Proposition 65 Advisory

Proposition 65 Advisory 02-II

Attorney General Responds to New Year's Eve Notices*

California Attorney General Bill Lockyer and his staff issued a series of stern letters to "bounty-hunter" attorneys who filed over 4,000 Notices of Intent to Sue during the closing days of 2001. The letters admonished the attorneys that the volume of their Notices, filed shortly before the Senate Bill 471 reform measures were to take effect, could support an inference that their intent was to avoid the requirement to file a "Certificate of Merit" documenting that each claim in each Notice was supportable under Proposition 65. The letters further warned that any settlements negotiated as a result of the Notices would be subject to the Attorney General's review, and that the Attorney General may appear in court concerning any such settlements.

The Attorney General sent at least fourteen letters, each concerning distinguishable groups of Notices, to at least four different attorneys. Discerning readers will find different points of interest in each of the letters, additional to and separate from the deterrent effect the letters may have on these filers. For example, one letter to counsel for Citizens for Responsible Business, Inc., addressing approximately 1200 Notices that alleged warning violations arising from air emissions, the Attorney General raised questions elucidating the elements that must be proved to show an "environmental exposure" under Proposition 65. Other letters to counsel for Consumer Advocacy Group, Inc., raised similar questions regarding elements that must be proved to show an "occupational exposure" to consumer products distributed in the State. Another Consumer Advocacy Group letter reminded the filer of the necessity to provide supporting information regarding the alleged violations for each recipient of each Notice.

Because these letters provide so much useful information to manufacturers, distributors and retailers subject to Proposition 65, we are making them available on our website. You may access the letters http://www.mckennacuneo.com/practice/prop65/Prop65Letters.html. If you need information regarding these letters (or if you believe the Attorney General should have written a similar letter concerning a Notice that your company received) please contact one of the attorneys below.

*Editor's Note: The press of business in the first few months of 2002 prevented us from issuing our monthly Advisories. This Advisory is the second in a series of three that update our readers on developments flowing from the December, 2001 deluge of notices discussed above.

McKenna & Cuneo, L.L.P., distributes its Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please call Nina MacLeay at 213-243-6063.

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