60-Day Notice

The Marin County Superior Court today granted the motion of Dr. Anthony Held, a client of The Chanler Group, to approve a Proposition 65 Settlement and Consent Judgment entered into with Kiss Nail Products, Inc. and Kiss Products, Inc. (collectively Kiss), in which Kiss has agreed to pay civil penalties and reformulate its pedicure and manicure kits to reduce or virtually eliminate the presence of DEHP, a phthalate chemical known to the State of California to cause reproductive harm.  Dr. Held’s Proposition 65 action against Kiss was filed three years ago, on March 25, 2011, and involved extensive, and at times aggressive, litigation. 

Prior to the settlement agreement’s fruition, Dr. Held, through his TCG attorneys, defeated Kiss’s motion for summary judgment.  A major part of Kiss’s argument involved presenting expert evidence in an attempt to establish that contact between Kiss’s products and the skin of individuals using the products (“dermal exposure”) did not exceed the maximum allowable dose level for DEHP.  Relying on Kiss’s evidence, the California Attorney General’s Office sent Dr. Held a public letter, in which it appeared to support Kiss’s motion, and requested that Dr. Held withdraw a then-pending supplemental 60-day notice regarding additional products that Kiss offered for sale in California.  The letter was sent in time for Kiss to use the letter in its reply brief in support of summary judgment.  Despite Kiss’s efforts, and the Attorney General’s letter, the court denied Kiss’s motion for summary judgment, finding that Kiss's scientific expert failed to provide an evidentiary basis for his opinion regarding dermal exposure.

After three years of litigation and the apparent overreach of the Attorney General’s Office, Dr. Held’s ultimate settlement with Kiss resulted in a substantial benefit for the public.  The Marin County Superior Court has vindicated the efforts of Dr. Held and The Chanler Group in its approval of the settlement.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

Excerpted from the full article at Prop. 65 Clearinghouse:

At end of summer, a flurry of 60-day notices were sent by Proposition 65 plaintiffs Russell Brimer and Whitney Leeman. Both are represented by Connecticut-based attorney Clifford Chanler. The 30 new notices and two amended letters were sent to manufacturers, distributors and retailers of painted glass and ceramic ware.

Although Brimer and Leeman have filed 266 notices over the last four years (152 since 2004 for Brimer, and 114 since 2001 for Leeman) this latest batch may be due in part to two recent cases: Brimer v. The Boelter Companies and DiPirro v. JC Penney (Michael DiPirro is also represented by Chanler.)
 

Excerpted form the full length article in Prop. 65 Clearinghouse:

With the latest group of 60-day notices from Russell Brimer and Whitney Leeman, clients of Prop. 65 Connecticut-based attorney Clifford Chanler, have put them way ahead of other plaintiffs in filing notices this year. Together they have filed 146, leaving the other plaintiffs in the dust. The closest other plaintiff is Consumer Defense Group with 64, and coming in third is Environmental World Watch with a mere 26. The rest of the well-known Prop. 65 plaintiffs have only sent about 55 notices.

Brimer and Leeman keep on course with most of their 45 letters going to manufacturers, distributors and retailers of glassware and ceramicware with exterior artwork allegedly containing lead and cadmium.

The only other notice during this period was from Reuben Yeroushalmi for fumes from asphalt products generated by construction companies. link to source.
 

The California Attorney General (“CAG”) sent a letter to Proposition 65 plaintiffs and their attorneys regarding release language used in settlement agreements between citizen enforcers and alleged violators.  The letter suggested replacement language that should be used in release provisions.

Release provisions in the public interest that are contained in settlement agreements negotiated by clients of The Chanler Group are narrowly tailored to the violations alleged in the Sixty-Day Notices.