Proposition 65 Advisory

Proposition 65 Advisory 02-I Proposition 65 "Bounty Hunters" Ring in New Year With Over 4,000 Notices of Intent to Sue*

Proposition 65 private-party enforcers, commonly referred to as "bounty hunters," closed out 2001 by serving over 4,000 Notices of Intent to Sue under the California Safe Drinking Water and Toxic Enforcement Act, (hereinafter "Proposition 65"). The end-of-year filings apparently were inspired by the desire to avoid the new "Certificate of Merit" requirements for Notices that took effect on January 1, 2002. Most of the Notices came in a few mass filings, repeating the same allegations against hundreds of companies.

The new "Certificate of Merit" requirements are the result of Senate Bill 471, enacted in 2001 to discourage the filing of frivolous claims under Proposition 65. Among other things, SB 471 requires a bounty-hunter plaintiff to file with a Notice of Intent to Sue a certificate stating "that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action." Cal. Health & Safety Code § 25249.7(d)(1). (For more information regarding SB 471, see Proposition 65 Advisory 01-X).

The most prolific of the New Year's Eve filers was a group known (ironically) as Citizens for Responsible Business, Inc. This newcomer to Proposition 65 litigation filed: 1,658 Notices against automobile dealerships, "offering" to settle a variety of Proposition 65 claims against them for $7,500 each; and approximately 1,200 Notices to businesses throughout California, alleging identical "occupational" and "environmental" exposures to a variety of chemicals listed under Proposition 65. The next-largest mass filing was accomplished by Consumer Advocacy Group, which filed 553 Notices alleging exposure to Proposition 65-listed chemicals in asphalt; 290 Notices alleging exposure to chemicals in coal tar; and additional notices concerning asbestos.

*Editor's Note: The press of business in the first few months of 2002 prevented us from issuing our monthly Advisories. This Advisory and two more to follow will update our readers on developments flowing from the December, 2001 deluge of notices discussed above. For further information regarding the Notices, please contact one of the McKenna & Cuneo attorneys below.

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