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California Attorney General (AG) Jerry Brown, who took office in January 2007, and Deputy Attorney General Ed Weil contacted Proposition 65 plaintiff's attorney Cliff Chanler in May to question the "manner in which (Chanler and his clients had) pursued Proposition 65 matters concerning lead in the surface coatings of glassware and ceramicware." Cliff Chanler has represented plaintiffs Michael DiPirro, Russell Brimer and Whitney Leeman against numerous manufacturers, retailers, distributors and others who are involved in the sale and distribution of decorated glass/ceramic ware in California. Chanler also negotiated the "Boelter" Proposition 65 opt-in settlement, which was joined by 205 defendants.
The Society of Glass and Ceramic Decorators (SGCD) contacted California AG Brown to express support for his efforts and to ask him to carefully review how Proposition 65 warning threshold standards are effectively established for an industry as part of private opt-in settlement negotiations. The SGCD also asked Brown to examine defects in the process that have resulted in excessive profits for attorneys involved in the opt-in process.
In the Chanler letter, AG Brown does not question the underlying issue of alleged lead exposures from the outside surfaces of glass/ceramic ware; however, he notes that Chanler has collected $15 million from glass/ceramic defendants since the inception of these actions, and that $9.2 million of that amount was charged as attorney fees by Chanler's firm. Brown also noted that the Boelter opt-in settlement has generated total payments of over $9 million, with $5.3 million in attorney fees for Chanler and $1 million in opt-in processing fees for defense counsel Morrison & Foerster.
After summarizing the glass/ceramic allegations and resulting decisions and settlements in his letter to Chanler, Brown noted that his office was concerned that the defendants had collected significant sums of money from businesses that may have had little or no liability, and on attorney fees that appeared excessive. Brown noted that several retailers may have had no knowledge that lead was present in the products in question, and that they could have avoided liability by acting promptly to warn or remove the questioned products from their shelves. Brown also analyzed the likely amount of legal time required to process an opt-in settlement following a template, and indicated that the fees appear to be excessive.
Brown concluded by asking Chanler to respond to six specific questions related to these issues. He also noted that the Attorney General's office is considering a number of actions to address its concerns with options that include the possibility of an education campaign for affected entities, closer scrutiny of settlement documents and fee applications, and taking over future actions originally filed by private plaintiffs.
SGCD had urged Ed Weil and the Attorney General's office in several meetings in 2004 and 2005 to take a more active role in the developing glass/ceramic Proposition 65 allegations, although the process progressed as it did when the Attorney General declined direct involvement.
More than 400 Proposition 65 notices related to glass and ceramic ware have been filed since the August 2005 Boelter opt-in settlement, with some allegations remaining to be either settled or litigated. Although there is no official state warning threshold for non-food contact surfaces of glass and ceramic ware, Proposition 65 warnings are an option for companies to establish a defense against allegations that ware exposes consumers in California to lead or cadmium.