The Sherwin-Williams Company v. Delaware County, Pennsylvania, et al.

Fundamental in this Court’s Article III jurisprudence is the principle that the federal courts are open to hear federal claims for declaratory and injunctive relief when plaintiffs face a genuine threat of adverse government action. Yet, Petitioner The Sherwin-Williams Company was rejected at the courthouse door for lack of Article III standing after filing such an action to resolve ongoing and imminent violations of its federal constitutional rights. The claims derive from Respondent Delaware County’s use of contingency-fee counsel to bring a public nuisance lawsuit premised on Petitioner’s First Amendment protected activity. The County’s suit is part of a growing trend where governments delegate police power to financiallyinterested counsel, creating bias or an appearance of bias in government decision-making. It also reflects a wave of litigation hinging liability on First Amendment protected activity, such as lawful advertising and participation in trade groups. Both trends have confounded the courts and evaded federal review. The questions presented are:

1. Whether the Third Circuit violated clearly established precedent, in conflict with other Circuits, in denying Article III standing by considering the merits of Petitioner’s due process claim; and

2. Whether an alleged injury-in-fact is established for purposes of Article III standing where, as this Court and other Circuits have held, the government’s genuine threat to impose liability on a specific target based on its prior First Amendment conduct chills constitutionally protected speech.