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.

Acrylamide in Foods August 2004
A suit by Council for Education and Research on Toxics was brought against two of the country's largest restaurant chains based on an alleged failure to warn of the presence of acrylamide in their french fries, a chemical naturally produced during the cooking of foods high in carbohydrates. Additional sixty-day notices were filed against various restaurants, cereal, and snack food producers by Environmental World Watch. We represent Burger King Corporation, Wendy's International, Inc., various food producers, and related industry groups and have been actively involved in both the litigation and the regulatory activity related to this unique issue of a chemical formed as a result of cooking.

Result: Our demurrer based on the sufficiency of the underlying notice of violation was sustained, and we also obtained a stay from the court pending new regulatory actions and rulemaking by the lead agency responsible for Proposition 65.

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.

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.

Artists' Supplies and Materials July 2002
We represented a large coalition of manufacturers of artists' paints and other art materials, including Binney & Smith, Utrecht Manufacturing Corp. of California, Colart Americas, Royal Talens, Canson-Talens, Koh-I-Noor, and Daler-Rowney, with regard to allegations made by two Proposition 65 plaintiffs, Public Media Center and Michael DiPirro. Both plaintiffs alleged that exposure to lead and cadmium and other Proposition 65 chemicals from the use of artist paints required disclosure and warnings under Proposition 65. Results: We were able to structure a favorable low-cost settlement that provides broad protection against future claims regarding all Proposition 65 substances, the cost of which was divided among the companies involved. We further reduced the cost of settlement borne by each company by instituting an opt-in program which allowed other art materials manufacturers to join the settlement by paying a share of the costs. We then worked with the companies, including Binney & Smith, to devise a labeling scheme that provided the required warnings in a manner that did not interfere with other labeling requirements under federal law, was minimally burdensome, and maximized protection against future Proposition 65 claims. The result was a cost-effective settlement achieved in a timely manner, which allows the companies to comply with Proposition 65 warning obligations with minimal impact to business.

2001

Bottled Water July 2001
This suit brought by the Environmental Law Foundation and Heather K. Smith against several bottled water manufacturers alleged violations of Business and Professions Code § 17200 and Proposition 65, arising from the alleged presence of contaminants and listed chemicals in the bottled water. We represented Albertson's, Inc. (formerly Lucky Stores, Inc.) and worked closely with co-defense counsel, effectively reducing litigation costs.

Result: We negotiated a settlement for less than similarly situated defendants and were able to obtain monetary contributions from the entity that now owns the bottled water plant, significantly reducing the litigation and settlement costs incurred by our client.

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.

1999

Marine Motors May 1999
Sixty-day notices were issued by Klamath/Mateel and the Earth Island Institute alleging that certain boat and personal watercraft motors discharge pollutants to sources of drinking water and expose individuals to listed chemicals without warnings in violation of Proposition 65. We jointly represented all noticed companies.

Result: No case was filed while we negotiated a low-cost settlement over the course of 18 months; the settlement allowed our clients to continue to sell their products while making technological improvements that were already planned.

Engine Exhaust 1999
An environmental group, Coalition for Clean Air, sued manufacturers of diesel truck engines, alleging that they were responsible for exposing pedestrians, employees, and others to carcinogens in the absence of warnings. We represented eight of the nine defendants. We first obtained a determination from the AG's office that the manufacturers were not responsible for issuing warnings. When this did not deter the plaintiffs, we litigated the case.

Result: We obtained summary judgment for our clients-the first ever defense judgment issued in a litigated Proposition 65 case.

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.

1997

Engine Emissions December 1997
Sixty-day notices were issued by the Pacific Justice Center ("PJC," now known as Klamath/Mateel) against manufacturers of diesel engines and diesel-powered off-road equipment. We negotiated a settlement on behalf of a coalition of engine and equipment manufacturers, which ultimately cost each defendant an average of less than $1,000. The PJC had filed a virtually identical case, at the same time, against manufacturers of small gasoline engines.

Result: We settled the diesel engine case in one third the time and for less than half the settlement cost as the PJC extracted in the case against small gasoline engines. Our settlement was recently upheld as res judicata to another plaintiff's claims.  Almost a decade later, another citizen's group, Environmental World Watch ("EWW") filed suit against manufacturers of diesel engines and their California dealers, alleging violations of Proposition 65 based principally on the theory that ambient air contains certain listed chemicals which result from engine exhaust. Result: We argued that the res judicata effect of the prior settlement with the PJC precluded EWW's action, took this case to trial on the merits, and obtained judgment for our clients-the first and only trial victory for defendants in a Proposition 65 case. (Our victory has since been upheld by the California Court of Appeal.)

Industrial Facility Discharges June 1997
Sixty-day notices were issued by the Pacific Justice Center ("PJC"), alleging "discharges to a source of drinking water" and failure to warn, in violation of Proposition 65. We represented Simpson Timber Company and persuaded the PJC to drop our client from the case.

Result: Charges were dropped. There was no cost to our client.

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.

1991

Ceramic Tableware
We represented Corning, Inc. (the market leader) in suits brought by the Attorney General and the Environmental Defense Fund ("EDF"), alleging that manufacturers of tableware failed to warn about lead leaching from ceramic dishes. We realized that, although the state's "safe harbor" exposure standard was set by regulations in micrograms per day, the key to the case was how to measure emission/exposure from the product to determine if it exceeded that standard. We negotiated the measurement formula with the California Attorney General so that, when measured according to the formula, the chemical released from our client's product was shown not to exceed the standard.

Result: The Attorney General and the EDF dropped Corning from their cases. All other ceramics manufacturers were sued and spent months in litigation and negotiation before they settled the case for more than $2.3 million in cash plus the cost of participation in an ongoing retail warning program. Our client paid nothing and has no warning obligation. The manufacturers' trade association has since engaged us to serve as its ongoing Proposition 65 counsel. We recently obtained a letter for its members from the AG's office that exempts them from having to warn for another chemical that has been listed by the state.

1990

Liquid Paper
We represented Gillette in suits brought by the Attorney General and the Environmental Defense Fund, alleging that Gillette violated Proposition 65 by failure to warn that typewriter correction fluids exposed users to a reproductive toxin. Gillette's principal objective was a rapid resolution without adverse publicity. The plaintiffs wanted a recall and substantial publicity.

Result: Settlement allowing interim warnings pending product reformulation (which had already been planned) and the payment of a small penalty. Recalls were avoided, market share preserved, and the suit settled in a matter of weeks.

Industrial Facility Emissions
In this suit, Citizens for a Better Environment alleged that, as a result of prevailing wind patterns, our client had exposed a nearby trailer park to emissions of a Proposition 65-listed carcinogen used in the laboratories of its manufacturing plant.

Result: We settled all claims in a few weeks for $55,000 (including attorneys' fees). Claims by trailer park occupants - our client's principal concern - were avoided.

The Wine Cases
In suits by the Attorney General and the Milberg Weiss law firm alleging that the use of lead foil caps on wine bottles exposed persons to lead, we served as joint counsel for beer, wine, and spirits trade groups.  We negotiated an agreement whereby the Attorney General would first sue and then enter into a "model" settlement with high-profile wineries.  The settlement included an unprecedented "opt-in" provision - it allowed all members of the industry to "opt-in" to get the protection of the settlement and share in its costs. 

Result: Defendants were able to put the litigation behind them at a one-time cost of less than three cents per case of wine.  "Bounty hunter" class actions were then dismissed on the grounds that the previously negotiated settlement with the Attorney General precluded any further claims.  The "opt-in" clause has since become a common feature of most Proposition 65 settlements. 

Cigars/People v. Safeway
This suit, the first Proposition 65 enforcement action, was brought by the Attorney General against makers of cigars, retail grocery chains, and the Ingredient Communications Council for failure to provide a Proposition 65 warning.

Result: We represented the cigar makers and, on their behalf, negotiated a consent decree, which required product warnings and an industry-wide payment that worked out to less than $2,000 per company. The retailer defendants, represented by other counsel, spent more than $1 million litigating the matter before agreeing to pay nearly $1 million to settle.

More Recent Cases. Ten years after the consent decree with the Attorney General was negotiated, the City Attorney of Los Angeles, the City of San Jose, and a set of bounty hunters filed cases alleging that cigar manufacturers and retailers failed to adequately warn non-smokers about exposures to secondhand smoke (listed under Proposition 65 as environmental tobacco smoke). Result: Our demurrer to the Los Angeles case on grounds of the res judicata effects of the AG's prior settlement was sustained within a few weeks of that action being filed; we then obtained a transfer of the San Jose action and prevailed on a motion to dismiss that case on the same grounds.