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October 26, 2002

Policy Break: Legal Reform


Knowing that you're a sucker like I am for stories of hard working young people who struggle despite adversity to rise in their profession, I would recommend an interesting story in the Los Angeles Times (which you can read in full here) on lawyers who gin up meritless claims based on California’s Proposition 65 against businesses, in the hope that the businesses involved will settle to make the claim go away.

In case you haven't spent enough time in the Golden State to notice, Prop. 65 is responsible for all those little notices you see in California gas stations and other public businesses saying “Products Sold or Used on These Premises May Contain Chemicals Known to the State of California to Cause Cancer or Birth Defects." For years I’ve wondered what possible benefits such signs confer, since I’ve never seen anyone—pregnant women who won’t use aspirin included—jump back in their cars and roar away from gas stations where such signs are posted.

The story focuses on Morse Mehrban, a Mercedes roadster-driving 33-year-old attorney who frequently sues on behalf of a non-profit organization Consumer Cause, which is run by his mother and his fiancé. This is not a uniquely smelly circumstance; of the over 5,000 such claims filed annually in California, most are on behalf of such nonprofit organizations that are, ahem, ‘linked’ to the lawyers filing the cases. Plaintiffs in Prop. 65 cases are not required to show personal harm and, if victorious, are entitled to attorneys fees—which, when Mehrban is representing Consumer Cause, are charged at $400 an hour. Mehrban and his mom (isn’t it nice, a boy and his mom in business together) rely on an annually published list of more than 700 chemicals known to the California governor to cause cancer, birth defects or other reproductive harm.

Among his “greatest hits” Mehrban must include his successfully settled suit against a kosher market for selling imported cigars that didn’t have the U.S. Surgeon General’s warning about the dangers of smoking. His less successful cases have to include a decision by Superior Court Judge Brett C. Klein, who tossed out a lawsuit filed by Mehrban on the basis that Prop. 65 claims had to be brought in the public interest, while the attorney was obviously acting in his own private interest; the judge went on to describe Mehrban’s activities as “racketeering.”

Unfortunately, Judge Klein is apparently in the minority on the California bench. The Second District Court of Appeals held that a business utilizing one of the Prop. 65 chemicals, in any quantity, bears the burden of proof of showing such usage is safe if it has not posted the relevant sign—a burden that probably would require millions of dollars in scientific studies. On that particular case, which concerned the presence of minute amounts of mercury in silver dental fillings, the dentists decided to settle for $20,000. But it’s a small price to pay to keep the public safe, don’t you think?



posted by Friedrich at October 26, 2002


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