The Tide Comes In, The Tide Goes Out

There are certain things that you can predict with relative certainty, such as the tide and the annual Proposition 65 Private Settlement report. I have been waiting since early April for the Attorney General to post the annual Summary of Proposition 65 Private Settlements. I was giddy with anticipation when it finally was posted the other day. Just as a warning (no pun intended), there will be no surprises for those of you who follow this annual posting. The abuse of Proposition 65 is alive and well for now.

I will applaud the Attorney General’s office for making this report a little easier to read and understand. Sometimes, for non-lawyers, this stuff can get a little confusing. So let’s highlight some of my favorite parts:

• Total Settlements for 2012 = $22,560,022

• Total Non-Contingent Civil Penalties = $4,095,095.54

• Attorney Fees and Costs = $15,588,763.93 (69.10%)

Here are a few examples of the 17 plaintiffs (give or take; excluding the Attorney General’s office and other government-related plaintiff actions):

• The Consumer Advocacy Group had 59 settlements. The total for the settlements was $2,615,000. Of that amount, a civil penalty in the amount of $117,250. Their Attorney Fees and Costs totaled $2,227,500 – 85% in fees and costs!

• Anthony Held had 58 total settlements totaling $2,581,060. $490,310 was paid in civil penalties and Mr. Held walked with 81% of the total in fees totaling $2,090,750. He also had a number of other settlements with some of his cohorts, in which they split the fees, which were between 79% and 83%.

• Russell Brimer had a total of 46 settlements, with $344,400 paid in civil penalties and $1,676,500 (82.79%) paid in attorney fees and costs.

Proposition 65 was written by trial lawyers. By creating private rights of action, they have allowed some in their ranks to abuse the intent of the original initiative. The public should seriously question attorney’s being awarded 80% fees and more. CALA has long documented and talked about this abuse. And by the looks of it, the Consumer Advocacy Group has already filed 112 60-Day Notices this year.

We are hopeful that this abuse practice will come to an end. While Proposition 65 is complicated and there are a lot of different interests at the table working to fix these abuses, I believe there is a middle ground. These rogue attorneys are not doing anyone a service.