Yesterday the California Attorney General’s office sent a letter to the Proposition 65 plaintiffs’ bar regarding the use of releases in Proposition 65 cases. The AG’s letter noted that it is concerned about releases in Prop 65 cases that have been given “in the public interest.” The letter noted that these releases are typically problematic when they attempt to combine the release being given in the public interest with the release being provided by the plaintiff in its individual capacity. The AG stated that these releases have become “convoluted” or, in some cases, “overbroad, meaningless, or affirmatively misleading.”
To be clear– a plaintiff in a Prop 65 may provide a release “in the public interest” and plaintiffs in Prop 65 cases regularly do so. However, the AG noted that such releases may be provided only for alleged violations of Prop 65 as alleged in the original, corresponding, 60-Day Notice of Violation. The AG expressed concern that some releases have attempted to cover alleged Proposition 65 violations that were outside the scope of the corresponding Proposition 65 60-Day Notice. The AG then provided in the letter recommended release language for future settlements/consent judgments. This language is only applicable when the release is being given in the public interest. Additionally, the AG stated that it believe the appropriate language for releases is “in the public interest,” not “on behalf of the general public” or “the People.” The AG argued that this language tracks the statutory language and thus, is what should be used in releases.
The AG did not opine or take a position on releases by Prop 65 plaintiffs which are given by plaintiffs in their individual capacity only, other than to note that such releases should be broken out in a separate section from the public release.
This letter should not come as a surprise to the Prop 65 plaintiffs’ bar (or those, like myself, in the Prop 65 defense bar). And the AG does, from time-to-time, send out such communications to make its position on such subjects known to Prop 65 practitioners. But it is something that companies that are currently involved in Prop 65 litigation should review and keep in mind during settlement negotiations.
The AG’s full letter can be found here: http://ag.ca.gov/prop65/pdfs/prop65releases_cases.pdf