November 14, 20220

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.

Click the image above to hear Vineet’s answer.

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.”

Click the image above to hear Vineet’s thoughts on the Bushnell lawsuit.
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.
This discussion led to a question about whether there should be a definable standard for individuals or entities allowed to file Prop. 65 complaints. Defense attorneys in the audience suggested limiting who is allowed to file Prop. 65 lawsuits by making plaintiffs demonstrate relevant background and expert qualifications, to weed out plaintiffs who are not adequately knowledgeable about the issue.

Panelists pushed back, noting that plaintiffs don’t have to be scientists or well-versed in the subject, but can rely on the experts to explain the science.

Creating qualifications also goes against the language of the law, in which anyone can bring a Prop. 65 complaint in good faith, Dubey said. “I don’t think it’s necessary, he said, though perhaps factors courts look at to determine whether a plaintiff is an adequate representative for a class action lawsuit could provide a guideline for Prop. 65 plaintiffs.

In class action lawsuits, the plaintiff:

  • Must have claims or defenses… typical of the claims or defenses of the class.
  • Be able to fairly and adequately protect the interests of the class.
  • Must have suffered the same type of losses under similar circumstances as the class.
  • Should not have a conflict of interest with the other class members.

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.