Document a1QQkBndVZD3jmNeggJ77xeQR

Nos. 18-84 & 18-86 In the Supreme Court of the United States CONAGRA GROCERY PRODUCTS COMPANY, ET AL., Petitioners, v. THE PEOPLE OF CALIFORNIA, Respondent. THE SHERWIN-WILLIAMS COMPANY, Petitioner, v. THE PEOPLE OF CALIFORNIA, Respondent. On Petitions for Writ of Certiorari to the California Court of Appeal BRIEF OF AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA IN SUPPORT OF PETITIONERS STEVEN P. LEHOTSKY MICHAEL B. SCHON U.S. CHAMBER LITIGATION CENTER, INC. 1615 H Street NW Washington, D.C. 20062 (202) 463-5685 JEFFREY S. BUCHOLTZ Counsel of Record KING & SPALDING LLP 1700 Pennsylvania Ave. NW Washington, D.C. 20006 (202) 737-0500 jbucholtz@kslaw.com Counsel for Chamber of Commerce of the United States of America August 17, 2018 * Additional counsel on inside cover VAL LEPPERT KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, GA 30309 (404) 572-4600 i TABLE OF CONTENTS TABLE OF AUTHORITIES........................................ii INTEREST OF AMICUS CURIAE ............................1 INTRODUCTION AND SUMMARY OF ARGUMENT .........................................................2 ARGUMENT ................................................................ 4 I. The Decision Below Violates Due Process ...........4 II. Left Undisturbed, The Decision Below Will Continue To Spawn Abusive Litigation .............13 CONCLUSION ..........................................................17 APPENDIX Appendix A: Examples of Similar Public Nuisance Actions Filed in Federal Court Since August 1, 2017 .................................. App. 1 ii TABLE OF AUTHORITIES CASES Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009) ..............................15 Blankenship v. Gen. Motors Corp., 406 S.E.2d 781 (W. Va. 1991).............................15 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) .................................... passim Bouie v. City of Columbia, 378 U.S. 347 (1964) ..............................................5 City of Chicago v. Am. Cyanamid Co., 823 N.E.2d 126 (Ill. App. Ct. 2005)......................8 Duran v. U.S. Bank Nat'l Ass'n, 325 P.3d 916 (Cal. 2014) ..................................8, 9 Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415 (1994) .................................... passim In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990) ..............................12 In re Lead Paint Litig., 924 A.2d 484 (N.J. 2007) ....................................16 Int'l Broth. of Teamsters, Local 734 Health & Welfare Tr. Fund v. Philip Morris Inc., 196 F.3d 818 (7th Cir. 1999) ..............................10 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .............................. 4, 5, 10, 16 Lindsey v. Normet, 405 U.S. 56 (1972) ................................................9 iii Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272 (1856) ...............................................5 Paroline v. United States, 134 S. Ct. 1710 (2014) ........................................13 People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997) ......................................6 People ex rel. Spitzer v. Sturm, Roger & Co., Inc., 761 N.Y.S.2d 192 (App. Div. 2003) ....................14 Philip Morris USA Inc. v. Scott, 561 U.S. 1301 (2010) ..........................................10 Philip Morris USA v. Williams, 549 U.S. 346 (2007) .................................... 5, 9, 11 Richards v. Jefferson County, Ala., 517 U.S. 793 (1996) ..............................................5 Rogers v. Tennessee, 532 U.S. 451 (2001) ........................................5, 16 State v. Lead Indus., Ass'n, Inc., 951 A.2d 428 (R.I. 2008) .......................................7 Tumey v. Ohio, 273 U.S. 510 (1927) ..............................................5 W. & Atl. R.R. v. Henderson, 279 U.S. 639 (1929) ............................................12 WalMart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ..............................................9 William Danzer & Co. v. Gulf & S.I. R. Co., 268 U.S. 633 (1925) ................................ 4, 5, 8, 16 iv CONSTITUTIONAL PROVISIONS U.S. Const. amend. XIV ..............................................4 OTHER AUTHORITIES 47 Cal. Jur. 3d Nuisances 27....................................6 58 Am. Jur. 2d Nuisances 32....................................7 Bloomberg News, Is the Public Nuisance Universe Expanding, available at: https://www.bna.com/publicnuisance-universe-n57982083122/ ....................14 Donald G. Gifford, Public Nuisance As A Mass Products Liability Tort, 71 U. Cin. L. Rev. 741 (2003) ......................7 Restatement (Second) of Torts (1965).....................6, 7 U.S. Chamber Institute for Legal Reform, Litigation Cost Survey of Major Companies, Presentation to Committee on Rules of Practice and Procedure Judicial Conference of the United States, 2010 Conference on Civil Litigation, Duke Law School (May 1011, 2010) available at: http://www.uscourts.gov/sites/ default/files/litigation_cost_survey_of_major_ companies_0.pdf .................................................16 William H. Pryor, Jr., Att'y Gen. of Ala., Address at the Reagan Forum: Fulfilling the Reagan Revolution by Limiting Government Litigation (Nov. 14, 2000) ..................................16 WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS (2d ed. 1955)...6 1 INTEREST OF AMICUS CURIAE 1 The Chamber of Commerce of the United States of America is the world's largest business federation. It represents 300,000 direct members and indirectly represents the interests of more than three million businesses of every size, in every industry, and from every region of the country. An important function of the Chamber is to represent the interests of its members in matters before Congress, the Executive Branch, and the courts. To that end, the Chamber regularly files amicus briefs in cases raising issues of concern to the nation's business community. The Chamber's membership includes many companies that are now subject to the new wave of abusive "public nuisance" lawsuits filed by local governments around the country. The Chamber and its members are deeply concerned about the California court's decision because its novel "public nuisance" theory radically departs from historical procedural safeguards against arbitrary deprivation of property in order to impose massive retroactive liability against American businesses for decades-old conduct that was lawful when it occurred. 1 The parties received timely notice of the Chamber's intent to file this brief and have consented to its filing. No counsel for any party authored this brief in whole or in part, and no person or entity other than the Chamber, its members, or its counsel made a monetary contribution intended to fund its preparation or submission. 2 INTRODUCTION AND SUMMARY OF ARGUMENT The California Court of Appeal ordered petitioners to pay hundreds of millions of dollars to look for and then abate any "deteriorated interior lead paint, lead paint on friction surfaces, and leadcontaminated soil" in about 1.5 million privately owned residences built before 1951. Pet. App. 1721, 88. To arrive at this judgment, the court reimagined the "public nuisance" tort to retroactively fit the facts of this case and evade traditional defenses such as the absence of causation or reliance. The court applied the key elements of the public nuisance tort in an unprecedented manner: petitioners could not possibly have had fair notice a century ago that mere advertisement of a lawful product would be deemed an "unreasonable interference," much less that conditions in certain privately owned residences supposedly caused by the use of the product by individual homeowners or home-builders would be deemed to implicate a "public right" under nuisance law. The court below redefined these terms long after the fact to create liability, after all other tort theories had failed. Certifying a class of 1.5 million individuals would not work because petitioners would have the right to present defenses to individual claims. Fraud claims would not work because there is no evidence of reliance. Product-liability claims would not work because the sellers of a century ago could not be identified. Private nuisance claims would not work because there is no proof of causation against any petitioner. And so on. So the court below indulged the 3 plaintiffs' effort to take their favorite parts of various claims and procedures without the protections that go along with those claims and procedures. The result 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. 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. 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. Worse, the court precluded petitioners from rebutting this presumption by refusing to join property owners and by refusing to allow petitioners to investigate the potential claims of any of the individual homeowners. The Due Process Clause protects Americans from such baseless imposition of massive and retroactive liability. 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. Indeed, the massive judgment below has sparked a wave of copycat suits that 4 now threaten this country's businesses with arbitrary liability in violation of established procedural due process protections. This Court's intervention is urgently needed. ARGUMENT I. The Decision Below Violates Due Process The Court should grant certiorari because the decision below imposes massive liability in violation of the Due Process Clause. The Fourteenth Amendment provides that no state shall "deprive any person of . . . property, without due process of law." U.S. Const. amend. XIV. This Clause "dictate[s] that a person receive fair notice" that certain conduct "will subject him" to monetary liability, see BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996), and therefore prohibits states from "creat[ing] liability" "retroactively," see William Danzer & Co. v. Gulf & S.I. R. Co., 268 U.S. 633, 637 (1925). After all, retroactive applications of new laws "compromise[]" the interests in "fair notice and repose" protected by the Clause and "raise particular concerns" of "arbitrary and vindictive" liability assessed "against unpopular groups or individuals." Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). In the same vein, the Due Process Clause also proscribes radical departures from "well-established common-law protection[s] against arbitrary deprivations of property," Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 430 (1994), as well as "extreme applications" of state-law doctrines that are "inconsistent with a federal right that is fundamental in character," see Richards v. Jefferson County, Ala., 517 U.S. 5 793, 797 (1996) (quotation marks omitted). "As this Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis." Oberg, 512 U.S. at 430; accord Tumey v. Ohio, 273 U.S. 510 (1927); Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272 (1856). Adherence to time-tested methods prevents "arbitrary and inaccurate adjudication" and is the very essence of due process. Oberg, 512 U.S. at 430. The Clause thus "safeguard[s] defendants against unjustified and unpredictable breaks with prior law . . . [through] judicial alteration of a common law doctrine." Rogers v. Tennessee, 532 U.S. 451, 462 (2001); Bouie v. City of Columbia, 378 U.S. 347, 35254 (1964) ("unforeseeable" and "retroactive" ruling that departed from prior precedent violated due process). To be sure, states are free to design their tort laws as they please--but only so long as they do so consistent with the Constitution. California may be able to change its conception of what constitutes a "public nuisance," but not without first providing "fair notice" that certain conduct will subject the actor to liability, see Gore, 517 U.S. at 574, and certainly not by drastically departing from "traditional practice," Oberg, 512 U.S. at 430, "retroactively" altering the law after the fact to impose "arbitrary" and grossly disproportionate liability, Danzer, 268 U.S. at 637; Landgraf, 511 U.S. at 266, and stripping a defendant of the procedural right "to present every available defense," Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). The decision below runs afoul of these due process principles. Indeed, it makes a mockery of them: the 6 novel public nuisance theory accepted by the Court of Appeal was crafted to circumvent the established defenses that should have protected petitioners against the arbitrary deprivation of property that occurred here. The plaintiffs tried to fit the same factual allegations into numerous legal doctrines, such as negligence and strict product liability--but those traditional theories failed before trial. Pet. App. 384. The same is true of the more traditional "public nuisance" claim that the plaintiffs originally asserted, which failed because it "was fully encompassed by products liability law." Pet. App. 371. But unwilling to follow established legal principles where they led, the court fashioned a new public nuisance claim designed to turn the facts of this case into a tort. Historically, a public nuisance has been defined as conduct that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all. See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS, ch. 14, 71 at 401 (2d ed. 1955). Courts in California, as elsewhere, have typically looked to the Restatement (Second) of Torts and outlined the following elements: (1) an interference with a right common to the public, (2) that is substantial and unreasonable and affects a considerable number of persons, and (3) that the defendant created or assisted in creating. See People ex rel. Gallo v. Acuna, 929 P.2d 596, 60405 (Cal. 1997) (citing Restatement (Second) of Torts (1965)); 47 Cal. Jur. 3d Nuisances 27. The requirements of a public right and a causal connection between the defendant's conduct and the alleged nuisance have always been critical to keeping this tort within non-arbitrary bounds. In this case, however, the court below redefined these elements in 7 unprecedented fashion to find a way to create liability and avoid petitioners' defenses: 1. Public right. For starters, a "public right" has always been considered "the right to a public good, such as an indivisible resource shared by the public at large, like air, water, or public rights-of-way." 58 Am. Jur. 2d Nuisances 32. It is "more than an aggregate of private rights by a large number of injured people." Id. In other words, a "public right" is "collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured." Restatement (Second) of Torts 821B, cmt. g. But the court below found an interference with a "public right" based on the promotion of legal consumer products that were "placed on plaintiffs' property by plaintiffs or with their consent" (Pet. App. 374) and now allegedly cause danger as a result of myriad unidentified third parties' conduct or neglect in certain private residences. Until the decision below, no appellate court had ever held that interference with a "public right" includes circumstances in the homes of certain individuals--even "a large number" of them--supposedly caused by their purchase and use of a consumer product many decades earlier. To the contrary, appellate courts have concluded that these same facts do not implicate "a public right as that term has been understood in the law of public nuisance." State v. Lead Indus., Ass'n, Inc., 951 A.2d 428, 448 (R.I. 2008) (quoting Donald G. Gifford, Public Nuisance As A Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 743 (2003)); City of Chicago v. Am. Cyanamid Co., 8 823 N.E.2d 126, 131 (Ill. App. Ct. 2005) (same). A person's purchase and use of a consumer product in her own private home simply has nothing to do with the exercise of a public right. Against this background, petitioners could not possibly have received "fair notice" that their conduct would subject them to liability based on a new and radically different definition of "public right." See Gore, 517 U.S. at 574. Violating basic notions of procedural due process, the court below redefined this key term in the early twenty-first century to "retroactively . . . create liability" against petitioners for speech in the early twentieth century. Danzer, 268 U.S. at 637. The court's redefinition of "public right" allowed it to impose aggregate liability on petitioners without the procedural protections traditionally afforded in aggregate litigation. The new "public right" claim amounts to pooling 1.5 million individual, private right claims by potentially affected homeowners into one colossal class claim. Yet the plaintiffs did not have to satisfy the procedural prerequisites of class action litigation--such as showing that the grievances of the 1.5 million allegedly affected individuals have enough commonality to be litigated all at once. Those safeguards are necessary to ensure that the aggregation of claims does not "abridge a party's substantive rights." Duran v. U.S. Bank Nat'l Ass'n, 325 P.3d 916, 935 (Cal. 2014). Compounding the problem, the court below prohibited petitioners from investigating the claims of any affected individual and thus from even attempting to mount individual causation defenses. Pet. App. 9596, 15859. This Court has recognized that 9 "a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its statutory defenses to individual claims." WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011). This rule derives "from both class action rules and principles of due process." Duran, 325 P.3d at 935 (citing Williams, 549 U.S. at 353, and Lindsey v. Normet, 405 U.S. 56, 66 (1972)). If due process does not permit states to use the class action device to strip a defendant of defenses it would have in individual litigation, then it cannot permit California to strip petitioners of individual defenses by retroactively redefining "public right" to allow a quasi-class action disguised as a public nuisance claim without the procedural safeguards required in class actions. 2. Unreasonable interference. The decision below also redefined the traditional element of an "unreasonable interference." The only conduct giving rise to an "unreasonable interference" here was petitioners' pre-1951 promotion of lead-based paint, a legal product at the time. Pet. App. 36465. The court found this promotion misleading because it "necessarily implied" that interior use of lead-based paint was safe. Pet. App. 49. As explained in the petitions, this theory of liability raises obvious First Amendment concerns. But equally fundamental, it is yet another unprecedented application of the public nuisance doctrine. Petitioners could not possibly have received fair notice a century ago that mere speech promoting a lawful use of a lawful consumer product could be deemed an "unreasonable interference" under nuisance law. See Gore, 517 U.S. at 574. No pre-1951 court would have thought of expanding this term to cover such lawful and common activities. 10 The Court of Appeal's redefinition of the "unreasonable interference" element also, and not coincidentally, defeated the defenses that would be available to petitioners against recognized claims that their speech was misleading. The plaintiffs abandoned their fraud claim before trial, stipulating that there was no evidence of reliance. See Stipulation, at 1, Cty. of Santa Clara v. Atl. Richfield Co., No. 1-00-CV788657 (Cal. Sup. Ct. Aug. 13, 2012). But the same fraud allegations are now packaged into the newlycreated nuisance claim, without the need for proof that anyone relied on the supposedly misleading statements. Pet. App. 298. This ignores the timetested concept that a seller's "lies matter only if customers are deceived," see Int'l Broth. of Teamsters, Local 734 Health & Welfare Tr. Fund v. Philip Morris Inc., 196 F.3d 818, 823 (7th Cir. 1999) (Easterbrook, J.), and essentially imposes class-wide liability for speech without proof of reliance by even a single consumer, see Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 130203 (2010) (Scalia, J., in chambers) (expressing due process concerns about eliminating requirement to prove individual reliance). It is an understatement to say that California's new speechbased nuisance is a radical departure from "traditional practice[s]," Oberg, 512 U.S. at 430, and it smacks of "arbitrary and vindictive" liability assessed post hoc against "unpopular" defendants, see Landgraf, 511 U.S. at 266. 3. Creating the nuisance. Equally arbitrary is the Court of Appeal's application of the causation element in deciding that petitioners "created or assisted in creating" the nuisance. Pet. App. 4673. Proof of causation has always been a requirement in a public 11 nuisance case, and not even the court below was adventuresome enough to openly abolish that requirement. Instead, the court redefined it out of existence, finding it satisfied on the rationale that petitioners' speech "played at least a `minor' role in creating the nuisance that now exists." Pet. App. 65. But that minor role led to major liability because the court then held petitioners jointly and severally liable for abating all lead-based paint that may be found in any pre-1951 home on the theory that the presence of lead-based paint in 1.5 million separate homes is an "indivisible injury." Pet. App. 9294. This runs afoul of due process in numerous ways. As an initial matter, the court reached these conclusions without requiring evidence that the presence of lead-based paint in any particular home is linked to petitioners' pre-1951 speech. No home was examined; indeed, the court prohibited petitioners from doing so, in violation of the basic tenet that courts must afford an "opportunity to present every available defense." Williams, 549 U.S. at 353 (quotations omitted). As a result of the court's approach, petitioners will have to pay for the abatement of lead in countless homes where its existence has nothing to do with their speech. (In fact, petitioners first will have to pay to go looking for the "nuisance" they have been ordered to abate.) Petitioners are but a few of the numerous companies that promoted or sold leadbased paint for interior use in California in the decades-long period at issue. The notion that petitioners could have caused the presence of all the lead-based paint that may be present in those 1.5 million homes 12 is absurd. The court's application of the indivisible injury principle amounts to a presumption that petitioners' speech is responsible for any presence of interior lead-based paint in all of those pre-1951 homes, with no evidence to support it and no opportunity to rebut it. If such an outlandish prospect had crossed petitioners' minds at the time of the relevant conduct, they would have taken comfort in this Court's admonition that "a presumption that is arbitrary, or that operates to deny a fair opportunity to repel it, violates the due process clause." W. & Atl. R.R. v. Henderson, 279 U.S. 639, 642 (1929). The procedure employed below turns traditional practice on its head. A state cannot employ the indivisible injury rule to impose joint and several liability before determining where and what the injury actually is and without evidence that the defendant actually caused some of it; such a backwards approach would create too high a risk of error, violating the right to be free from arbitrary deprivations of property. The truth is that the alleged injury in this case is not one giant public nuisance in the "community" writ large, as the lower court pretended. Pet. App. 8384. If anything, it is a collection of private nuisances that supposedly exist in the homes of more than a million individuals, with no evidence that petitioners' pre-1951 speech contributed to each or any of them. See In re Fibreboard Corp., 893 F.2d 706, 71011 (5th Cir. 1990) ("[O]ne-on-one `traditional' modes [of adjudication] . . . find expression in defendants' right to due process"). 13 It would be hard to get more arbitrary than conclusively presuming something that is almost certainly untrue and then prohibiting any rebuttal. The consequence of the Court of Appeal's bizarre procedure is that petitioners face enormous liability for harms that may or may not exist and that petitioners may or may not have caused. See Paroline v. United States, 134 S. Ct. 1710, 1729 (2014) (defendants should be liable only for the consequences "of their own conduct, not the conduct of others"). Traditional procedures relating to causation would have prevented such "arbitrary and inaccurate adjudication." See Oberg, 512 U.S. at 430. Dispensing with traditional procedures so that 1.5 million individual, private nuisance claims could all be decided together was patently unfair and disregarded petitioners' due process rights. II. Left Undisturbed, The Decision Below Will Continue To Spawn Abusive Litigation This Court's intervention at this stage is critical. The decision below itself inflicts massive liability on petitioners, but its impact has already spread beyond this case. Just in the last twelve months, in federal courts alone, at least 80 new public nuisance cases of this sort have been filed by states and other government entities against American businesses, all seeking to impose sweeping liability based on similarly novel theories. Amicus App. 118. For example, the success in this case has apparently encouraged other local governments in California to file a string of copycat actions against various industries. See People of the State of Cal. v. BP P.L.C., Nos. 3:17-CV-06011 & 3:17-CV-06012 (N.D. Cal. filed Oct. 20, 2017) (fossil- 14 fuel companies allegedly liable for climate change); City of Long Beach v. Monsanto Co., No. 2:16-cv03493 (C.D. Cal. filed May 19, 2016) (manufacturers of PCBs allegedly liable for water contamination committed by others); Cty. of Mariposa v. Amerisourcebergen Drug Corp., No. 1:18-cv-00626 (E.D. Cal. filed May 7, 2018) (manufacturers and distributors of pain medication allegedly liable for harms caused by opioid abuse). And, unsurprisingly, government entities from around the country have followed suit, asserting public nuisance claims against American businesses for all sorts of problems in society. See Port of Portland v. Monsanto Co., No. 17CV-00015 (D. Or. Jan. 4, 2017); West Virginia v. McKesson Corp., No. 16-CV-01772 (S.D. W. Va. Feb. 23, 2016); see also Bloomberg News, Is the Public Nuisance Universe Expanding, available at https://www.bna.com/public-nuisance-universen57982083122/; Amicus App. 118. These circumstances call for this Court's swift intervention to resolve the constitutional questions presented by the petitions now. As one appellate court observed, "giving a green light to [this type of] common-law public nuisance cause of action today will . . . likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities." People ex rel. Spitzer v. Sturm, Roger & Co., Inc., 761 N.Y.S.2d 192, 196 (App. Div. 2003). Doing so would lead to "a proliferation of lawsuits" against manufacturers "of liquor, anti-depressants, SUVs, or violent video games--in order to address a myriad of societal problems." Ash- 15 ley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 672 (8th Cir. 2009). The decision below has done just that. The enormous judgment obtained here entices plaintiffs' attorneys to offer their services to other governmental entities for similar suits. Even jurisdictions that may disagree with California's radical expansion of the public nuisance doctrine have little choice but to join the new wave. After all, no state or municipality can afford to sit on the sidelines of a cash-grab while California uses its novel expansion to mulct America's businesses--mostly out-of-state businesses--to the tune of billions of dollars for the benefit of its own residents. See Blankenship v. Gen. Motors Corp., 406 S.E.2d 781, 783 (W. Va. 1991) (explaining that West Virginia had no choice but to follow other states in expanding its tort laws, because failing to do so would "only punish our residents severely without, in any regard, improving the system for anyone else"). Without this Court's intervention, the impact on commerce will be severe. The recent avalanche of public nuisance claims under the new California doctrine will bury American business in even greater litigation costs and burdens. Even if defendants manage to prevail, the cost of having to defend these massive suits is substantial and will add to the eightfigure amounts most large American businesses must already spend each year just in litigation expenses. See Litigation Cost Survey of Major Companies, U.S. Chamber Institute for Legal Reform For Presentation to Committee on Rules of Practice and Procedure Judicial Conference of the United States, 2010 Conference on Civil Litigation, Duke Law School (May 10 16 11, 2010) p. 2, available at http://www.uscourts. gov/sites/default/files/litigation_cost_survey_of_major _companies_0.pdf. In the end, the decision below, if left to stand, will turn public nuisance law into "a monster that . . . devour[s] in one gulp the entire law of tort." In re Lead Paint Litig., 924 A.2d 484, 505 (N.J. 2007) (quotation marks omitted). 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. See Oberg, 512 U.S. at 430; Rogers, 532 U.S. at 462; Danzer, 268 U.S. at 637; Gore, 517 U.S. at 574; Landgraf, 511 U.S. at 266. As then-Alabama Attorney General William Pryor once put it, the new wave of policy-focused government suits like this one "is the greatest threat to the rule of law today." William H. Pryor, Jr., Att'y Gen. of Ala., Address at the Reagan Forum: Fulfilling the Reagan Revolution by Limiting Government Litigation 2 (Nov. 14, 2000). The enormous size of the judgment below, its significant practical impact on commerce, and its spawning of copycat suits all make immediate review urgent. And it would be perverse to allow the questions presented to escape the Court's review just because of the sheer radicalness of the Court of Appeal's departures from "well-established common law protection[s]." Oberg, 512 U.S. at 430. 17 CONCLUSION The Court should grant the petitions. Respectfully submitted. STEVEN P. LEHOTSKY MICHAEL B. SCHON U.S. CHAMBER LITIGATION CENTER, INC. 1615 H Street NW Washington, D.C. 20062 (202) 463-5685 JEFFREY S. BUCHOLTZ Counsel of Record KING & SPALDING LLP 1700 Pennsylvania Ave. NW Washington, D.C. 20006 (202) 737-0500 jbucholtz@kslaw.com VAL LEPPERT KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, GA 30309 (404) 572-4600 Counsel for Chamber of Commerce of the United States of America August 17, 2018 APPENDIX APPENDIX App-i TABLE OF APPENDICES Appendix A Examples of Similar Public Nuisance Matters Filed in Federal Court Since August 1, 2017 ............................................ App-1 App-1 Appendix A Examples of Similar Public Nuisance Matters Filed in Federal Court Since August 1, 2017 No. Name Case No. Venue U.S. 1 Alleghany County v. AmerisourceBergen Drug Corporation, et al. 5:18-CV00129 District Court, Western District of North Carolina Amite County, Mississippi v. 2 Amerisourcebergen Drug Corporation, et al. 5:18-CV00009 U.S. District Court, Southern District of Mississippi Benton County, Mississippi v. 3 Amerisourcebergen Drug Corporation, et al. 3:18-CV00007 U.S. District Court, Northern District of Mississippi U.S. Birmingham, City of District 4 v. Amerisourcebergen Drug 2:17-CV- Court, 01360 Northern Corporation, et al. District of Alabama App-2 Bland County, Virginia v. 5 Amerisourcebergen Drug Corporation, et al. 7:18-CV00307 U.S. District Court, Western District of Virginia U.S. Broward County, 6 Florida v. Purdue Pharma L.P., et al. 0:18-CV60535 District Court, Southern District of Florida U.S. 7 Brunswick County v. AmerisourceBergen Drug Corporation, et al. 4:18-CV00017 District Court, Eastern District of North Carolina U.S. 8 Buncombe County v. AmerisourceBergen Drug Corporation, et al. 1:17-CV00310 District Court, Western District of North Carolina 9 Calhoun County South Carolina v. AmerisourceBergen Drug Corporation, et al. 5:18-CV01526 U.S. District Court, District of South Carolina App-3 Campbell County v. 10 Amerisourcebergen Drug Corporation, et al. 3:18-CV00006 Cherokee County, Alabama v. 11 Amerisourcebergen Drug Corporation, et al. 4:18-CV00172 City of Alexandria, 12 et al. v. Purdue Pharma L.P., et al. 1:18-CV00123 13 City of Delray Beach v. Purdue Pharma L.P., et al. 9:17-CV81384 City of Detroit, Michigan, 14 A Municipal Corporation v. Purdue Pharma L.P., et al. 2:17-CV14075 U.S. District Court, Eastern District of Tennessee U.S. District Court, Northern District of Alabama U.S. District Court, Southern District of Indiana U.S. District Court, Southern District of Florida U.S. District Court, Eastern District of Michigan App-4 City of Elyria v. 15 Purdue Pharma L.P., et al. 1:18-CV00017 City of Fort Payne, Alabama v. 16 Amerisourcebergen Drug Corporation, et al. City of Greenwood, Indiana v. 17 Amerisourcebergen Drug Corporation, et al. 4:17-CV01877 1:18-CV00047 City of Henderson v. 18 AmerisourceBergen Drug Corporation, 5:18-CV00278 et al. 19 City of Indianapolis, et al. v. Purdue Pharma L.P., et al. 1:17-CV04231 U.S. District Court, Northern District of Ohio U.S. District Court, Northern District of Alabama U.S. District Court, Southern District of Indiana U.S. District Court, Eastern District of North Carolina U.S. District Court, Southern District of Indiana App-5 City of Jacksonville 20 v. AmerisourceBergen Drug Corporation, et al. 7:18-CV00002 City of Jasper, Indiana v. 21 AmerisourceBergen Drug Corporation, et al. 3:18-CV00140 22 City of Marion, Alabama v. Actavis, LLC, et al. 2:18-CV00053 City of Princeton, 23 Illinois v. Actavis LLC, et al. 4:18-CV04088 City of Tuskegee, 24 Alabama v. Purdue Pharma L.P., et al. 3:18-CV00423 U.S. District Court, Eastern District of North Carolina U.S. District Court, Southern District of Indiana U.S. District Court, Southern District of Alabama U.S. District Court, Central District of Illinois U.S. District Court, Middle District of Alabama App-6 25 The City of Winfield, Alabama v. Purdue Pharma LP, et al. 6:18-CV00800 County of Dallas v. 26 Cardinal Health Inc., et al. 3:18-CV00426 27 County of Genesse v. Purdue Pharma LP, et al. 4:17-CV14074 County of Harris v. 28 Purdue Pharma L.P., et al. 4:18-CV00490 County of Huerfano 29 v. Purdue Pharma L.P., et al. 1:18-CV00219 U.S. District Court, Northern District of Alabama U.S. District Court, Northern District of Texas U.S. District Court, Eastern District of Michigan U.S. District Court, Southern District of Texas U.S. District Court, District of Colorado App-7 County of Marin v. 30 Purdue Pharma L.P., et al. 3:18-CV02730 31 County of Riverside, et al. v. Purdue Pharma L.P., et al. 5:18-CV01372 County of Siskiyou 32 v. Amerisourcebergen Drug Corporation, et al. 2:18-CV01167 Crip County Georgia 33 v. Amerisourcebergen Drug 1:18-CV00036 Corporation, et al. Darke Cty. Comm'rs 34 v. Amerisourcebergen Drug Corp., 2:17-CV01064 et al. U.S. District Court, Northern District of California U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Middle District of Georgia U.S. District Court, Southern District of Ohio App-8 Delaware County Board of County 35 Commissioners v. AmerisourceBergen Drug Corporation, et al. Eastern Band of Cherokee Indians v. 36 AmerisourceBergen Drug Corporation, et al. Elbert County Georgia v. 37 AmerisourceBergen Drug Corporation, et al. Fairfield Board of County 38 Commissioners v. Amerisourcebergen Drug Corporation, et al. Fiscal Court of Greenup County v. 39 Amerisourcebergen Drug Corporation, et al. 2:18-CV00172 1:18-CV00004 3:18-CV00038 2:17-CV01012 0:17-CV00105 U.S. District Court, Southern District of Ohio U.S. District Court, Western District of North Carolina U.S. District Court, Middle District of Georgia U.S. District Court, Southern District of Ohio U.S. District Court, Eastern District of Kentucky App-9 Flandreau Santee 40 Sioux Tribe, et al. v. Purdue Pharma 4:18-CV04003 L.P., et al. Floyd County, 41 Kentucky v. Purdue Pharma L.P., et al. 7:17-CV00186 Forrest County, Mississippi v. 42 Amerisourcebergen Drug Corporation, et al. Franklin County Board of County 43 Commissioners v. AmerisourceBergen Drug Corporation, et al. 2:18-CV00009 2:18-CV00077 Hancock County v. 44 Amerisourcebergen Drug Corporation, et al. 2:18-CV00010 U.S. District Court, District of South Dakota U.S. District Court, Eastern District of Kentucky U.S. District Court, Southern District of Mississippi U.S. District Court, Southern District of Ohio U.S. District Court, Eastern District of Tennessee App-10 45 Harrison County, Indiana v. Cardinal Health, Inc., et al. 4:18-CV00003 Humphreys County, 46 Mississippi v. Purdue Pharma, 4:17-CV00190 L.P., et al. Jackson County Board of County 47 Commissioners v. Amerisourcebergen Drug Corporation, et al. 2:17-CV00680 Jefferson County Commission v. 48 Purdue Pharmaceutical Products, LP, et al. 3:17-CV00144 Jefferson Davis County, Mississippi 49 v. Amerisourcebergen Drug Corporation, et al. 2:17-CV00200 U.S. District Court, Southern District of Indiana U.S. District Court, Northern District of Mississippi U.S. District Court, Southern District of Ohio U.S. District Court, Northern District of West Virginia U.S. District Court, Southern District of Mississippi App-11 Jennings County v. 50 Purdue Pharma, L.P., et al. 4:18-CV00006 Johnson County v. 51 Amerisourcebergen Drug Corporation, et al. 2:18-CV00003 Lawrence County, Mississippi v. 52 Amerisourcebergen Drug Corporation, et al. 2:17-CV00199 Leslie County Fiscal Court v. 53 Amerisourcebergen Drug Corporation, 6:17-CV00249 et al. Lexington-Fayette Urban County 54 Government v. Amerisourcebergen Drug Corporation, et al. 5:17-CV00442 U.S. District Court, Southern District of Indiana U.S. District Court, Eastern District of Tennessee U.S. District Court, Southern District of Mississippi U.S. District Court, Eastern District of Kentucky U.S. District Court, Eastern District of Kentucky App-12 Licking County Board of County 55 Commissioners v. Amerisourcebergen 2:17-CV00904 Drug Corporation, et al. Logan County Board of County 56 Commissioners v. Amerisourcebergen 2:17-CV01097 Drug Corporation, et al. Madison County Fiscal Court v. 57 Amerisourcebergen Drug Corporation, et al. 5:17-CV00371 58 Marshall County v. Purdue Pharma LP, et al. 3:18-CV00046 Monroe County Georgia v. 59 Amerisourcebergen Drug Corporation, et al. 5:18-CV00167 U.S. District Court, Southern District of Ohio U.S. District Court, Southern District of Ohio U.S. District Court, Eastern District of Kentucky U.S. District Court, Northern District of Indiana U.S. District Court, Middle District of Georgia App-13 Montgomery County, U.S. Kansas v. 60 AmerisourceBergen Drug Corporation, 2:18-CV02311 District Court, District of et al. Kansas Morgan County, Alabama v. 61 Amerisourcebergen Drug Corporation, et al. 5:18-CV00170 U.S. District Court, Northern District of Alabama U.S. 62 City of Nashua, NH, v. Purdue Pharma, L.P., et al. 1:17-CV00730 District Court, District of New Hampshire U.S. Orange County v. 63 Amerisourcebergen Drug Corporation, et al. 1:18-CV00192 District Court, Middle District of North Carolina 64 People of the State of Illinois, et al. v. Amerisourcebergen Drug Corporation, et al. 3:17-CV01342 U.S. District Court, Southern District of Illinois App-14 Perry County Fiscal Court v. 65 Amerisourcebergen Drug Corporation, et al. Pulaski County Fiscal Court v. 66 Amerisourcebergen Drug Corporation, et al. Randolph County v. 67 Amerisourcebergen Drug Corporation, et al. Saginaw County v. 68 Purdue Pharma L.P., et al. Shelby County Fiscal Court v. 69 Amerisourcebergen Drug Corporation, et al. 6:17-CV00265 6:17-CV00264 1:18-CV00157 1:17-CV14076 3:17-CV00072 U.S. District Court, Eastern District of Kentucky U.S. District Court, Eastern District of Kentucky U.S. District Court, Middle District of North Carolina U.S. District Court, Eastern District of Michigan U.S. District Court, Eastern District of Kentucky App-15 Smyth County Virginia v. 70 Amerisourcebergen Drug Corporation, et al. 1:18-CV00028 U.S. District Court, Western District of Virginia U.S. 71 St. Joseph County v. Purdue Pharma LP, et al. 3:18-CV00243 District Court, Northern District of Indiana U.S. St. Martin Parish v. District 72 AmerisourceBergen Drug Corporation, 3:18-CV- Court, 00569 Middle et al. District of Louisiana U.S. Stokes County v. 73 AmerisourceBergen Drug Corporation, et al. 1:18-CV00070 District Court, Middle District of North Carolina Stone County, Mississippi v. 74 Amerisourcebergen Drug Corporation, et al. 1:18-CV00175 U.S. District Court, Southern District of Mississippi App-16 Talladega County, 75 Alabama, et al. v. Cardinal Health Inc., et al. The Menominee 76 Indian Tribe of Wisconsin v. Purdue Pharma LP, et al. The Nicholas County Commission 77 v. AmerisourceBergen Drug Corporation, et al. The People of the 78 State of California v. BP P.L.C., et al. The People of the 79 State of California v. BP P.L.C., et al. 1:18-CV00152 1:18-CV00414 2:18-CV00421 3:17-CV06012 3:17-CV06011 U.S. District Court, Northern District of Alabama U.S. District Court, Eastern District of Wisconsin U.S. District Court, Southern District of West Virginia U.S. District Court, Northern District of California U.S. District Court, Northern District of California App-17 Town of Palmer, Massachusetts v. 80 Amerisourcebergen Drug Corporation, et al. Twiggs County Georgia v. 81 Amerisourcebergen Drug Corporation, et al. Vance County v. 82 AmerisourceBergen Drug Corporation, et al. Washington County, 83 Mississippi v. Purdue Pharma, L.P., et al. Watauga County v. 84 AmerisourceBergen Drug Corporation, et al. 3:18-CV30079 5:18-CV00101 5:18-CV00277 4:17-CV00191 5:18-CV00064 U.S. District Court, District of Massachus etts U.S. District Court, Middle District of Georgia U.S. District Court, Eastern District of North Carolina U.S. District Court, Northern District of Mississippi U.S. District Court, Western District of North Carolina App-18 Wilkinson County Georgia v. 85 AmerisourceBergen Drug Corporation, et al. Williams County Board of County 86 Commissioners v. AmerisourceBergen Drug Corporation, et al. Williamson County, Tennessee v. 87 AmerisourceBergen Drug Corporation, et al. 5:18-CV00169 3:18-CV00602 3:18-CV00008 U.S. District Court, Middle District of Georgia U.S. District Court, Northern District of Ohio U.S. District Court, Middle District of Tennessee