A controversial amendment to Proposition 65, AB 227, has advanced out of the California State Assembly Environmental Safety and Toxic Materials Committee by a 7-0 vote. That amendment would allow companies alleged to have violated Proposition 65’s warning requirements to avoid liability by correcting the violation within 14 days of receiving a 60-day notice from a private enforcer, and certifying that the corrective actions have been taken an providing a copy of the warnings that have been implemented.
Proposition 65 has long been criticized for its use by private enforcers to exact high attorney fee/cost recovery as part of settlements for marginal cases. Because the cost of litigation in a Proposition 65 case can run into the high six figures, if not more, many companies simply agree to settle cases for far less, even when their defenses are meritorious, because of the expense. In most of those settlements, the bulk of the payments go to attorneys’ fees and costs for the plaintiff. AB 227 is intended to remedy that situation.
The bill has been referred to the Assembly Judiciary Committee, and its chances of ultimately being enacted remains uncertain. As expected, there is substantial opposition to the amendment, and if it continues to proceed through committee, the debate over the proposed legislation will escalate.
--Josh Bloom
For more information, contact Josh Bloom, jab@bcltlaw.com, (415) 228-5400
