Ongoing Matters

CERCLA Natural Resource Damages Action: Mercury - United States v. Santa Clara County, et al. January 1992

Representation of the Santa Clara Valley Water District in a CERCLA Natural Resource Damages action concerning mercury contamination in the Guadalupe River Watershed and South San Francisco Bay. Through extensive engagement with the Trustee Agencies (led by the U.S. Fish & Wildlife Service) we were able to avoid litigation entirely by participating in a collaborative damages assessment and settlement process, resulting in minimal damage assessment costs and expeditious resolution of Trustees' claims through a negotiated agreement allowing our client and other PRPs to implement local restoration and enhancement projects in lieu of paying either compensatory damages or federal or state oversight costs or legal fees.

2004

Decorated Glassware September 2004

In 2003-04, Michael DiPirro and Whitney Leeman filed Proposition 65 suits against various manufacturers, distributors, and retailers of glassware with exterior decorations alleged to contain and result in exposures to lead. We have represented ARC International, Anchor Hocking, Mikasa, Dansk, The Pfaltzgraff Company, and Salton, Inc. with respect to these cases.

Result: While others have spent millions of dollars in legal and expert fees attempting to litigate these claims (thus far without receiving any results), we achieved quick, relatively low-cost settlements for our clients, who have since been able to go on about their business.

Garden Hoses August 2004

In response to claims brought by the Center for Environmental Health, alleging application of Proposition 65's discharge prohibition to garden hoses, we represented three leading American hose manufacturers: Tekni-Plex, Inc., Teknor Apex, and Flexon.

Result: We convinced the plaintiff to avoid costly litigation and instead negotiated a low-cost settlement of these claims, allowing our clients to continue selling their products with warnings and to reformulate them over time.

Vinegar June 2004

Environmental Law Foundation has sued manufacturers, importers, and retailers of vinegar. The suit alleges that the companies are responsible for exposing consumers to lead without providing clear and reasonable warnings. We represented a coalition of manufacturers and importers and demonstrated that lead in vinegar is naturally occurring within the meaning of Proposition 65, forming the basis of a low cost settlement.

Over-the-Counter Drugs April 2004

Lexington Law Group, on behalf of Paul Dowhal, filed a Proposition 65 suit against SmithKline, Johnson & Johnson, and 15 other manufacturers, marketers, and retailers of Nicoderm CQ, Nicorette, and Nicotrol, smoking cessation products used to help people quit smoking. Plaintiff alleged that the pregnancy warning language on the products does not satisfy Proposition 65's requirements.

Result: We won summary judgment on the ground of federal conflict preemption. The California Attorney General intervened on behalf of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. The Supreme Court's decision was the first favoring a defendant's position in a Proposition 65 action, the first holding that Proposition 65 could be and was preempted by federal law, and the first ruling that the State could not defeat preemption by requiring off-label advertising.

CERCLA Contribution Litigation and Financing of Remediation - W.S. Associates v. Cryo-Maid 2004

Represented Nestlé USA on a San Leandro, California site with extensive TCE contamination to soil and groundwater. Although Nestlé was the only large company among the PRPs, the Firm was able to generate a fund from the others sufficient to 1) address the investigation and remediation requirements imposed on the site, 2) contract for a guaranteed remediation backed by an independent insurance policy, and 3) provide compensation to the property owner for costs and economic losses incurred. A portion of the case involving a contribution claim initiated by Nestlé against a bankrupt former master lessor of the property resulted in a favorable decision by the U.S. Court of Appeals for the Ninth Circuit (Nestlé USA Beverage Division, Inc. v. D.H. Overmyer Company, Inc., 1999 U.S. App. LEXIS 6008 (9th Cir. March 31, 1999).

2003

Chocolate October 2003

We represented Hershey Foods Corporation and Mars Incorporated and led an 18-company joint defense group with respect to a Proposition 65 and consumer law action brought by the American Environmental Safety Institute and Lynne Todd Edgerton involving lead and cadmium in chocolate products. We developed an analysis demonstrating that the chemicals in question are naturally occurring, reduced to the lowest level feasible, and pose no significant risk/no observable effect within the meaning of Proposition 65.

Result: The California Attorney General issued a letter stating that the plaintiffs' claims "lack merit." The California Department of Health Services denied the plaintiffs' petition to have chocolate declared an adulterated food and affirmatively determined that chocolate is safe to eat. We developed expert testimony in support of our clients' naturally occurring and no significant risk/no observable effect defenses and vigorously litigated this case to trial, on the eve of which the plaintiffs saw the handwriting on the wall and accepted our clients' CCP section 998 offer to dismiss the claims with prejudice in exchange for $20,000 (only $953 per defendant).

Household Appliances and Consumer Electronics September 2003

Mateel Environmental Justice Foundation served Proposition 65 notices on hundreds of companies who manufacture, distribute, or sell various consumer electronics and appliances having PVC-coated wires, cables, and/or power cords. The notices claimed that the companies failed to provide warnings to consumers who handled the PVC and were thereby exposed to lead. We represented a group of 22 leading manufacturers, distributors, and retailers (including, among others, Sharp, Matsushita/Panasonic, Toshiba, Whirlpool, DeLonghi, and Sunbeam).

Result: We obtained a freeze on discovery and negotiated a joint technical evaluation and cost-effective and flexible settlement that was ultimately joined in by over 150 companies. The settlement offered an exclusion from warning obligations for many products and an extensive menu of warning options for others. The settling companies were also allowed to minimize the cost of resolving Mateel's claims by means of an "opt-in" program, which resulted in an effective cost per participating company in the low five figures. In addition, joint defense members were able to recoup their costs associated with testing products and negotiating the settlement agreement.

2002

Nutritional Drinks/Snacks October 2002

Nutritional Drinks/Snacks. Lynne Todd Edgerton sued various makers of nutritional drinks and snacks, claiming failure to warn of exposures to lead. We represented the Kellogg Company's Kashi Brand.

Result: We avoided most of the burden and expense of discovery and ultimately negotiated a settlement of the case under which our client agreed to ensure that it was employing "best practices" to reduce lead to the lowest level currently feasible and paid a nominal amount.

2000

Power Tools December 2000

This Proposition 65 suit was brought by Klamath/Mateel against makers of power tools alleging exposure to dust created by use of the tools. Most of the noticed companies were represented by other counsel and settled the case at a cost of thousands of dollars per company.

Result: Our client, Bosch/Skil, received a sixty-day notice, but was the only noticed company not named in Mateel's complaint. We have since negotiated a low-cost settlement with the Attorney General without involving our client in any active litigation.

Batteries October 2000

In this Proposition 65 suit brought by Mateel/Klamath against manufacturers of automotive batteries alleging failure to warn about exposure to lead, we represented a joint defense group comprising Exide Corporation, Johnson Controls, Delphi, and other major companies and coordinated our efforts with the Automobile Manufacturers Association.

Result: We obtained a freeze on discovery and negotiated an industrywide settlement that gave battery manufacturers a variety of options for warning in order to address the needs of their customers (e.g., warnings in user manuals, replacement guides, shelf stickers, retail signs). Defense and settlement costs were then split among a large group of companies so that each participant's share was de minimis.

1998

Vinyl Miniblinds November 1998

The Attorney General sued retailers and distributors of PVC miniblinds for violations of Proposition 65 due to alleged exposures to lead without adequate warnings. Parallel national and state class actions were filed by six plaintiffs' firms. We represented Levelor and a joint defense group composed of most of the defendants.

Result: The case was vigorously litigated, and the AG's claims were settled on reasonable terms. We then prevailed on a motion to dismiss the class actions in their entirety based on principles of res judicata.

1995

Brass Faucets Litigation

This suit brought by the Attorney General, with parallel Consumer Legal Remedy Act class action claims filed by the Natural Resources Defense Council and the Environmental Law Foundation, alleged that manufacturers of faucets violated Proposition 65 by: 1) failure to warn and 2) discharge of lead to a source of drinking water. We defended Masco Corporation (the world's market leader).

Result: We obtained a trial and appellate court decision throwing out the plaintiffs' "discharge to a source of drinking water" claims, and settled the remaining warning claims in both cases for a total of $275,000. The California Supreme Court subsequently overturned the "discharge" decision with respect to companies that had not settled. Other manufacturers were forced to pay as much as seven-figure settlements.

1992

Proposition 65 Crystal Litigation

This suit brought by the Attorney General and the Environmental Defense Fund ("EDF") against manufacturers and retailers of leaded crystal decanters alleged that the use of these decanters exposed persons to lead. Result: We represented Steuben Co. and persuaded the Attorney General and the EDF not to proceed against Steuben in this action. The other manufacturers were sued. We then represented the entire crystal industry in a suit brought by Milberg Weiss for failure to warn about lead exposures from stemware and other glassware.

Result: We settled the industrywide suit for no penalties, a $362,500-payment of tax-deductible contributions to research programs, and plaintiffs' attorneys' fees. When the costs were spread among all of the participating companies, they averaged in the four figures per company. The one company that was not our client and did not join in the settlement litigated the case and ultimately settled on the same terms as the remainder of the industry at an out-of-pocket cost of close to $3 million.