Reforming Proposition 65: Governor’s “Update” Is a Promising Start

Yesterday, Governor Jerry Brown’s office announced his intention to propose “updates” to Proposition 65 (Health & Safety Code section 25249.5 et seq.) supposedly designed to make the law less susceptible to the widespread abuses by plaintiffs’ lawyers suffered by those who do business in California. While it is encouraging that the Governor and his staff recognize the significant problems and abuses engendered by this statute over the last 25 years, the suggestions they make fall short of what needs to be done, and in the case of warnings would only increase the burdens on businesses in California. Therefore, much work remains to be done if true reform is to be achieved.

“FRIVOLOUS LAWSUITS” -

Under the banner heading of frivolous lawsuits, the proposal suggests that when determining attorneys’ fee reimbursement amounts, which are required in virtually every Proposition 65 settlement, courts consider (1) the novelty of the alleged violation, the notice of violation, and any resolution, and (2) the amount of time that passes, and the amount of necessary litigation that occurs between the alleged violator’s receipt of the notice of violation and correction of the violation. Unless carefully crafted, this provision could actually end up rewarding plaintiffs for trotting out expanded theories of liability and for avoiding early settlements, and interfere with the considerable discretion courts already have in determining whether fees are reasonable and whether there has been a public benefit. Minimizing abusive lawsuits will require strong statutory language that requires very specific showings of public benefit and efficient efforts to achieve early and low-cost settlements before attorneys are awarded their fees for bringing Proposition 65 lawsuits.

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