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Proposition 65: Lawyers Can Be More Toxic Than Chemicals

Proposition 65 requires a person or entity who exposes an individual in California to a chemical deemed by the state to cause cancer or reproductive toxicity to give "a clear and reasonable warning". Failure to give the required warning is punishable by a civil penalty, injunctive relief, and, as discussed below, the obligation to pay plaintiff's costs and attorney's fees. Proposition 65 is enforced through civil lawsuits. While the California Attorney General can prosecute actions for violation of Prop 65, so, too, can anyone else. That is where the bounty hunter attorneys come in. That is where the bounty hunter attorneys come in. Whoever brings an action for violation of Proposition 65 is entitled to 25% of any civil penalty, together with costs and attorney's fees. Some view Proposition 65 lawsuits as legalized extortion. Others view them as nuisances. But, most everyone who is sued for the alleged violation of Proposition 65 wishes they had not been sued.

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B. Possible Defenses to Proposition 65 Cases: Inadequate 60-Day Notice.

In order to obtain standing to pursue a Proposition 65 lawsuit, a putative plaintiff is required to give a 60-day notice requiring very exacting language as set forth in this statute, and the interpreting regulations. Because many courts tend to disfavor Proposition 65 lawsuits that are brought by bounty hunter attorneys, they carefully scrutinize the notices, and look for any possible defect. The requirements for giving notice required by Proposition 65 are contained in 22 CCR ?12903. In what has turned out to be a landmark case regarding the adequacy of such notice, the Court of Appeal in Yeroushalmi v. Miramar Sheraton, et al. (2001) 88 Cal.App.4th 738, found the notices to be flawed because they failed to adequate identify the individual exposed to the alleged toxins, and identify how the individuals were allegedly exposed. In a case handled by this office, the court found the notices to our client to be defective, as a matter of law, because they failed to comply.

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Safety In the Harbor

Proposition 65 provides a "safe harbor" level for all chemicals deemed by the State of California to cause cancer or reproductive toxicity. These levels are based upon the "reasonably anticipated rate of intake or exposure for average users of the consumer product." 27 Cal. Code Regs., ? 25821 (c)(2). A Proposition 65 lawsuit is typically based on tests which show that the product in question contains the listed chemical. However, the concentration of a chemical is not the proper test for Proposition 65; rather, Proposition 65 is based upon the level of exposure to a chemical, which can be lower or higher depending upon the type of product, and its expected use. It is possible, and is frequently the case, that a product with a higher concentration of a given chemical is immune from Proposition 65, whereas another product with a lower concentration of this same chemical is found to be in violation.

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Limited Exposure Means Limited Liability.

This can happen, for example, where a product with a high concentration is used infrequently, or for short periods of time, whereas a product with a low concentration is used frequently, and for long periods of time. Each product must be carefully analyzed on a case by case basis to determine If the exposure to the chemical in the product falls below the safe harbor levels that will make it exempt from Proposition 65. This can be determined based upon common sense--a picture frame is touched less frequently and for a shorter duration than a smart phone--and from exposure studies performed by toxicologists and other experts.

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Naturally Occurring Is a Natural Defense

With respect to certain products, and especially food, a chemical is not deemed to be violative of Proposition 65 if it is "naturally occurring". Thus, for example, if a product tests positive for lead, a defense can be offered that the lead is derived from naturally occurring sources. Say, for example, a product containing lead gets its lead from the milk used in making this product. In such a case, an argument can be made that the lead comes from cows that eat grass that is grown in soil that contains lead that has been in the soil for millions of years. If this can be established, the lead would be naturally occurring, and exempt from Proposition 65.

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Settling Quickly, Or For Too Much, Can Make the Defendant a Target For Future Proposition 65 Actions.

Companies that settle Proposition 65 cases quickly and inexpensively do so to avoid the cost of defending the lawsuit. Unfortunately, however, bounty hunter attorneys may target such defendants and bring subsequent actions against the same defendants. On the other hand, it sometimes makes sense to settle quickly if it is clear the case will ultimately be lost. In that event, a quick settlement can be much more economical as the costs and attorney's fees that are recoverable by the successful plaintiff in a Proposition 65 case will be much greater if the case is aggressively defended. Thus, whether to settle, and if so when, is an important consideration in Proposition 65 cases given its fee shifting provisions.

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Avoiding the Proposition 65 Lawsuit

The best way to avoid a Proposition 65 lawsuit is by providing the warnings called for in that statutory scheme. If warning labels are placed on the packaging of the product, or in close and visible proximity to the point of sale, before the 60-day notice is sent by the bounty hunter attorneys, that can be a defense to such claims. If the bounty hunter attorneys choose to purse such a claim, in spite of using Proposition 65 warnings, the action can be defended on that basis.

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Turning the Tables on Bounty Hunter Attorneys by Seeking Sanctions Against Them

When a defendant prevails in a lawsuit, the court typically awards costs of suit. Such costs include such things as filing, motion, and jury fees; cost of transcribing depositions; and cost for serving process. However, attorneys's fees are not typically awarded as costs to the prevailing party, unless such fees are authorized by written contract, statute, or other law. California Code of Civil Procedure ? 128.7 enables the trial court to award sanctions to the prevailing party, including some or all of its reasonable attorney's fees, if it determines that the action was brought without evidentiary support, or without the likelihood of obtaining such evidentiary support through further investigation or discovery. If a bounty hunter plaintiff and its counsel were required to reimburse a defendant for the cost of its attorneys, that might dissuade other bounty hunter attorneys from filing another Proposition 65 lawsuit.

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Disclaimer

THIS DOCUMENT IS NOT INTENDED AS LEGAL ADVICE THE CONTENTS OF THIS DOCUMENT IS INTENDED TO BE FOR INFORMATIONAL PURPOSES ONLY, AND TO GIVE A VERY BRIEF SYNOPSIS OF VARIOUS PRINCIPALS RELATING TO CERTAIN ASPECTS OF THE LAW. IT IS INTENDED ONLY FOR EDUCATIONAL PURPOSES AND IS NOT MEANT TO GIVE LEGAL ADVICE OR COMMENT AS TO ANY PARTICULAR SITUATION OR SET OF FACTS. FOR SPECIFIC LEGAL ADVICE CONCERNING A PARTICULAR SITUATION, THE AUTHOR STRONGLY SUGGESTS THAT YOU CONSULT WITH AN ATTORNEY.