Our lawyers have been the go-to authority on Proposition 65 since its adoption. Under the leadership of Michèle Corash, former general counsel of the U.S. Environmental Protection Agency who authored the principal ballot argument against the Prop 65 initiative in 1986, MoFo’s Prop 65 team established itself as the business community’s preeminent voice in Prop 65 litigation, settlements, listings, and reform efforts. Today, our Prop 65 lawyers carry on this legacy and are routinely recognized for their impressive performance: partners Robert Falk, Peter Hsiao, Michael Steel, and William Tarantino are all hailed by Legal 500 and Chambers & Partners for their litigation expertise. No defense group is more experienced, and no team is better prepared to deliver quality results.

Our Clients and Industries

  • Manufacturers
  • Distributors
  • Retailers
  • Grocers
  • Food Service Operators
  • Food & Beverage
  • Automotive
  • Plumbing & Hardware
  • Apparel
  • Electronics & Household Appliances
  • Cosmetics & Personal Care Products

Our Experience

Our lawyers have won some of the biggest and most significant Prop 65 cases to come before the California courts:

  • Dowhal v. SmithKline: a California Supreme Court case holding that federal law can preempt Prop 65—the first and only Supreme Court Prop 65 decision favoring a defendant.
  • American Meat Institute v. Leeman: a California appeals court case, which also held that Prop 65’s warning requirements were preempted by federal law.
  • Environmental World Watch v. Cummins Engine Co.: the first defense verdict achieved after trial in a Prop 65 case; we showed that the plaintiff’s claims were barred due to the disposition of a prior plaintiff’s claim.
  • Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.: a California appeals court upheld our defense verdict, a decision based on actual consumption of food products not presenting sufficient levels of chemical exposure to require Prop 65 warnings—one of the most significant trial court decisions in the statute’s 25-year history.
  • Lumber Liquidators: We represented the nation’s largest specialty retailer of hardwood flooring in over 130 class action cases in 28 states, a U.S. Consumer Product Safety Commission investigation, a California Air Resources Board enforcement action, and several state attorney general investigations. We successfully defended Lumber Liquidators in a Proposition 65 trial.
  • TiO2 Joint Defense Group: Defended over 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, which is commonly used as a key ingredient in cosmetics and sunscreens, causes a risk of cancer. Achieved dismissal of the case through a motion for summary judgment, a major win for the industry in a case involving a complex exposure scenario.

Even with this track record of courtroom success, our lawyers take pride in knowing when and how costly litigation can be avoided. We lead the way in negotiating innovative and cost‑effective Prop 65 settlements and consent judgments and getting the Attorney General’s office and the courts comfortable with them. We negotiated the first major Prop 65 settlement and have since authored and pioneered dozens of creative settlement structures, including opt-in and group settlement programs, future notice and cure provisions, and far-reaching downstream-liability releases that allow our clients to take care of their indemnity obligations and customers at no additional cost.

Our Knowledge

  • Major players: Cal. Office of the Attorney General, Cal. Office of Environmental Health Hazard Assessment, Center for Environmental Health, Mateel Environmental Justice Foundation, Environmental Law Foundation, Chanler Group, CERT, Metzger Law Group, and most of the Prop 65 plaintiff’s bar
  • “Hot” Prop 65 chemicals: acrylamide, lead, cadmium, diesel/gas, DEHP/DINP, furfuryl alcohol, BPA, and styrene
TiO2 Joint Defense Group
Defended over 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, which is commonly used as a key ingredient in cosmetics and sunscreens, causes a risk of cancer. Our motion for summary judgment was granted in July 2015. Plaintiff’s expert admitted that he could not specify which TiO2-containing products might result in exposure, and all he could say was that it was more likely than not that some products would require a cancer warning. The court agreed with our argument that such expert opinion does not provide a “credible factual basis” for going to trial. Plaintiff has agreed not to pursue an appeal of the judgment.
Physicians Committee for Responsible Medicine v. KFC Corp.
Secured a victory on behalf of KFC and YUM! in Proposition 65 enforcement action brought by a vegan group seeking to use Proposition 65 warnings to stigmatize the consumption of grilled chicken. The trial court sustained defendants’ demurrer on a number of grounds, including that the plaintiff’s failure to obtain evidence of an actual violation of Proposition 65 before serving its mandatory pre-suit notice rendered its notice inadequate and its complaint invalid. The California Court of Appeal agreed, affirming the judgment in February 2014.
Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.
(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.

Legal 500 US 2017
Environment Litigation
Product Liability, Mass Tort, and Class Action: Consumer Products
Product Liability, Mass Tort, and Class Action Defense: Toxic Tort

Chambers USA 2017
National: Product Liability & Mass Torts
California: Environment

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