The Lion Has Roared: Proposition 65 Settlements and the Attorney General


California’s Proposition 65 permits “private enforcers” to send Notices of Violation and bring lawsuits on behalf of the “public interest” where they purport to find trace amounts of banned chemicals at elevated levels in consumer goods. Given the large statutory damages provided by Proposition 65, the ease of making such a claim and the difficulty of defending against one, these private enforcers have been able to exact large attorneys’ fees as part of the settlement process. The rub, however, is that the Legislature now requires that the Court actually approve any such settlement and review the attorneys’ fees award for “reasonableness.” But since the settling defendants are generally precluded by the very terms of their settlement from making any opposition, there really is no one to object to the reasonableness of the attorneys’ fees being requested—until now! The Attorney General has the authority to either to take over the claim early in the case or, as part of the settlement-approval process, appear in the matter and be heard. And just yesterday, California Attorney General Kamala Harris actually submitted an Opposition to a Motion filed by the Chanler Law Group for approval of a Proposition 65 Consent Judgment based upon its request for exorbitant attorneys’ fees and lack of documentation showing their reasonableness in light of the work actually done in the matter.

Just over one year ago, the parties in Held v. Aldo, et al., entered into a Consent Judgment governing the amount of phthalates allowable in fashion accessories. The Consent Judgment included statutory penalties and attorneys’ fees to cover the expense of reaching a settlement with the 14 initial settling defendants. In addition, the Consent Judgment contained a provision which allowed for other defendants to opt into the Consent Judgment. With each new defendant opting in, statutory fees were assessed and attorneys’ fees were claimed in the amount awarded when the Consent Judgment was initially entered. In total, plaintiff’s counsel was awarded $2,247,076 for the initial settling defendants and first round of opt-ins.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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