By James Mattesich and Tim Naccarato

In December 2001, private enforcers served 60-day notices, threatening lawsuits, on 3,500 companies doing business in California. The number far exceeded the number served in a month ever before and exceeded the number served in most years.

It appears that the private enforcers served the notices in December to avoid new provisions added to Proposition 65 last year in SB 471. Part of the provisions, going into effect on January 1, 2002, requires a private enforcer to certify that the enforcer has consulted with an appropriate expert who has reviewed the relevant information and that there is a reasonable and meritorious case. The supporting information and the certificate of merit is to be served on the Attorney General with the 60-day notice.

The December notices prompted the Attorney General to write to the private enforcers expressing concern that the notices were served to avoid the certificate of merit, reminding the private enforcers of their obligation to conduct a reasonable inquiry before initiating litigation, and questioning whether that had been done.

The Attorney General cautioned the companies served with the notices against entering into early settlements. He also asked the companies to review the notices carefully and bring to his attention all deficiencies in them.

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