Jenner & Block

Governor Approves Bill That Could Curb Some Proposition 65 Claims

Siros_Steven_COLORBy Steven M. Siros

 

California Governor Jerry Brown recently signed into law a measure that may curb what many believe to be meritless Proposition 65 claims against certain businesses in California. The current modus operandi for the Proposition 65 plaintiffs' bar in California is to hire people to visit restaurants, bars, and other businesses in the hope that the requisite Proposition 65 warnings have not been posted. A 60-day notice letter is then sent out and in most cases, the targeted business quickly settles the claim with plaintiffs' counsel pocketing a significant percentage of the settlement as "attorneys' fees".

Under the new law, businesses that are targeted by a Proposition 65 plaintiff for allegedly failing to post the requisite warning regarding exposure to alcoholic beverages, tobacco smoke, engine exhaust, and potentially harmful chemicals formed during the cooking process would have 14 days to post the requisite notice and pay a $500 fine. Assuming that the notice is posted within this 14-day period and the fine paid, no further action could be taken by a private plaintiff (it should be noted that this new law would not prohibit the Attorney General from bringing a separate action for violation of the Proposition 65 statute).

Since it will no longer be profitable for the Proposition 65 plaintiffs' bar to bring these types of claims, the expectation is that California restaurants and other similar businesses will no longer be targeted simply for having served a hamburger or operating a parking lot without having posted a warning.  Of course, that probably just means that the plaintiffs' bar will focus more attention on other consumer products and businesses would be well served to verify that the products that they sell and distribute in California are compliant with Proposition 65.

TAGS: Toxic Tort, TSCA