Justice Sills Returns Fire on Prop. 65 "Bounty Hunters"

I am glad that someone around here -- specifically Professor Shaun Martin of California Appellate Report -- has the time to keep up with the newest decisions, because otherwise I might have missed out on Justice Sills' virtuoso performance in Consumer Defense Group v. Rental Housing Industry Members.[PDF]  If anything, Professor Martin is understating the case when he observes: "Rarely have I read something as unceasingly bitter and visceral as this."

The object of visceral bitterness is the law firm of Graham & Martin and the Consumer Defense Group, an organization that Justice Sills concludes is little more than a front for . . . the law firm of Graham & Martin, a self-styled collection of "bounty hunters" aiming to collect large awards of attorneys' fees for obtaining largely meaningless settlements in dubious toxic-substances claims under California's Proposition 65.  The nature of the claims is reflected in the pre-litigation notice served by the firm:

The first notice was literally predicated on only two things:  One, each apartment had . . . parking facilities!  Thus the apartment allegedly 'exposed' tenants and visitors to carcinogens in auto exhaust without giving them a Proposition 65 warning.

Two, each apartment did not prohibit tobacco smoking everywhere on the premises.  Hence somewhere on the property the apartment allegedly 'exposed' its tenants and visitors to second-hand tobacco smoke, again without posting a Proposition 65 warning.

[Emphasis by Justice Sills.]

The meat of the opinion concludes that the settlements under consideration -- nearly all of the proceeds of which went to the attorneys or those closely tied to them -- must be set aside because of the attorneys' failure to give meaningful notice to the offices of the state Attorney General prior to filing suit.  The concluding portion, however, focuses on the reasons why the $540,000+ attorney fee award that arose from the settlements was objectively beyond the pale.  In that segment, Justice Sills provides this valuable, step-by-step guide for attorneys who find themselves with time on their hands and mischief on their minds:

Let’s illustrate . . . just how simple it is for a hypothetical unemployed lawyer, eager to cash in on Proposition 65, to extract money from businesses using the initiative. . . :

First, go on the internet and find some common objects (e.g., furniture, paper, carpeting) which may 'contain' a substance on the regulatory carcinogen list.  As we have just noted, a common place item, like a chair, doesn’t have to contain any significant amount either, even a few molecules will do.  Next, call up a local chemistry professor who will tell you that, at least in sufficient quantities, substances in those common objects will cause cancer, and are in fact on the list. . . .  [I]t will be particularly helpful if your chemistry professor opines that as any substance 'degrades' over time (and it can be a very long time indeed given that Proposition 65 puts the burden on any issue of amounts on the defendant), it will emit a few molecules of its constituents into the air -- that will allow you to claim 'exposure' by inhaling or touching. 

Then, extrapolate your results to some 'target' business.  As we have seen in this case, businesses which are centered around structures make easy targets because at the very least they are going to have paint and furniture inside, and a place to park outside....

Third, develop (as here) a plenary omnibus 'macro' notice form which guarantees that yes, somewhere on the premises, there will be a molecule of a substance listed as carcinogenic.  Then send your notice in the stentorian Wizard-of-Oz- berates-Dorothy legal style of an indictment.  ('You (hereinafter "Violator,") are hereby informed that you have exposed the following [long list of categories of sorts of people who might happen onto your property] to Designated Chemicals'.)  This notice will be intended to frighten all but the most hardy of targets (certainly any small, ma and pa business) into a quick settlement when they get it.

        * * *
Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.

[Italics by Justice Sills; boldface by Decs&Excs.] 

An opinion well worth reading for pure entertainment value, but also as an illustration of how well-intentioned (if overreaching) legislation can be put to less than laudable use in the wrong hands.

Comments

[jeff markus]

Any assistance on this subject would be appreciated: Prop. 65 and the Fashion Jewelry Industry. We are not in Childrens' jewelry but are confused as to what the propositions' directives are for the fashion jewelry industry to be compliant.
Can you clarify the proper warning for Prop 65 in relationship to Fashion Jewelry?