Litigation

Court of Appeal Extends Baxter Decision, Allowing Declaratory Relief Against Bounty Hunter

By Bruce Nye

    As readers of Cal Biz Lit know, California's Proposition 65 prohibits a business with ten or more persons from intentionally exposing a person to a "chemical known to the State of California to cause" cancer or reproductive or developmental harm without first giving clear and reasonable warning.  On rare occasions, the statute is enforced by a civil action brought by the Attorney General.  More often,  it is enforced by a shake-down suit, err, I mean, enforcement action, by a bounty hunter, err, I mean "private party enforcer."  Lots more on this subject here, here, and, frankly all over Cal Biz Lit.

    In Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 359, the Court of Appeal ruled that, once a company learned that the State of California felt it was in violation of Proposition 65, it didn't have to wait for the ax to fall:  it could sue the State for declaratory relief that it wasn't violating the statute.

    Now, in American Meat Institute v. Whitney R. Leeman (December 22, 2009) ___Cal.App.4th___(D053325), the court has ruled that a company can do the same thing when it gets a sixty day notice from a bounty hunter:  turn the tables and sue the bounty hunter for declaratory relief that it has a complete defense to any enforcement action.

    And the court also ruled that the Federal Meat Inspection Act, (21 U.S.C. § 601 et seq) preempts Proposition 65 when it comes to an attempt to impose a warning requirement about chemicals in meat.

Full post as published by CalBizLit on December 23, 2009 (boomark / email).