The California Attorney General has released a revised proposal to amend that office’s Proposition 65 settlement guidelines. Public comments must be submitted by February 26, 2016.
The Attorney General is authorized by statute to monitor and supervise Proposition 65 private enforcement. With that authority, the AG has promulgated regulations governing, for example, the Certificate of Merit requirement and guidelines governing Proposition 65 settlements. As GLO reported in a prior post, on September 25, 2015, the Attorney General published a proposal to revise the guidelines governing Proposition 65 settlements with the goal of increasing transparency and accountability in the settlement of private enforcement actions, and curbing abusive private enforcement.
The revised proposal makes few changes to the September 2015 proposal:
- An added definition of “Private Enforcer”;
- Clarification regarding the effect of reformulation of a product, as well as reduction in air emissions and other changes in a defendant’s practices, as conferring a “public benefit” to support an award of attorneys’ fees to the private enforcer; and
- A revised definition of “economic interest” relating to so-called “Additional Settlement Payments” (also known as payments in lieu of civil penalties), intended to elicit information about the relationship between a private enforcer and a separate entity receiving such payments under a settlement.
Given the active (and aggressive) Proposition 65 private enforcement climate, and the perception among members of the regulated community that much of that enforcement activity is motivated by financial gain more than by the public interest, it remains to be seen whether the AG’s proposal will achieve the goals that office is targeting.