I was recently contacted by LexisNexis^® Mealey’s Litigation Report: Lead regarding my work on the Sherwin-Williams (SHW) litigation. The following is what appeared: The full report can be purchased here

Massachusetts Investor: Shareholder Lawsuit Needed Against Plaintiff Attorneys

BOSTON – Shareholders who own stock in the companies being sued under public nuisance law for producing lead paint and pigment should sue the plaintiff attorneys pursuing such litigation, a Massachusetts investor told Mealey Publications on March 29.

Todd Sullivan, a self-described value investor, said he is exploring the possibility of suing the plaintiff attorneys Motley Rice and the Rhode Island Attorney General’s Office in connection with the case brought on behalf of the State of Rhode Island (State of Rhode Island v. LIA, No. 99-5226, R.I. Super., Providence Co.).

Litigation ‘Wrong’

Sullivan said that the litigation against Sherwin-Williams and others is “wrong” and that the former makers of paint and pigment should be paid restitution for their defense costs.

The money being spent on litigation should be spent on growing the companies, Sullivan said.

Sullivan said that based on conversations with attorneys, he is confident that the Rhode Island lawsuit will move to the federal level as defense counsel file a case on constitutional grounds.

Shareholder Action

Once in federal court, Sullivan said, he is “sure it will be overturned.”

Should that happen, Sullivan said he would file a case on behalf of shareholders, alleging that the plaintiff attorneys’ actions devalued the defendants’ stock and that the companies should be compensated.

Furthermore, Sullivan said the combination of federal action and a shareholder lawsuit will have a chilling effect on other jurisdictions, such as Ohio.

Otherwise, Sullivan said, “we are looking at the next wave of corporate bankruptcies.”

• Lynch received his bachelor’s degree from Brown University in 1987 and his law degree from Suffolk University. While at Brown, he led the basketball team to its only Ivy League championship in1986, winning all-Ivy League honors in his senior year. It really makes his proclamation to the press at briefing regarding DuPont settlement, “What makes this announcement so gratifying is that this money will go straight to cleaning up the mess” even more revolting… doesn’t it? Way to help Rhode Island’s children Pat.

• Please email me. I do not always get a chance to review the comments on a post and if you are commenting on something that was posted days ago, with activity on the site surging, I may not get to it. Enhanced Features Subscribers always get top priority but I will try to get to all of you. As the numbers of site visitors grow each day the delay here may be longer. Do yourself a favor, just buy the subscription for $6.99 a month and guarantee a fast reply. Think of it this way, if you had bought just 10 shares of each stock I recommended when I recommended it, you would have paid for 41 months of the subscription already. It’s a no brainer.

• Click this link. Then place your mouse on the spreadsheet and scroll it to view securities and results in the portfolio as well as the stocks on the “avoid” list. The portfolio should automatically update every 5 minutes and prices are on a 20 min. delay.

• I received an email on this from a reader and seem to have lost the email. He wanted to know of this was a buy. Reader, I see no reason to buy this. It’s financial performance has been dead flat for 5 years now. This is especially disappointing since railroads have experienced a renaissance the last two years and they seem to have missed out on it. If you want a railroad, go with CSX. They are the main transported of goods from the Midwest to the east. Basically, if the east coast needs ethanol, CSX brings it to them. I have owned it for a year and a half now and done very well with it but do not think it presents a “value” at these prices. However, if you really want a railroad, go for it.
• Sorry for the delay

• I was recently interviewed by them regarding the Sherwin-Williams (SHW) litigation and the text of the interview will appear in tomorrow’s post.

• In People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (“Clancy”), the California Supreme Court “evaluate[d] the propriety of a contingent fee arrangement between a city government and a private attorney whom it hired to bring abatement actions under the city’s nuisance ordinance.” (Clancy, 39 Cal.3d at 743.) The California Supreme Court explained that “the contingent fee arrangement between the City and Clancy is antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public nuisance abatement action. In the interests of justice, therefore, we must order Clancy disqualified from representing the City in the pending abatement action.”
• Clancy is applicable to the instant case. Plaintiffs fail to persuasively distinguish Clancy, or otherwise persuasively articulate why their fee arrangements with outside counsel are proper. Plaintiffs’ main argument is that the government attorneys continue to retain and/or exercise decision-making authority and control over the litigation in this case.1 The fact remains, however, that outside counsel (i.e., Thornton & Naumes, Motley Rice LLC, and Mary Alexander and Associates for the City and County of San Francisco, and Cotchett, Pitre & McCarthy for most of the other public entities) are co-counsel in this case. They are performing work as attorneys for the plaintiff government entities, and consequently they are subject to the standard of neutrality articulated in Clancy. Oversight by the government attorneys does not eliminate the need for or requirement that outside counsel adhere to the standard of neutrality.
• Moreover, as a practical matter, it would be difficult to determine (a) how much control the government attorneys must exercise in order for a contingent fee arrangement with outside counsel be permissible, (b) what types of decisions the government attorneys must retain control over, e.g., settlement or major strategy decisions, or also day-to-day decisions involving discovery and so forth, and (c) whether the government attorneys have been exercising such control throughout the litigation or whether they have passively or blindly accepted recommendations, decisions, or actions by outside counsel. Plaintiffs in their opposition characterize outside counsel as “collaborators.” (See Pls.’ Mem. Opp. Motion, at 8:21-22.) Given the inherent difficulties of determining whether or to what extent the prosecution of this nuisance action might or will be influenced by the presence of outside counsel operating under a contingent fee arrangement, outside counsel must be precluded from operating under a contingent fee agreement, regardless of the government attorneys’ and outside attorneys’ well-meaning intentions to have all decisions in this litigation made by the government attorneys.
• Accordingly, Defendants’ motion for an order precluding Plaintiffs from retaining outside counsel under any agreement in which the payment of fees and costs is contingent on the outcome of the litigation is GRANTED.

• “We strongly request that Attorney General Marc Dann not proceed with his lawsuit against paint manufacturers in Ohio. This lawsuit would send the wrong message about our desire to bring business and jobs to our state.
• “We have made significant progress in attracting new investments and jobs to Ohio with our recently-passed legal and tax reforms – as evidenced by Ohio’s number one ranking in Site Selection for investment in 2006. We need to build on this progress, not take a step backward with lawsuits against Ohio employers.”

The acquisition of Nitco Paints is just the beginning of Sherwin-Williams’ journey in India, Christopher Connor, chairman and CEO of Sherwin-Williams, told DNA Money on Wednesday. “There is more to come soon,” he said on the sidelines of an event to announce the acquisition of Nitco Paints.

Sources further said that Sherwin-Williams has drawn up a huge spread for India, involving exclusive retail outlets across the country and entering into exclusive tie-ups with leading real estate developers and builders for exterior paints Sanjiv Batra, CEO, Sherwin-Williams India, though, said, “I can’t disclose any future acquisition plans or fund allocations at this moment, but the company will grow at a rapid speed in the next few quarters.”

“Save your frightened song for when there is really something wrong! Don’t cry ‘wolf’ when there is NO wolf!” The Boy Who Cried Wolf , Aesop’s Fables

In case you missed it today and I think you would have had to have had no contact with the outside world in order to, researchers once again predicted an above normal hurricane season. Excuse me while I yawn at this one. In order to fully understand the true depth of my ambivalence, one must take a walk down memory lane and look at past hurricane forecasts. I am only going to go back the last 5 seasons here just to make a point:

• April 3, 2007: The 2007 Atlantic U.S. hurricane season will be “much more active” than average, with nine hurricanes – five of them reaching Category 3, 4 or 5 – and 17 named storms, according to a forecast Tuesday from Colorado State University researchers.The researchers lifted their forecast from early December because of the “rapid dissipation” of El Niño over the past few months. “Tropical and North Atlantic sea surface temperatures remain well above their long-period averages,” a trend commonly associated with an active Atlantic basin hurricane season and lower-than-normal sea level pressures, wrote researchers Philip Klotzbach and William Gray. “We expect the 2007 hurricane season to be very active.”
• May 22, 2006 — NOAA today announced to America and its neighbors throughout the north Atlantic region that a very active hurricane season is looming, and encouraged individuals to make preparations to better protect their lives and livelihoods. “For the 2006 north Atlantic hurricane season, NOAA is predicting 13 to 16 named storms, with eight to 10 becoming hurricanes, of which four to six could become ‘major’ hurricanes of Category 3 strength or higher,”
• May 16, 2005 — NOAA hurricane forecasters are predicting another above-normal hurricane season on the heels of last year’s destructive and historic hurricane season. “NOAA’s prediction for the 2005 Atlantic hurricane season is for 12 to15 tropical storms, with seven to nine becoming hurricanes, of which three to five could become major hurricanes,”
• NOAA’s 2004 Atlantic hurricane season outlook indicates a 50% probability of an above-normal hurricane season, a 40% probability of a near-normal season, and a 10% chance of a below-normal season, according to a consensus of scientists at the National Oceanic and Atmospheric Administration’s (NOAA) Climate Prediction Center (CPC), the Hurricane Research Division (HRD), and the National Hurricane Center (NHC). See NOAA’s definitions of above-, near-, and below-normal seasons. The outlook calls for 12-15 tropical storms, with 6-8 becoming hurricanes, and 2-4 of these becoming major hurricanes. These numbers reflect a predicted ACE index in the range of 100%-160% of the median, and indicate a likely continuation of above-normal activity that began in 1995.
• NOAA’s 2003 Atlantic hurricane season outlook indicates a 55% probability of an above-normal Atlantic hurricane season in 2003, a 35% probability of a near-normal season, and only a 10% chance of a below-normal season, according to a consensus of scientists at the National Oceanic and Atmospheric Administration’s (NOAA) Climate Prediction Center (CPC), the Hurricane Research Division (HRD), and the National Hurricane Center (NHC). See NOAA’s definitions of above-, near-, and below-normal seasons. The 2003 outlook calls for 11-15 tropical storms, with 6-9 becoming hurricanes, and 2-4 becoming major hurricanes.

The real question here the talking heads on TV ought to be asking is: “when haven’t they predicted an active season”? The answer? I do not know because the NOAA archives only go back to 1999 and only 2001 predicted a benign forecast of “normal to slightly above normal” hurricane activity. Every other year has featured an apocalyptic forecast. What do we as investors do then? This answer is easy, nothing. Meteorologists cannot even tell me with any significant accuracy if it is going to rain or not this weekend yet we are supposed to believe they can now predict a certain number of storms are going to form off the coast of Africa over 3,000 miles away and hit the states during the next 6 months? No way…..It is a fools bet. One also has to notice as they read the forecasts: “Why are they all basically the same?” 12-15 storms, 6-8 hurricanes, 2-4 majors. If every forecast is for the same number of storms, isn’t that then, “normal”?

But, what if they are right you ask? Well, if they are, there is nothing you can do about it so getting all worked up and trying to adjust your holdings now to reflect that is a lesson in futility. If you own stock in construction related companies (OC ), (SHW ), (HD ), (LOW ), you will benefit as repairs will boost sales. If you own USO and a storm hits the gulf, the increase in oil prices will benefit you. If oil goes up, ethanol companies like ADM benefit. If you own stocks in entertainment companies, you will suffer as this discretionary income will go toward other uses.

The really ugly truth is that hurricanes, unless they are Cat. 4 or 5 and cause massive damage to a major city and port like Katrina did, are not bad for the economy and actually provide a stimulus. After the brief interruption during and immediately after the storm, the rebuilding increases economic activity. When you have a slowing housing market and laborers out of work, nothing will put them back to work faster than a CAT-3 hurricane that damages 100,000 homes. No, I am not rooting for hurricanes and no, I am not hoping to profit from them, (though the ValuePlays Portfolio will) I just need to interject a little reality here to help you wade through the barrage of inane hysteria you are being assaulted with today.

What happens in the aftermath of a hurricane? Homes and businesses are damaged and /or destroyed and cleanup and repair then begins. Immediately federal and state funds flow into the area to clean up the mess providing additional jobs and money. Then, insurance proceeds come pouring in to add even more stimulus and jobs as residents try to rebuild thousands of homes and businesses at once . Of course there are areas of suffering and that cannot be avoided, but in the aggregate, there is a significant economic stimulus to the area for years to come.

The bottom line is that it has become painfully apparent we are always going to get a forecast that is for “above normal” hurricane activity. Worrying about it or trying to adjust your portfolio for this presumed alleged event in April is a colossal waste of time.

The phrase “to cry wolf“, derived from the fable, refers to the act of persistently raising the alarm about a non-existent threat, with the implication that the person who cried wolf would not be taken seriously should a real emergency take place. It can also be used to describe an alarm system that regularly goes off falsely, causing it not to be believed when a real emergency occurs.

Forecasters beware…

Here are the most read stories for the month of March:

1. The ValuePlays Portfolio
2. Sherwin Williams- No Lead Threat
3. Ethanol: Debunking A Few Myths
4. Taking “A Leap”
5. Housing: Enough Already!

Site traffic surged again this past month as subscribers rose 50% and daily traffic jumped 78% for the month (140% the past 2 weeks). Keep forwarding the daily email to family and friends and encourage them to sign up themselves, the more of us there are the better for all of us.

• I have added an email link on the main page. Feel free to email me thoughts and ideas for stocks or general investing. I do not always get a chance to review the comments on a post and if you are commenting on something that was posted days ago, chances are I may not get to it. Enhanced Features Subscribers always get top priority but I will try to get to all of you. As the numbers of site visitors grow each day the delay here may become longer. Do yourself a favor, just buy the subscription for $6.99 a month and guarantee a fast reply. Think of it this way, if you had bought just 10 shares of each stock I recommended when I recommended it, you would have paid for 41 months of the subscription already. It really is a no brainer.
• Criticism and /or complaints are welcome also just, keep them constructive. I can promise insulting or otherwise inappropriate emails to me or other “commenters” will be deleted immediately and the email address blocked. If you are so inclined to send one, make it a good one because it will be the last.
• I am always looking for way to better the site and frequent visitors at times have noticed some odd things as I learn programing code “on the fly” as they say. Feel free to email any ideas to me. I cannot promise I will act on them but they will be considered. Any legitimate suggestion to better your experience on the site will get serious consideration.
• Stock or investing ideas are welcome and may be used in a future post. For your privacy, your email address will not (unless you want it to be).

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Since the US crop report is coming out in 15 minutes this morning at 8:30 am, I though I should comment on it since I have been both an advocate and investor in renewable fuel for quite some time through Archer Daniels Midland (ADM). First things first, the crop report. Estimates for corn are an increase of 10 million acres for a total of 88 million acres being planted. My estimate is a minimum of 90 million acres. People for far too long have underestimated both the US farmer and the ethanol industries desire and ability to make ethanol a staple fuel source. Things begin to really change this summer. $4 a gallon gas will be reached and this will be the summer consumers finally have had enough and start to rise up in chorus to demand more ethanol at their pumps.

Currently ethanol is blended in 3% of gas in the US. We could up that number to 10% and need no modifications to any vehicle on the road. Million of people are driving E85 capable vehicles and are not even aware of it. My 2005 Suburban bought in Massachusetts for example, can run on E85 and I would be using it were it available. I would, and ever study done to date has confirmed that people would be willing to pay more for a home grown fuel than for gas from oil from the middle east.

The renewable fuels standard President bush signed in 2005 called for refiners to use 4.7 billions gallon of ethanol by the end of 2007 and it increases gradually to 7.4 billion gallon by 2012. Many ethanol critics use this as proof that were it not for the mandate, ethanol would not be used. To illustrate why this is false one must consider that in 2006, 4.8 billion gallons were produced for a demand of 5.3 billion gallons. Were the mandate the only reason for ethanol demand, these numbers would not exist. By the end of 2008 a minimum of 8 billion gallons will be available and no slackening in demand is seen. Why? Ethanol extends gas supplies and keeps the cost of gas down. Demand for E85 in the Midwest cannot be met. In short, famrers and the ethanol industry have made the “required standard” irrelevant.

Has there ever been a product that the majority of Americans wanted that business did not find a way to produce affordably and in quantites to satisfy them? I can’t think of any either….Do not ever bet against American ingenuity

Here are some more ethanol tidbits:

FACT: In 2005, the ethanol industry supported the creation of more than 153,725 jobs in all sectors of the U.S. economy, boosting U.S. household income by $5.7 billion.

Ethanol industry operations and spending for new construction added $1.9 billion of tax revenue for the Federal government and $1.6 billion for state and local governments. And the combination of spending for annual plant operations and capital spending for new plants under construction added more than $32.2 billion to gross output in the U.S. economy.

Source: Contribution of the U.S. Ethanol Industry to the Economy of the U.S. in 2005

FACT: By increasing the demand for corn, and thus raising corn prices, ethanol helps to lower federal farm program costs.

In 2004, USDA estimates ethanol production reduced farm program costs by $3.2 billion.

FACT: Ethanol refineries serve as local economic power houses. Click here for information on how a 50 and 100 million gallon ethanol refinery can benefit your community.

FACT: If ethanol were removed from the market, a shortfall would have to be made up from expensive imports.

Gasoline prices would increase 14.6% in the short term (36.5 cpg if gas is $2.50/gal). Prices would increase 3.7% in the long term (9.25 cpg if gas is $2.50/gal) even after refiners built new capacity or secured additional sources of supply.

Source: LECG, LLC, May 2004

FACT: The federal ethanol program generates revenue for the U.S. Treasury.

The federal ethanol incentive, which is available to gasoline marketers and oil companies (not ethanol producers) as an incentive to blend their gasoline with clean, domestic, renewable ethanol, is a cost-effective program. It actually returns more revenue to the U.S. Treasury than it costs, due to increased wages and taxes and reduced unemployment benefits and farm program payments, while at the same time holding down the price of gasoline and helping the American farmer.

The federal ethanol program was established following the OPEC oil embargoes of the 1970s, which exposed our dangerous dependence on imported oil. As an alternative to petroleum, ethanol directly displaces imported oil and reduces tailpipe emissions while helping to bolster the domestic economy. Yet today we import more petroleum than ever before. With rising crude oil prices and increasing international instability, incentives for production and use of domestic ethanol are critical.

We have subsidized the oil industry substantially since the early 1900s, and continue to do so. In fact, according to the General Accounting Office in an October 2000 report, the oil industry has received over $130 billion in tax incentives just in the past 30 years – dwarfing the roughly $11 billion provided for renewable fuels. During this time, U.S. oil production has fallen while annual U.S. ethanol production has grown dramatically.(GAO/RCED-00-301R)

Recently I have been corresponding with several readers about their holdings and and in the course of our conversations, I suggested to many of them that they enroll in a DRIP plan for a certain security. Many of them did not know what they were, how they worked or how they helped their investments. So naturally, when I have a bunch of folks asking the same question, it then becomes time for a post about it.

First things first: What is a DRIP plan? It is short for “dividend re-investment plan”. Now the next question you probably have is what does that mean? It means that instead of getting cash each time the company you have stock in pays a dividend, they give you more stock. What does this do for you? A couple of things

• It allows you to acquire more stock without paying brokerage fees (commissions)
• Keeps dividends in your account accruing, rather than being spent.
• Increases your return on the original investment at a greater rate than had you just received them in cash (more on this below).
• Dividends are only taxed at 15%, so compounding your returns via them vs. ordinary income reduces your tax burden.

Now, how does all this work? Lets go through an example. I will make it as simple as possible but as usual, please email me any questions. We are buying stock in ABC Corp. We buy 100 shares at $20 a share for a total investment of $2000. ABC pays an annual dividend of $1 a share (5%) that increases 10% annually. Now, for simplicity, lets assume that the price of ABC stock never changes for 10 years and stays the same as we bought it at, $20. This way we can measure the true effect of the DRIP plan.

After 10 years, the no-drip plan investment would have returned to you $1593.74 in dividends for a total return on your original $2000 investment of 79%, or a average of 7.9% annually.

Now, lets look at what a DRIP plan can do to those same results. Remember, we are now getting our dividends in stock, not cash. This means that our results are going to be compounded by the extra shares we will be receiving which we will then be receiving dividends on. I will go through the first few years and then extrapolate it out to the final result:

Year 1
Shares = 100
Dividend = $100 or 5 more shares ($100 divided by the $20 a share price)
Non-DRIP plan dividend= $100

Year 2
Shares= 105 (100 + 5 from year 1 dividend)
Dividend= $115 or 5.75 more shares ($115 divided by the $20 a share price)
Non-DRIP dividend = $110

Year 3
Shares = 110.75 (105 + 5.75)
Dividend= $134 or 6.7 more shares ($134 divided by the $20 a share price)
Non-DRIP dividend= $121

You can see that after only 3 years, because our dividends are buying us more shares, we are increasing our annual dividend over the no-drip holders. Lets fast forward to the end of the ten years and see where we end up

Year 10
Shares= 191.84
Dividend= $450 or 22.5 more shares
Non-DRIP dividend= $235.79

At the end of ten years, the DRIP plan has a total of 214.48 shares in the account. At the stable price of $20 a share, this brings the DRIP account value to $4,289.60 for a gain of 114% or 11.4% annually. This also means that the drip plan delivered a 48% greater return than the non DRIP plan.

Drips also have the advantage of protecting you if the stock price drops. Should the price of the stock drop, your drip plan is purchasing you MORE shares of the company. This is in a way an insurance policy.

Enrolling in a DRIP usually takes less that a minute. If you use a broker like E*trade, you can do it online without filling out a form. Just click and submit.

DRIP plans are an easy way to increase your returns without doing any extra work on your end. Remember, these results were accomplished without the price of the stock increasing a single penny!! Had it increases at all, the returns would have been magnified.

“I got the best deal that was available,” Patrick Lynch, RI Attorney General commenting on Lead Paint settlement with DuPont

“What makes this announcement so gratifying is that this money will go straight to cleaning up the mess”. Lynch commenting to press at announcement

“Just…..follow the money” Deep Throat, All The President’s Men


Have you ever turned over a compost pile? The more you dig and the deeper you get into it, the more it smells. I am getting the same whiff as I dig deeper into the Rhode Island Lead Paint litigation.

The first trial against lead paint manufacturers ended in a hung jury in 2002, before the start of the second trial, Patrick Lynch, Rhode Island’s Attorney General, announced that he settled the State’s claims against the DuPont Co. Interestingly,however, it appears that the settlement may not be a ‘‘settlement.’’ Both Lynch and DuPont (DD ) say the deal was not a legal settlement but simply an agreement. Because it is not a settlement, DuPont is not giving money to the state. In return for dropping DuPont from its lawsuit, DuPont agreed to donate $12.5 million to charity. Moreover, because it was not a ‘‘settlement,’’ Lynch’s private law firms had to agree to waive their customary attorneys’ fees. Specifically, the settlement requires DuPont to donate $9 million to the Children’s Health Forum, $1 million to Brown University and $2.5 Million to the Dana-Farber/Brigham and Women’s Cancer Center in Boston. Lynch’s office described the DuPont deal as a major victory for the state because at the time of the agreement, it was unclear whether Rhode Island would ever see a penny from the lawsuit that already had one trial end with a hung jury. At first blush, this settlement appears to be a reasonable deal for Rhode Island.

However, as the old saying goes, ‘‘the Devil is in the details’’– and those details came to light in 2006. At the time of the settlement, Attorney General Patrick Lynch described Children’s Health Forum (‘‘CHF’’) as a national nonprofit organization focused on preventing childhood exposure to lead. He failed to mention, however, that:

1. The Washington-based Children’s Health Forum was founded in 2002 by a lawyer hired by DuPont to work on lead poisoning issues.
2. It has received most of its funding from DuPont
3. Most of its board members have ties to DuPont.
4. CHF leases its office space from the Dewey Square Group, a high-powered Washington lobbying and public-affairs firm that DuPont uses as its consultant on ‘‘communications’’ issues, including lead paint.

If that was not enough, CHF’s executive director, Olivia Morgan, is a partner in the Dewey Square Group. Lynch’s spokesman claims that the attorney general did not know the group had a relationship with DuPont when he struck the deal, and DuPont is silent about whether it ever informed the attorney general about its relationship with CHF. While Lynch may have been ignorant about DuPont’s relationship with CHF, his chief of staff, Leonard Lopes, who sat in on talks with Du-Pont, was aware that there was a relationship between the two. Thus, $9 million of the $12.5 million ‘‘agreement’’ is being controlled by a Washington, D.C., based charitable group with extremely close ties to DuPont. Interestingly, there is no written agreement stating how CHF is to spend the DuPont donation.While CHF is supposed to dole the monies out to groups in Rhode Island, that apparently will seek it through an advisory commission set up by Lynch, CHF could arguably spend the money in any manner it chooses.

The International Mesothelioma Program at Brigham and Women’s Hospital.

Although DuPont was unwilling to allow any money to be used as attorneys’ fees, it was willing to donate an equivalent amount ($2.5 million) to charity and asked Lynch to identify which charity he wanted to receive the money. Instead of deciding which Rhode Island charity should benefit from the $2.5 million DuPont gift, Lynch asked Jack McConnell (Motley Rice’s lead lawyer in the lead-paint case) if he had a favorite charity. Mr. McConnell identified the International Mesothelioma Program at Brigham and Women’s Hospital in Boston, Massachusetts. Lynch honored Motley Rice’s request and told DuPont to make the gift to that program. As a result, the money is not going to a Rhode Island hospital, it is going to a Boston hospital. Moreover, mesothelioma is not related to any lead-based health hazard. Mesothelioma is a deadly cancer of the tissue surrounding the lungs that is caused by exposure to asbestos. Hence, millions of dollars generated by resolution of claims against a major defendant in a “Rhode Island public nuisance case involving lead are going to a Massachusetts program that addresses asbestos related illnesses.

How such a diversion serves the public interest or benefits the public health of Rhode Island citizens is an unfathomable mystery. Motley Rice identified that charity because when the law firm joined the executive advisory board of the International Mesothelioma Program, it made a $3 million pledge to the program; a pledge that could be funded with monies raised from other sources, as opposed to a check written by the law firm or its lawyers. Thus,while Motley Rice agreed to waive its attorneys’ fees, it saw no problem with using equivalent monies to fund the majority of the firm’s financial obligation to the mesothelioma program. Motley Rice, however, is not the only law firm wanting monies to go to this program. It turns out that another law firm Lynch hired to serve as co-counsel on this case — Thornton & Naumes — also sits on the board of the mesothelioma program and also has a $3-million pledge to the same program. Neil Leifer, a Thornton & Naumes lawyer who worked on the lead case, said it ‘‘seems reasonable’’ that his firm should also receive a credit toward its $3 million pledge to Brigham and Women’s.

Both Motley Rice and Thornton & Naumes attempt to justify the monies being used to settle their pledges because they both waived their legal fees associated with the Rhode Island case. Donald A. Migliori, an attorney with Motley Rice, told the press that: ‘‘[w]e’tr not ashamed – this money isn’t going to pay our legal fees.; Our law firm’s work in asbestos litigation over the years has enabled us to finance the lead-paint litigation for the past nine years.’’Neil Leifer echoed a similar sentiment when he said it ‘‘seems reasonable’’ that his firm’s share of the waived legal fee should be credited toward the $3 million that it has pledged to Brigham and Women’s. ‘‘I’m not sure why it would be inappropriate.’’Some people, however, see things a bit differently. Leonard Decof, one of the state’s original lawyers in the lead-paint case, argues that $2.5 million is a‘‘de facto’’ legal fee, and that he is therefore entitled to a portion of this money for his past services. At this time, it is not certain whether any of the $2.5 million DuPont gift will be credited toward Motley Rice’s $3-million pledge. A spokesman for Brigham and Women’s said hospital officials have had no conversations with Motley Rice about whether the $2.5 million from DuPont will be credited toward the law firm’s pledge. According to DuPont’s spokeswoman, the company was not aware of Motley Rice’s ties to the mesothelioma program, but simply agreed to donate the $2.5 million to Brigham and Women’s as the charity designated by Lynch. DuPont has released a statement saying that it ‘‘has instructed the hospital that its payment should not be credited to any pledge or obligation of Mr. McConnell, his law firm, or any other entity.’’

The basis of tort law is the compensation of victims for wrongs committed against them. Everyday thousands of plaintiffs lawyers across the country fight for their clients. These are real people with real injuries. These lawyers do us all a service in that they assure our workplaces are safer, drivers exercise more caution, environmental laws are followed, the products we consume are made as safe as possible and when we are injured through the preventable negligence of others, we are compensated. Across our country each day people who’s lives would be ruined and left penniless due to injuries caused by another have it essentially saved by a plaintiffs lawyer fighting for them and assuring that those responsible are not allowed to just walk away from their actions. You cannot fully appreciate the service these honest people perform until the day comes you are lying in a hospital bed, unable to work and provide for your family because of the careless actions of another and your lawyer prevents your total financial destitution. The Rhode Island lead paint litigation encompasses none of these scenarios and in one fell swoop tarnishes the situations of all tort victims. The genesis of the RI legal action was the “harmful effects of lead on the children of Rhode Island”. Yet when an “agreement” or “settlement” with a manufacturer is reached, not only does this money evade managing to find its way to the hands of these alleged “victims”, 92% of it does not even stay in the state of RI, and what did manage to stay there went to a private university, Brown (why not a public one like URI?) for research, not clean up efforts. The Brown University website makes no mention of the funds.

Recently, Lynch commented: “today’s ruling has enormously positive ramifications on the health, safety, and welfare of Rhode Island’s children.” It is a great sound bite, if only it were true. I am sure this is not the result the people of RI hoped for when they read about the settlement in the newspapers. Where is the voter outrage in RI? Do they enjoy being duped? Why aren’t they demanding the money be returned to Rhode Island? I have been unable, despite Mr. Lynch’s claims, to find any evidence that any of this money has actually been used to clean up a single Rhode Island home.

I was recently sent what I consider to be the most comprehensive lead paint analysis to date. Please read it here. It should also be noted portions of this post were taken from that report. A very interesting part is a section showing where lead currently exists in our lives and how that may be poisoning the children of Rhode Island, not paint.

Recently shareholders of corporation have become very aggressive legally with those inside the company who, through questionable or dubious actions, destroy shareholder value. It is time that we at Sherwin-Williams (SHW) get as equally aggressive with those outside the company. Let’s take the bull by the horns here. If not the state of RI, then the AG or theirlaw-firm, Motley Rice. Time to go on offense. I for one am getting sick of being on defense all day.

An interesting comment from a Wall St. insider in Jane Genova’s blog Law and More: …”damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit. This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue. From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.”

“Okay, pork belly prices have been dropping all morning, which means that everybody is waiting for it to hit rock bottom, so they can buy low. Which means that the people who own the pork belly contracts are saying, “Hey, we’re losing all our damn money, and Christmas is around the corner, and I ain’t gonna have no money to buy my son the G.I. Joe with the kung-fu grip! And my wife ain’t gonna f… my wife ain’t gonna make love to me if I got no money!” So they’re panicking right now, they’re screaming “SELL! SELL!” to get out before the price keeps dropping. They’re panicking out there right now, I can feel it.” Eddie Murphy, Trading Places

First let me apologize. In a previous post I stated I would not comment on housing anymore after “my initial” post. Conditions, however, force me to go back on my word. This must be done for a few reasons. First, I have received a host of emails from readers on the subject and do feel obligated to address them lest they think they are being ignored and second, I seem to be the only person who is not in the process of packing up my family, withdrawing all our cash from the bank, gathering whatever canned goods we can scrounge up and heading to the hills incoherently stammering like Hunter Thompson in some bizarre Y2K panic induced flashback.

Are you surprised?
Housing has been on a tear for the last decade. Before the last year and a half, things became insane. It is relatively easy to spot the beginning of the end in a bubble when you are not wrapped up in it. During the tech bubble in 1999-2000 when any mammal with an opposable thumb and a mouse could make money, that moment was arrived at when novel little things like earnings were no longer important and took a back seat to revenue growth, “website hits” and “click through” metrics. It was a time when a company could actually report quarterly numbers, have increasing losses, mounting debt, but because revenue and other internet traffic metrics grew, its stock would explode to the upside. The inevitable happened, people realized if a company is not able to earn a profit, or even demonstrate a realistic plan of how they might, it really is not worth $144 a share and the prices of these stocks then fell off a cliff. You also had prices of stocks in companies like Home Depot (HD) and Coke (KO) included by the frothing hoards in this mania. These were companies who actually had earnings, but were growing them at rates in the teens who were selling at 50 times those earnings. These companies, caught up in the euphoric irrationality of the millennium also suffered as people then realized that while these companies were actually able to earn a profit, paying 50 times them for companies who make screwdrivers and Coke had the same effect as getting married in Vegas after a weekend of drinking screwdrivers and doing coke. Both decisions in retrospect left people wondering what the hell they were thinking. The answer? They weren’t.

Enter housing. With people petrified of stocks and interest rates obscenely low, they poured money into housing. Predictably, prices soared. For a real example. My wife and I bought out first house in 1997 after we were married. We paid $107,000 for it and put about $20,000 of cosmetic changes into it (painting, some updated wiring and insulation). Three years later we sold it for $285,000. Our second house was bought for $117,000 and comped out 4 years later for $368,000. There is no logical reason for this. When we bought both houses they “comped” out similar to other houses in the area so we were not the recipients of an unusual bargain and when we sold them, similar “comps” applied so the buyers did not get “ripped off” compared to what other buyers were paying. The market was just clearly running as all buyers were paying these prices, the buyers and sellers were not insane, the market was. So when did the seams begin to come apart? Two words:

No Documentation
You really have to read this stuff to get an understanding of why the market ran up and why lenders are now in trouble. This is from Lending Tree.com:

There are three main categories of no-documentation mortgages:

1. NINA (no income, no asset) mortgages
How to qualify: NINA mortgages come the closest to being truly no-documentation loans. When you apply for one, you won’t need to supply information about your income, employment or assets. All the lender will check is your credit score and the assessed value of the property.
Interest rate: Because the lender is going on so little, your credit score needs to be very high to obtain this type of mortgage. If you are approved, your score will be a big factor in setting the interest rate, which will typically be 1 to 1.5 percent higher than a traditional mortgage, but may be as much as 3 percent higher.
Who it may be right for: People with excellent credit who do not want to disclose the details of their holdings; people who rigorously guard their privacy.

2. No-ratio mortgages
How to qualify: With a no-ratio mortgage you don’t need to declare your income, so a lender can’t calculate your debt-to-income ratio (your monthly loan payments divided by your monthly income — a ratio lenders usually prefer to remain below 36 percent). Lenders will still require other documentation, however, such as assets, other debts and employment. They’ll often require that you’ve been in the same job for two years.
Interest rate: You’ll pay a higher rate than you would for a traditional loan, but not as high as with a NINA.
Who it may be right for: People who would have difficulty obtaining a traditional mortgage because of their high debt-to-income ratio; people who have income that is difficult to verify.

3. Stated-income mortgages
How to qualify: With a stated-income mortgage, you do not need to prove your income with pay stubs or W2 forms. You must be able to document the nature of your employment (again, two years in the same job is usually required), but you can simply declare an income level that is reasonable for your line of work.
Interest rate: Because you supply other documentation and will be able to show a healthy debt-to-income ratio, this type of mortgage carries only a slightly higher rate than a traditional loan. About half a percent is typical, though it varies with other factors such as credit score, the size of the down payment and how stable your income is.
Who it may be right for: Borrowers who have a good income but find it hard to prove, such as self-employed people with a lot of tax write-offs, or people who earn much of their income in cash or tips.

What is shocking is the justifications they give for those who these loans “may be right for”. You are buying a house, you are borrowing money from a bank to do so. The expectation is that you will need to have money to put down on it and actually be able to demonstrate an ability to pay the bank back. The phrase “take my word for it” should never enter the conversation. It did though and that is the genesis of the current situation. When buying a $500,000 house involved less paperwork than buying a Ford Escort, red flags ought to have been going up.

In 2005 and 2006 the number of both mortgage brokers and real estate agents hit historic highs. A mortgage is a commodity, give me a price and a rate and I will choose a broker. There is very little a broker can do to distinguish themselves from each other. With so many brokers and a limited number of qualified mortgage applicants, brokers had to find new applicants. The only place for them to go was the pool of people who under the current rules not only did not qualify for a mortgage would not receive credit from a bookie were they to ask. The new motto was “If they don’t fit under the current set of rules, change the rules”. So they did. What they failed to realize was, the rules were there for a reason, they worked. We are now realizing that people who do not want to provide proof of what they do for a living, how they earn income, what that income actually is or where their down payment is coming from are not doing so out of some symbolic “privacy concern”, but because what they are saying is quite frankly, bull. Who has trouble “verifying income”? Crack dealers? Illegal immigrants working under the table and not paying taxes? Contractors who cheat on their taxes? If you want my money, prove you can pay it back or take a walk and let the next person in line step up, unless of course the line is small, the others are just like you and we really need to give you the money… thus the mortgage industry dilemma the past few years. Like I have said more than a few times before, the surprise here is not that this happened, it is that it did not happen sooner.

Where do we go from here? A slow decent to normalcy. That is all. Not a crash, not a recession, not a depression, just normal housing conditions with realistic lending guidelines. Bernanke will not allow a recession and to be quite honest, the overall economy is performing so well, it will resist it. We have record profits, record corporate cash levels, full employment and moderate sustainable growth. This may end up actually benefiting stocks as all the money that chased real estate the past 4-5 years will now look to stocks for superior returns since it will not be in real estate for a while. There are trillions out there looking for a home to grow in, what happens to the bottom 1% or 2% to the mortgage market will not really effect us except entice those trillions to look for a better home. The US stock market welcomes you.

Do not let the doomsayers out there scare you, let them panic and keep your cool like Billy Ray Valentine… see the movie.