Environmental
Jun. 26, 2002
Third Party Allowed in Prop. 65 Case
SAN FRANCISCO - A Superior Court judge Monday approved a Proposition 65 settlement with the maker of valves used in water pipes, but not before allowing a plaintiff who had no direct connection to the case to appear and object to the deal.
An attorney for the manufacturer said Superior Court Judge A. James Robertson's actions may give third parties new incentive to try to disrupt deals struck under the consumer and environmental protection statute.
In the end, Robertson overruled the objections raised by the interloper San Francisco organization As You Sow. Even so, attorneys directly involved in the case expressed concern about Robertson's decision to allow a third party to appear as an amicus.
As You Sow, which specializes in suing companies under Proposition 65, used the opportunity to express concerns about an agreement struck by an Oakland plaintiff, Environmental Law Foundation, and the city of San Francisco with the defendant, Nibco Inc.
"I think his allowing them to appear as amicus might encourage this kind of thing in the future," said attorney Trent Norris, of San Francisco's McCutchen, Doyle, Brown & Enersen, who represents the valve manufacturer.
The decision means that defendants might have to "settle with everyone else who might sue you" and would drive up the cost of Proposition 65 litigation, he said.
Sharing those concerns was Iryna Kwasny, an attorney for the Environmental Law Foundation.
"We would rather see defendants spending their money on complying, rather than [plaintiffs] collecting oodles of dollars on attorney fees," she said.
Under the agreement approved Monday, the Indiana manufacturer will pay $83,000 in penalties and attorney fees to settle a 1999 lawsuit accusing it of distributing valves that leached lead into drinking water. The company also agreed to provide warnings to consumers and to undertake an estimated $2.9 million program to make changes in its valves to substantially reduce the amount of lead they give off. People v. Matco-Norca, 308832.
Proposition 65, approved by voters in 1986, forbids companies from distributing products that can expose consumers to any of hundreds of chemicals capable of causing cancer or birth defects without issuing warnings. It also flatly bans introducing those substances into drinking water.
As You Sow's concerns centered primarily on the scope of the settlement. An attorney for the organization, which last October filed a similar case against Nibco and other companies, worried the deal could be used to thwart its case.
"This settlement is going to be used as a bar to other claims against [Nibco], including my client's claims," As You Sow lawyer Andrew Packard told Robertson on Monday.
As You Sow first formally raised its objections June 17. In briefs filed with the judge, the organization criticized the settlement for covering only valves used in residences. That would leave the company free to continue to sell lead-leaching valves for use in schools, hospitals and restaurants, the group said.
Valves used in those institutional settings are targeted in As You Sow's suit and "must not be released" by the Environmental Law Foundation settlement, the organization argued in its briefs.
Following the hearing, Norris said he believes the settlement does knock out much of As You Sow's lawsuit.
"We intend to raise this as a bar at least to a substantial part of their case," he said.
In a joint response to As You Sow, the parties to the settlement labeled the San Francisco group "an officious intermeddler" that had no right to participate. Supporters of the agreement warned that allowing As You Sow in the case would undermine a recent overhaul of Proposition 65 and could "open the floodgates" to similar filings in future settlements.
As of Jan. 1, state law requires all Proposition 65 settlements to be brought to a court for approval. But it specifically allows only the attorney general to participate in cases without formally intervening.
"In enacting this provision, the California Legislature recognized the potential for mischief - now coming true a mere six months after the law's effective date - in requiring that all settlements be subject to court approval," the joint brief reads. Lawyers for Nibco, the Environmental Law Foundation and San Francisco City Attorney Dennis Herrera signed the document.
Robertson questioned how the deal would affect As You Sow, which was not a party to the case. He nevertheless allowed the organization to appear as an amicus, saying the agreement would affect the public and that As You Sow had had a "substantial involvement" in such matters previously.
"This is the type of thing the court should be liberal on, listening to objections on these matters," Robertson said.
It was the second time in recent months Robertson has allowed non-parties to Proposition 65 cases to appear on proposed settlements. In May, the judge allowed representatives of plaintiffs and defendants, including some who were not involved in the case at hand, to address concerns about a settlement involving Proposition 65 and the state's Business and Professions Code Section 17200.
Norris speculated that As You Sow's interest was primarily financial.
"I think the bottom-line concern is that Nibco is not paying enough money," he said.
Packard dismissed that criticism as "standard defense-bar rant." He said he had never discussed financial terms with Norris, "so I don't know what basis he has for saying that."
Packard said he hoped judges will be generous in allowing criticism of Proposition 65 settlements, even those in which he is involved.
"I think that given the fact that it is the people's rights and the people's initiative that are being affected by the court, the broader array of views the better," Packard said.
Dennis Pfaff
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