Proposition 65: Lawyers Can Be More Toxic Than Chemicals
Proposition 65, also known as the Safe Water & Toxic Enforcement Act ("Prop 65") requires a business that exposes an individual in California to a chemical known to 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 of $25,000 per day for each violation. The attorney who brings an action for violation of Prop 65 is entitled to 25% of any civil penalty, together with costs and attorney's fees.
Some attorneys bring actions on behalf of entities that are formed for the purpose of prosecuting Prop 65 lawsuits. After filing these lawsuits, the attorneys frequently make a quick offer to settle, in many cases for less than the cost of defense.
Some businesses view Prop 65 lawsuits as legalized extortion. Others view them as nuisances. But all businesses that are sued for the alleged violation of Prop 65 wish they had not been sued, and want to avoid being sued again.
Avoid Prop 65 Lawsuits: Post the Required Notice
The best way to avoid a Prop 65 lawsuit is by posting the warning signs called for in that statutory scheme. If warning signs are placed before the 60-day notice is sent by the bounty hunter attorneys, this is a defense to such claims.
If the bounty hunter attorneys choose to purse such a claim, in spite of having proper warning signs, an action can be defended on that basis.
Defending the Prop 65 Lawsuit By Challenging Plaintiff's Notice of Alleged Violation
In order to obtain standing to pursue a Prop 65 lawsuit, the plaintiff is required to give a 60-day notice that includes the very precise language set forth in this statute, and the interpreting regulations.
Because many courts tend to disfavor Prop 65 lawsuits brought by bounty hunter attorneys, they carefully scrutinize the notices, and look for any possible defect.
The requirements for giving notice required by Prop. 65 are contained in 22 CCR ?12903. If the notice fails to adequately identify the individuals exposed to the alleged toxins, and how the individuals were allegedly exposed, the action can be dismissed on that basis.
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 that can include court fees, reporter's fees, deposition transcripts, photocopies, and costs for serving process.
In California, an attorney or plaintiff who brings an action he or she knows to be without merit, or based on facts that are devoid of evidentiary support, can also be required to pay monetary sanctions.
If a bounty hunter attorney were to bring a Prop 65 lawsuit against a business that had posted the required Prop 65 notice, or without giving the business a notice of Prop 65 violation that identified the individuals exposed to the alleged toxins, and how the individuals were allegedly exposed,a court could find such actions to be frivolous, and sanction the plaintiff and his attorney.
Defense of Americans With Disbailities Act Claims
The Americans With Disabilities Act ("ADA") requires places of public accommodation, and most businesses that serve the public, to make all facilities accessible to individuals with disabilities. Under the ADA, a court may assess civil penalties of up to $50,000 for a first violation, and up to $100,000 for subsequent violations.
Under the ADA, all public places constructed after 1990 must be accessible to physically disabled persons. For buildings constructed prior to 1990, or that were remodeled or renovated after that time, barriers to access must be removed whenever "readily achievable."
Avoiding ADA Claims
The best way to avoid an ADA lawsuit is to correct conditions at the property that violate the ADA. Corrections might include, for example, addition inclusion of handicapped parking spaces, disabled parking warning signs, all accessible paths of travel.
An ADA expert can be retained by the attorney as a consultant to provide an ADA compliance survey which identifies possible ADA violations.
The best way of avoiding an ADA lawsuit is to remove any accessibility barriers. This should be done in conjunction with counsel, who can obtain a survey, and advise the business client on which barriers should be removed.
Defending the ADA Lawsuit
If a business is sued in an ADA lawsuit, it can either settle or defend. This is not an easy choice, and requires an analysis of many factors including the cost to defend, potential exposure, the cost of making the structure ADA compliant, and being viewed as a soft touch to other prospective plaintiffs.
Settling a non-meritorious ADA lawsuit to avoid the cost of defending it, can possibly identify a business as an easy mark. If a prospective plaintiff, or his counsel, knows that a business will aggressively defend an ADA lawsuit, this can be a disincentive to prosecuting such an action. With so many prospective targets to choose from, plaintiff's counsel might choose some other business viewed as a softer touch.
These are but two types of cases that can possibly be brought against businesses in California. None of these lawsuits help a business make money; they only help lawyers make money.
But like any ethical doctor who wants his or her patients to stay healthy, and wants to treat them only if they get sick in spite of following his advise, an ethical attorney wants his or her clients to avoid getting sued, and to represent them only if they get sued in spite of following his advise.
A business should do what it can to avoid a lawsuit, but prepare itself to win if it does get sued. If a business is sued, an attorney can guide his client through the litigation process, and help it decide whether to settle or go to trial.
If the decision is made to go to trial, the business should retain an attorney who has the experience, guile, intelligence, and tenacity to make sure that justice is ultimately served.
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