of Kirkland & Ellis for Conagra and NL Industries — did not respond to requests for comment.

“The petitions raise important issues of national significance regarding the decision, which imposed hundreds of millions of dollars in public nuisance liability on three companies based on decades-old truthful advertising of a lawful product without proof that defendants caused any injury, that anyone relied on the advertisements to use lead paint on the interior of their homes, or that defendants' lead paint is in any home,” said Leon DeJulius of Jones Day, who represents Sherwin-Williams. “Amicus Curiae briefs filed in support of the Petitioners agree that California's misuse of public nuisance in this way violates defendants' free speech and due process rights and puts at risk every product manufacturer that has ever done business in California.”

Santa Clara County brought the case in 2000. Initially imposing $1.15 billion in abatement costs, the judgment found the three companies liable for endangering the state's residents through exposure to their products, which they promoted as safe as far back as 70 years ago. On Nov. 14, 2017, the Sixth District Court of Appeal affirmed the judgment but limited the abatement costs to homes built prior to 1951.

The defendants petitioned the California Supreme Court to overrule the decision, but the state's high court declined in a Feb. 14 split decision. Sherwin-Williams and Conagra also backed a ballot initiative for this fall—a political move that two California counties tried to stop with a petition for writ of mandate before the California Supreme Court. The companies later dropped the proposal, which would have asked taxpayers for more than $2 billion, after striking a deal with California's legislators.

“It is tempting to dismiss this extreme version of 'public nuisance' as an extreme outlier, but if this court does not intervene, this outlying doctrine will become the weapon of choice in the tort wars,” Clement wrote in a July 16 petition filed by Conagra and NL Industries. “In short, the decision below poses an enormous risk to everyone who has ever done business in California, as it opens the door to potentially unbounded suits targeting manufacturers of products sold decades ago in situations where traditional common-law and constitutional protections should prevent recovery.”

Already, there are “copycat cases” brought in California over climate change, the opioid crisis and water contamination, he wrote.

The lead paint judgment stands alone, however. Other government cases in New Jersey, Missouri, Illinois, Ohio and Wisconsin failed in their efforts to bring public nuisance claims over lead paint. In 2008, the Rhode Island Supreme Court reversed a jury's verdict that would have hit three paint companies, including Sherwin-Williams and NL Industries, with about $2.4 billion in abatement costs.

The California judgment violated due process rights and led to a “perfect storm of First Amendment concerns,” Clement wrote. The “linchpin” of the judgment was decades-old advertisements that were protected speech—not the actual residences with lead paint sold by the defendant.

Sherwin-Williams, held liable for its advertising and $5,000 it paid to a trade association, filed a separate petition on July 16 that said the judgment created a split with the U.S. Court of Appeals for the Third Circuit's In re Asbestos School Litigation decision. In that 1994 ruling, then-Judge Samuel Alito found that imposing liability for donations to trade groups would threaten First Amendment rights.

“The California ruling poses an immediate, chilling effect on product advertising and trade association membership,” DeJulius wrote.

In its brief, the WLF focused on the due process claims.

“Basically, this has turned the classic judicial process on its head. The way a case works is a plaintiff says, 'I've been harmed,'” Barthold said in an interview. “Here, you have a court flipping this on its head—there's this broad social problem and explain to me what part you're responsible for. If you, the defendant, can't parse it out, we'll hold you responsible for the whole thing.”

In particular, the judgment, according to the WLF's amicus brief, was arbitrary because it was not based on whether lead paint sold by the three companies was the cause of the public's harm. “By this logic, someone who litters by Washington Square Arch has harmed 'the community's' cleanliness and may be held responsible for every piece of mislaid trash in New York,” Barthold wrote.

The brief cites the Supreme Court's decisions striking punitive damages as arbitrary—for instance, State Farm Mutual Automobile Insurance v. Campbell in 2003 and Philip Morris USA v. Williams in 2007.

The WLF also said Kleinberg stepped outside the bounds of the court's authority in rendering the judgment.

“The courts below went beyond resolving a case or controversy. They crafted public policy,” Barthold wrote. “The 'big picture' approach to resolving social ills is beyond the court's institutional capacity. It is bound to result—as it did here—in the arbitrary treatment of the select few litigants handed the bill for achieving cosmic justice.”