Proposition 65 Private Enforcement – Where The Numbers Are
The California Attorney General’s Office recently released its annual summary of Proposition 65 settlements for the prior year. According to the summary, 2017 saw 688 settlements, with payments totaling almost $26 million. The most active private enforcers were the group represented by the Chanler Group, with 147 settlements yielding almost $4 million – 84% of which went to attorneys’ fees. The plaintiffs represented by the Brodsky & Smith firm, located in Pennsylvania, were the second most active, with 115 settlements yielding almost $2 million – 91% of which went to attorneys’ fees. The average percent of payments in 2017 going to attorneys’ fees was 76%, up from 72% in 2016 and 68% in 2015. Environmental Research Center topped the “additional settlement payments” category at over $1 million. (Additional settlement payments are payments made directly to the plaintiff or third parties; unlike a Proposition 65 civil penalty payment, of which 75% is allocated to the State of California, the recipients of additional settlement payments keep 100% of the funds paid.)
Meanwhile, 2018 looks to be another active year in private Proposition 65 enforcement, with 811 Notices of Violation issued so far. The listed chemicals lead and plasticizers like di(2-ethyhexyl) phthalate continue to be primary targets, although acrylamide in foods remains an active area of enforcement as well. Private enforcer Michael DiPirro, represented by Bush & Henry, has issued Notices of Violation to Kimberly-Clark Corporation, Target and others alleging exposures to PCBs in toilet tissue and feminine hygiene products. Mr. DiPirro also has issued Notices of Violations alleging exposures to nitrous oxide, listed as a reproductive toxicant, in whipped cream chargers. Revealing a diversity of enforcement interests, Mr. DiPirro also has been aggressively pursuing cannabis dispensaries for alleged failures to provide warnings for marijuana smoke, listed as a carcinogen.
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