Robert Falk maintains a broad environmental/toxics and consumer products law-oriented practice. He has served as special counsel to a variety of businesses and trade associations, successfully counseling and defending them in litigation with respect to various environmental statutes and California's unique laws, including Proposition 65 ("Prop 65") and the unfair competition and false and misleading advertising provisions of its Business and Professions Code. Mr. Falk is also a leading expert on the Clean Water Act and California Water Code. He frequently serves as counsel to large corporations; real estate developers; healthcare organizations; and a variety of cities, counties, and special districts. His consumer products-related practice also 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 California's Green Chemistry Initiative.
Mr. Falk 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. He frequently publishes articles on environmental and consumer products law issues and previously co-authored the chapter on “Environmental Due Diligence in Real Property Transactions” in the West Publishing treatise Environmental Problems in Corporate Transactions.
Mr. Falk is a member of the American College of Environmental Lawyers and has chaired the American Bar Association's Standing Committee on Environmental Law. He currently serves on the Advisory Board of the Prop 65 Clearinghouse and the California Center for Law, Energy, and the Environment. His expertise in environmental and consumer product law has been recognized by Legal 500 US, Best Lawyers in America, The International Who's Who of Environment Lawyers, and SuperLawyers.Show More
(Cal. Superior Court, Alameda County). Scored trial and appellate victories for Del Monte, Dole, Gerber, Smucker’s, Welch’s, and 10 other companies in a case brought by the Environmental Law Foundation and Baron & Budd class action firm. Plaintiff argued that the companies’ baby food, fruit juice, and packaged fruit products must carry cancer and birth defect warnings because they contained trace levels of lead, notwithstanding the FDA’s findings that they were safe and posed no unacceptable health risk. The trial judge and unanimous panel of the California Court of Appeal rejected arguments that California’s Proposition 65 law required warnings on these products and rejected an enforcement policy long advanced by the California attorney general and numerous plaintiffs’ groups that falsely assumed that every type of food is consumed each and every single day of the year. This decision, considered to be one of the most significant in Proposition 65’s 25-year history, opens the doors to companies that wish to use expert testimony based on actual exposure data to defend themselves, and may have application, including to consumer class action cases, going forward.
Represent businesses and municipalities on National Pollutant Discharge Elimination System (NPDES) permitting and enforcement issues, including an administrative appeal of a recently issued “Municipal Regional Permit” for storm water discharges to San Francisco Bay and its tributaries. Also represent businesses and municipalities in total maximum daily load (TMDL) and other standards-setting proceedings concerning mercury, PCBs, pesticides, and pathogens. Currently testing the validity of certain far-reaching state-issued NPDES permit requirements as subject to suspension absent state-provided funding under the California Unfunded Mandates Initiative.
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.
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%.
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.
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, and 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 "[had] no merit."
(Bankr. D. Del.). Special environmental counsel to Maxus Energy Corporation and an affiliate relative to their Chapter 11 bankruptcy reorganization proceedings. By virtue of a pre-filing indemnification obligation associated with a chemical company it previously held and some of its other oil and gas-related interests, Maxus had been responsible for investigation and remediation activities at numerous contaminated sites throughout the United States, including being the lead player at some of the most noteworthy federal Superfund and Natural Resources Damages sites in the United States. Its affiliate had been and remains engaged in the provision of environmental remediation management services at these and other sites.
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.
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. Subsequently represented several leading juvenile products manufacturers in litigation and, ultimately, settlement negotiations concerning the use of fire retardant chemicals in infant car seats, bouncers, and nap mats.
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.
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.
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.
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.