All Proposition 65 settlements are supposed to be reported to the California Attorney General at least 45 days before going to court for approval, and all are posted on the Attorney General's web site. Then, once a year, the AG posts a compilation of the settlements on her web site here.
CalBizLit spent some time looking at this year's settlements to see what we could detect in the way of trends. And we now have our own compilation showing the average penalty, attorneys' fee / costs allocation and other payment for each bounty hunter private party enforcer. But first, some caveats:
First, what the AG herself says about this data is true:
Settlements generally include injuctive relief . . . such as product reformulation, emission reduction or warnings. This injunctive relief is often complex, cannot be presented in summary form, and requires reference to the actual settlement documents to accurately assess. This report should not be used by itself to evaluate Proposition 65 settlements.
Fine. Now another thing. The AG's counting of numbers of settlements isn't always accurate. For example, the AG shows 37 settlements by Center for Environmental Health for a thumping total of $6,933.300. That would average $187K per settlement, seemingly suggesting we should have all become bounty hunter private party enforcer lawyers when we got out of law school. But that's not right. Several of these were large opt-in settlements where scores of companies chose to join in. Since CBL doesn't have the time to wade through these settlement documents to get an actual count, we left these out of our analysis.
So with those caveats, here are the numbers for 2010 (you can click the image to see it upclose and big):
As you can see, the major players for 2010 were Russel Brimer, Center for Environmental Health, Consumer Advocacy Group, Anthony Held and Mateel Environmental Justice. CBL took a look at how their average settlement numbers compared over the last four years. Again, you can click the graphic to get a larger version:
Finally, CBL compared allocation of all the settlements over the same four year period amongst penalties (75% of which go to the State of California, which can use the money), "other payments" (environmental organizations designated by the plaintiff, and often the plaintiff organization itself) and attorneys' fees and costs. The more cynical among our readers will not be surprised at what we found:
Yes, that's right. Looking just at bounty hunters with settlements in 2010, less than 10% of the more than $38 million paid to them in the past four years went to penalties. 64% went to attorneys' fees and costs. And if you exclude the settlements by As You Sow and Center for Environmental Health, which are genuine environmental adocacy groups with missions far broader than Proposition 65 enforcement, seventy-six percent of all amounts paid to the remaining persons and organizations over the past four years went to attorneys' fees and costs.
Hmm, do we think this is what the voters had in mind twnty-five years ago when they went to the polls and enacted the "Safe Drinking Water and Toxic Enforcement Act of 1986?" I'm thinking maybe not . . . . .