Evaluating the Procedures for a Private Enforcement Action
Proposition 65 is enforced exclusively by civil lawsuits, which may be filed by a public authority or, under the law’s citizen suit provision, by any private person “in the public interest.” In general, any private person “in the “public interest” – whether an organization or individual – can initiate a Proposition 65 claim so long as the complaint is filed more than 60 days after serving a proper 60-Day Notice of Violation (NOV) on the alleged violator and appropriate authorities (e.g., the Attorney General), and no public entity with enforcement powers has started prosecuting the claim.
The underlying purposes of the NOV requirement are to: (1) afford the alleged violator to evaluate the claim and come into compliance; and (2) permit the relevant public authorities to evaluate the claim and decide whether to prosecute it themselves instead of the private person. Thus, public enforcers can determine whether they are interested in pursuing the case while also placing a restraint on a private person’s legal right to initiate the enforcement action.
Most Proposition 65 private enforcers have not directly suffered any harm as a result of the alleged violator’s conduct. Thus, ordinarily such persons would not have any standing to sue for damages. The NOV must comply with specified requirements in order to confer standing on the private person seeking to enforce Proposition 65. It must provide relevant information such as a description of the violation, the chemicals that are involved in the exposure, and the method of exposure.
Moreover, the NOV must be supplemented by a “certificate of merit.” This requirement was enacted in order to prevent private individuals from initiating frivolous lawsuits. The certificate of merit verifies that the private enforcer discussed the action with an individual who has experience in the matter as demonstrated by knowledge of studies and data pertaining to exposure to the chemical and alleged exposure in question. The private person seeking to enforce Proposition 65 must certify that the private action against the wrongdoer has merit.
As part of the certificate of merit requirement, the private enforcer must provide the Attorney General’s office with the underlying supporting evidence, typically in the form of test and other data. The alleged violator, however, does not automatically receive this underlying evidence, which puts the company at a significant disadvantage as it tries to evaluate the merit of the claim. Thus, one of the most significant hurdles for alleged violators in evaluating the NOV is the inability to obtain this supporting information.
A recent amendment to the Proposition 65 statute was intended to correct this problem. Section 25249.7(h)(1) provides that the underlying evidence is discoverable in litigation “only to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.” This half-hearted measure has done nothing to alleviate the problem of alleged violators being unable to ascertain the basis of the claim, either during the notice period or after the lawsuit is filed. Most of the plaintiff’s bar refuse to provide the underlying information unless the parties enter into a confidentiality agreement, or unless the alleged violator first provides sensitive sales data. Some members of the plaintiff’s bar refuse to provide basic underlying information at all. Such a position contravenes the spirit, if not the letter, of the NOV requirement and its underlying goal of allowing the alleged violator to evaluate the claim and come into compliance.
Absent the ability to obtain this information during the 60-day notice period or in discovery, the defendant can gain access to the factual data underlying the certificate of merit only after the company prevails in the case. The situation leaves the defendant spending considerable time and resources in litigation, before the court determine whether the claim was even credible in the first place.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].