Robert L. Falk

Partner

San Francisco, (415) 268-6294

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Education

Binghamton University (B.A., 1979)
;
New York University (M.P.A., 1981)
;
University of California, Berkeley, School of Law (J.D., 1989)

Practices

Environmental Litigation

Environmental Regulation

Consumer Products

Bar Admissions

California

Robert Falk is Chair of Morrison & Foerster's Land Use and Environmental Law Practice. He has an environmental and consumer products law practice that includes both compliance and litigation.

Mr. Falk has served as special counsel to a variety of businesses and trade associations, successfully counseling and defending them in litigation with respect to various federal and state environmental and pollution control statutes, and California's unique Proposition 65 ("Prop 65"), the Unfair Competition Act, and the Consumer Legal Remedies Act. He is a leading expert in the Clean Water Act and California Water Code, and serves as counsel to large corporations, real estate developers, healthcare organizations, and to a variety of cities, counties, and special districts in California. Mr. Falk's consumer products-related practice extends beyond California's Prop 65 to matters involving the U.S. Consumer Product Safety Commission, the U.S. Food and Drug Administration, the U.S. Federal Trade Commission, and their state equivalents. He also focuses on climate change, "green chemistry," "green marketing," and sustainability matters.

Mr. Falk frequently publishes articles on environmental due diligence and contamination issues. He is co-author of the chapter “Environmental Due Diligence in Real Property Transactions” in the West Publishing treatise Environmental Problems in Corporate Transactions.

Mr. Falk has chaired the American Bar Association's Standing Committee on Environmental Law and currently serves on the Advisory Board of Prop 65 Clearinghouse and the California Center for Law, Energy, and the Environment. He also actively promotes policies concerning environmental and consumer products law reforms, alternative dispute resolution, and the use of improved science in judicial and regulatory decision-making.

Natural Resources Defense Council v. U.S. Dept. of Commerce

(CA USDC, Northern District of California). Represented the National Resources Defense Council (on a pro bono basis) in a federal environmental lawsuit against the U.S. Navy and National Marine Fisheries Service concerning failure to mitigate the effects of a low frequency sonar tracking system. Prevailed on preliminary injunction motion and then settled the remainder of the case based on an agreement by the government agencies to provide additional mitigation measures, and reimburse our pro bono client's fees. (2008)

Juvenile Products Manufacturers Association / Juvenile Furniture Joint Defense Group

Represented the Juvenile Products Manufacturers Association and four of its members in an enforcement action aimed at reducing formaldehyde emissions from their composite wood products. Avoiding litigation costs, we negotiated a de minimus settlement with the California Attorney General under which our clients agreed to expedite implementation of the California Air Resources Board’s new formaldehyde ATCM emissions requirements. (2009)

People v. Mattel, Inc.

(CA Superior Court, Alameda County). Defended Mattel, Inc., and Fisher Price, Inc., in a Prop 65 and Unfair Competition Act lawsuit brought by the California Attorney General’s and Los Angeles City Attorney’s offices concerning lead in toys imported from China. The matter was settled through negotiations that avoided discovery and litigation costs and established compliance standards and obligations consistent with recently enacted federal requirements under the U.S. Consumer Products Safety Commission’s authorities. We also assisted Mattel in the all the environmental law aspects of the toy recall, including worldwide waste characterization, testing, disposal and transportation issues, and responding to government officials. (2008)

W.S. Associates v. Cryo-Maid, Inc.

(CA USDC, Northern District of California; Ninth Circuit Court of Appeals). Resolved a complex environmental matter for Nestlé USA, including CERCLA litigation and ADR, that centered around a warehouse site with extensive TCE contamination of the soil and groundwater. We generated a multimillion-dollar fund from the other potentially responsible parties; this led to the negotiation of a guaranteed remediation contract backed by environmental insurance to effectuate the cleanup of the site. We also obtained a favorable decision in another portion of the case from the Ninth Circuit Court of Appeals involving a contribution claim initiated by Nestlé against a bankrupt former master lessor of the property. (2006)

United States v. Santa Clara County, et al.

(CA USDC, Northern District of California). Represented the Santa Clara Valley Water District in a CERCLA action concerning mercury contamination in the Guadalupe River Watershed and South San Francisco Bay. Through extensive engagement with the U.S. Fish & Wildlife Service, we were able achieve to an expeditious resolution of claims by negotiating an 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. (2005)

In the Matter of Mauna Loa Macadamia Nut Co.

(U.S. Environmental Protection Agency). Defended The Mauna Loa Nut Company (a subsidiary of The Hershey Company) in administrative enforcement litigation brought by the U.S. Environmental Protection Agency concerning violations of the federal Safe Drinking Water Act. After six months of litigation and briefing an evidentiary motion, the EPA accepted the company’s settlement offer rather than submitting the matter for a ruling by an administrative law judge. (2008)

DiPirro v. J.C. Penney Company Inc.

(CA Superior Court, San Francisco County). Replaced J.C. Penney’s trial counsel in a Prop 65 lawsuit alleging that glassware with exterior decorations it sold contained and resulted in exposures to lead. Resolved the claim prior to appellate briefing, cutting down the trial judge’s penalty award and plaintiff’s attorney fee claim by approximately 50%. (2006)

Dipirro v. Gateway

(CA Superior Court, Alameda County). Resolved, by a five-figure consent judgment, a Prop 65 lawsuit filed against Dell, Gateway, and another company, alleging failure to warn of lead exposure from various circuit boards. The judgment contained injunctive relief terms closely corresponding to EU RoHS requirements. (2008)

EOA, Inc. / Santa Clara Valley Urban Runoff

Represents 15 Silicon Valley municipalities on National Pollutant Discharge Elimination System (NPDES) stormwater permitting issues resulting from the federal Clean Water Act and California Water Code. Also represents these municipalities in total maximum daily load (TMDL) and other water quality-related proceedings and on unfunded mandate claims. Representation of the City of Sunnyvale, California also extends to permitting and enforcement issues related to its publicly owned wastewater treatment plant (POTW). (2009)

High Fructose Corn Syrup Defense Group / Proposition 65 - Mercury

Represented 12 major U.S. and international food and beverage companies in response to media reports and threatened litigation concerning traces of mercury in products containing high fructose corn syrup. We established through scientific analysis and a factual investigation that high fructose corn syrup did not contribute mercury to the products, that the trace levels of mercury were naturally occurring and of a non-toxic form. Based on our submission, the California Attorney General's office issued a letter opining that the threatened claims "have no merit." (2009)

Felicijan v. Mobile Modular Management Corporation

(CA Superior Court, Orange County). Obtained a favorable summary judgment ruling in a mold contamination/personal injury and product defect case filed against a lessor of modular buildings and portable classrooms. Resolved parallel cases in ADR at minimal cost. (2005)