On Jan. 10, 2014, the Hon. George C. Hernandez, Jr. denied Bexco’s Motion to Strike portions of TCG client Peter Englander’s complaint, leaving intact Englander’s allegations in the complaint that all upholstered furniture products with foam padding containing the Proposition 65-listed chemical flame retardant tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) manufactured by Bexco are sources of potential Proposition 65 violations and covered by Englander’s 60-Day Notice of Violation.
Bexco contended that Englander’s notice applied only to the specific exemplar product, a gliding rocker identified as the Da Vinci Classic Sleigh Glider and Ottoman, and accused Englander of trying to “expand the reach of this private action far beyond a fair reading of that 60-Day Notice, to include all Bexco furniture that can be shoehorned into a generic description.” Bexco would require TCG’s client to purchase and test at least one of each Bexco product he wishes to have included in the lawsuit.
In his opposition to the motion, TCG attorney Brian Johnson countered that Englander provided Bexco with “notice of its alleged violations in a manner that exceeds the form and content required by the statute” and that Bexco can “very easily discern what type of products are allegedly in violation, because Plaintiff has provided the product category of ‘upholstered furniture’.” For Bexco to suggest that Englander must issue a notice for every piece of Bexco’s furniture that is in violation of Proposition 65 is “simply not the law.”
In denying Bexco’s Motion to Strike, Judge Hernandez noted as set forth in Englander’s opposition that “no authority requires a putative plaintiff to identify the specific component of a product containing a toxic chemical…describing the product category or type in terms of common usage or understanding is sufficient.” He went on to write, “…nor does this complaint suggest the kind of speculative, scattershot notices utilized by ‘bounty hunters’ [in cases Bexco claimed analogous]…It identifies specific items manufactured by the Defendant, specifically identifies two exemplars that have been tested and plaintiff contends contain listed chemicals, and identifies the retailers who sold these exemplars to plaintiff.”
In light of the Court’s denial the case will proceed on the Court’s trial calendar, and Bexco is potentially liable for all of its TDCPP-containing upholstered furniture sold without a Proposition 65 warning in California after October 28, 2012, when the warning requirement for TDCPP took effect. Englander’s enforcement of the alleged violations continues as the parties evaluate potential resolutions in the public interest.
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.
