This is another Proposition 65 (Safe Water Drinking Water and Toxic Enforcement Act of 1986) case. As Justice Richman's opinion cogently recounts, it's the third straight published opinion -- all within the last several months -- to hold that even though a notice that lists contact information for the attorney (rather than the principal) for the plaintiff, that's sufficient "substantial compliance" with the statute to permit the lawsuit to go forward.
Which pretty much makes it a consensus. There accordingly shouldn't be much additional need to litigate this point from here on out.
There are several ancillary comments contained throughout the opinion, and I agree with most of them. For example, I think Justice Richman is entirely correct when he says that there are good reason to get attorneys involved in a potential pre-lawsuit negotiation from the get-go, something that's potentially advanced by a notice that lists the attorney as the relevant point of contact. Makes sense to me.
I nonetheless wanted to point out two comments with which I might respectfully disagree.
First, after describing the initial Court of Appeal opinion that found substantial compliance in an analogous setting, Justice Richman says:
"After full and deliberate consideration, we conclude the reasoning of Pancho Villa’s is sound, we adopt it as our own, and reverse. We have only one thing to add: here, the notice plaintiff sent to the Attorney General and all 'District Attorneys of California Counties and City Attorneys' evoked no response. From this silence can be deduced that not one of the recipients deemed the notice inadequate or misleading."
Respectfully: No.
That sounds to me more like the argument of an advocate, rather than actually reflective of the real world. What it really means is that DAs and City Attorneys get these types of notices all the time and pretty much uniformly pay them virtually zero attention, relying instead on private enforcement. They most assuredly did not examine the notice and say "Well, okay, everything looks good to me here, I find that the notice requirements are met, so I'll do nothing. Let me assure you that if I thought the notice was somehow erroneous I would be right on top of it and send a letter out to the plaintiff immediately."
It's just not a very good argument.
Second, the conclusion -- and most interesting part -- of Justice Richman's opinion says the following:
"We end with a closing comment. Running through defendants’ position here is criticism . . . that attorneys abuse the situation to generate attorney fees. This paragraph in defendants’ brief is illustrative: . . . "It is often outside counsel’s demand for attorneys’ fees (which can encompass up to 75 percent to 90 percent of a total settlement) that drives protracted Proposition 65 litigation. (Consumer Defense Group [v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185,] 1189 [(Consumer Defense Group)] [concluding in Proposition 65 private enforcement action that ‘[t]he bounty hunter lawyers wanted to get paid hefty fees, which is what the whole thing was obviously about in the first place’]; Consumer Advocacy Group Inc. v. Kinetsu Enterprises (2006) 141 Cal.App.4th 46, 49 [noting that the Legislature sought to prevent settlements ‘which simply result in inadequate public warning in exchange for payment of attorney’s fees.’].)”"
Those early 2000’s cases said what they said, the especially colorful Consumer Defense Group case chastising counsel at length with criticism after criticism, to the point it set aside a settlement. But whatever the state of affairs in the early 2000’s, there is nothing in the record to support that attorneys are currently misusing or abusing the situation for the purpose of generating attorney fees―and thwarting possible settlement. Indeed, the evidence before us indicates the contrary, HLF’s chief executive officer Steinman testifying as follows: “In every Proposition 65 case, HLF attempts pre litigation settlements that are in the public interest over lengthy litigation, and therefore designates counsel who resolves the vast majority, over 90% of HLF’s cases, without the need for litigation.”"
Ahem.
Let me make clear that I personally have no problem with providing private litigants, including their counsel, with bounties and incentives to enforce public statutes. Without a potential fee award, private enforcement in these settings would not occur because it would make zero economic sense. Permitting private enforcement may also be more effective, and perhaps even more cost-effective, that authorizing enforcement only by public officers (read: people paid with taxpayer dollars). Permitting fee awards in such case, paid by corporations that may have violated a statute, may also rightly shift the cost of such enforcement from the general public at large to the actual consumers of those products, a pro-efficiency move.
But let's not pretend that these cases aren't often -- very often -- lawyer- and fee-driven.
This is not some "early 2000's" reality. It's the nature of the beast, and remains so to the present day.
I would prefer to defend that situation on the merits rather than pretend that lawyers in this area are not out to make a buck. They are. For sure. (They may also perhaps be genuinely interested in making sure that public warnings about potentially cancerous chemicals exists. Perhaps. But let's be real. This is an industry that's about the money. As many, many industries are.)
The fact that the plaintiff's firm here (err, ahem, "the public interest group" here) resolves the vast majority of its cases pre-litigation -- often because the defendant sees the writing on the wall and puts up a notice in order to forestall a potential fee award -- is entirely irrelevant to the issue of the economic incentives behind the law firms that specialize in this area, much less "proof" that the interests of those firms are genuine and not motivated entirely by profit.
Lots of industries -- indeed, most of them -- are motivated by a desire to make money. You think that the founders of chemical plants, or food manufacturers, or Mark Zuckerberg or his ilk were centrally motivated by making the world a better place? Consider me unpersuaded on this point, at best.
Lawyers may (or may not) care about the causes they represent. Hopefully they do.
But let's be honest: Everyone's also gotta eat.
