California Seeks to ‘Stem Abuse’ of Prop 65 Litigation

« Attorney General proposes amendments to private enforcement regs.

California’s Office of the Attorney General has initiated a proposed rulemaking to amend regulations, governing private lawsuits brought against Proposition 65 violators.

The proposed changes aim to protect public health, while “helping to stem abuse of the law’s mechanism to allow for enforcement by private parties”, says the OAG.

Under California’s chemical hazard warning scheme, private citizens and organisations may bring forth lawsuits against alleged Prop 65 violators. Proponents say that such authority ensures that the regulations are enforced, but opponents say its leads to abuse, as the plaintiffs stand to gain financially from settlements.

The Attorney General’s office says it believes its proposed amendments “will restore public confidence that Proposition 65 is used for its proper health-protective purposes and not abused for private gain”.

The proposal’s statement of reason says that “many public health benefits accrue from private party Proposition 65 litigation”, but that the OAG has “significant ongoing concerns” that it aims to address through amendments. These include changes to:

  • cap the value of “additional settlement payments” that can be paid in lieu of civil penalties. This would ensure that a larger portion of penalty funds go to the Office of Environmental Health Hazard Assessment (Oehha), as statute requires that 75% of civil penalties go directly to the agency;
  • ensure that penalty payments, awarded to private enforcers, “are used for purposes that are clearly defined, relevant to the violations which prompted the settlement, and beneficial to Californians”; and
  • discourage “trivial” lawsuits by raising the standards for demonstrating that a settlement has conferred “significant” public benefit, which is a prerequisite for a plaintiff’s being awarded payment of attorney’s fees under the state’s civil procedures.

If adopted, the amendments would represent the first significant change to the Attorney General’s Prop 65 Regulations, since 2003.

California governor, Jerry Brown, has expressed his administration’s commitment to “ending frivolous ‘shake-down’ lawsuits” in recent years.

In 2014, settlements were reached in 663 Prop 65 cases, with a total cost to defendants of more than $29m, according to an OAG report. This figure was comprised of:

  • over $ 21 m in attorney fee payments;
  • nearly $ 5 m in civil penalties; and
  • approximately $ 3.5 m payments made in lieu of civil penalties.

Comments on the proposed amendments will be accepted until 9 November. »

OAG announcement :
Proposed amendments :
2014 settlement report :
Gov. Brown statement :

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