Vineet Dubey: prop. 65 continues the fight for consumer safety

LOS ANGELES, CALIF., November 4, 2022 —The annual Proposition 65 Clearinghouse Conference brings together stakeholders to discuss trends, current issues and the future of the 1986 law that fundamentally changed the consumer safety landscape in this country.

This year, Custodio & Dubey LLP founder and co-partner Vineet Dubey was a featured speaker on one of the conference’s more philosophical panels, addressing the question “What does it mean to bring an action in the public’s interest?”

“Broadly, when we resolve a case whether it’s about lead in a food product or a phthalate in a sandal, we’re talking about an entire line of products that are part of the resolution,” said Dubey, who focuses on environmental law.

So whether it’s hundreds, thousands or tens of thousands of units of a specific product, after a Prop. 65 action is resolved that line of products will always be reformulated or carry a warning label, he said. That leads to more Californians not being exposed to cancer causing chemicals and making products safer for consumers in California and usually across the country. That’s the goal of taking an action in the public’s interest.

Another question involved a 2015 lawsuit filed by a disgruntled former employee against the Bushnell sporting goods company. Unhappy with his severance pay, the man threatened to sue Bushnell under Prop. 65 unless his severance was increased.

When Bushnell refused, he threatened to not file a Prop. 65 lawsuit if the company paid him $67 million. In exchange, he would sign an ironclad confidentiality agreement. The company refused again. So the man, who lived in Kansas, sued. But the court threw out his lawsuit, ruling that it was not filed in the spirit of Prop. 65 – which exists to benefit the public’s interest. Instead, his offer to keep a settlement private demonstrated that the case was prosecuted “for his personal pecuniary gain.”

While there may be instances where a plaintiff can join a Prop. 65 claim to a private lawsuit, such instances should be rare and very carefully weighed for even the appearance of a conflict of interest, Dubey said.

The well-attended conference was held in San Francisco this past September and brought together hundreds of plaintiff’s attorneys, regulators, environmentalists, bakers, manufacturers, retailers, herbalists, defense attorneys, chemists, corporate counsels, and more, to ask questions and seek to understand all aspects of the law.

The event featured guest panels and speakers on a range of topics, from how companies can comply with Prop. 65, to the right way to conduct product testing and analysis, to whether a private plaintiff can sue a company that has already settled a lawsuit for the exact same Prop. 65 violation.

During the past 10 years, Custodio and Dubey LLP has taken hundreds of manufacturers and retailers to court and resulted in thousands of cancer-causing products being taken off store shelves or reformulated. This has helped increase safety for millions of consumers throughout California.