Since 2000, About $150 Million—Two-Thirds Of Settlement Payments—Have Gone To Prosecuting Proposition 65 Attorneys.
Dr. Joseph Perrone, Chief Science Officer at the Center for Accountability in Science, has authored an OpEd article in the September 10, 2015 edition of The Orange County Register. Among other things, he surveys the settlement payments made under Proposition 65, which requires business to label products containing chemicals that may cause cancer or reproductive harm. If a plaintiff is successful in bringing an action under Proposition 65, he or she is entitled to recover attorney’s fees under CCP § 1021.5. (Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 560-561 (2004).) Given the existence of this potential fee shifting, many Proposition 65 settlements provide for the award of fees to plaintiff’s counsel under “clear sailing” provisions. Dr. Perrone informs us that in 2014 alone, Proposition 65 cost businesses more than $29 million in settlement payments. Since 2000, he further reports that California businesses have paid more than $228 million in settlements with about two-thirds of that money (over $150 million by our calculation) going to attorneys.
Under Proposition 65, the court must determine that the fees were reasonable. In a recent First District decision, the appellate court reversed a trial court’s approval of a settlement and reduction in fees under CCP § 664.6 given that the fees were part and parcel of the entire settlement. (See Leeman v. Adam Extract & Spice, 236 Cal.App.4th 1367 (2015) [discussed in our April 30, 2015 post when it was unpublished, but later certified for publication].)