Settlements of Proposition 65 cases can take the form of “out of court settlements,” such as those we reported on last month, or consent judgments. The latter are agreements between the parties that are in the form of judgments, that go to trial court for approval (after the Plaintiff files a Complaint and the Defendant an Answer). With rare exceptions, these are approved by the Court, and become both settlements and judgments.
Some bounty hunters mostly insist on consent judgment settlements for several reasons. One is that while agreed penalties are divided between the bounty hunter and OEHHA 25% / 75%, in a consent judgment, the parties can agree to additional payments -- “payments in lieu of penalty” -- that go 100% to the bounty hunters.
And some defendants insist on consent judgments as complete bars to other actions involving the same companies, the same products and different bounty hunters. California law establishes that a consent judgment entered into by a Plaintiff acting in the public interest against a Defendant company is res judicata protection for that company against others acting in the public interest so long as the same “primary rights” are at issue in both cases. Consumer Advocacy Group, Inc. v. ExxonMobil Corporation (2008) 168 Cal.App.4th 675, 688. While some bounty hunter lawyers resist these res judicata claims, some defendants are adamant that their settlements, for greater protection, should be in the form of consent judgments.
However, consent judgment settlements can be quite a bit more expensive than out of court settlements. By way of example, the average cost of an out of court Proposition 65 settlement in 2018 was $20,718, while the average cost of a bounty hunter consent judgment was $70,841.
And here’s something else that shouldn’t be too much of a surprise: Of the $30,385,439 in consent judgment settlements in 2018, about 14.5% went toward penalties, 6.35% to payments in lieu of penalties, and 79.15% to attorneys’ fees and costs.
As we mentioned in our February 11 post, the Attorney General’s data is available here. But we had some disagreements with some of the AG’s report. In some instances, its numbers don’t match the actual consent judgments. In others, they treated settlements and payments by multiple parties as if they were made by just one. So we did our best to unwind that, and we also took the Attorney General’s one settlement out, leaving for this reporting the 406 consent judgment settlements between private party enforcers / bounty hunters and companies..
And with that said, our entire report is right here. And as before, if you have trouble reading either half of the chart, click it and it will pop up bigger in a larger window.
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