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					                          TITLE 11. DEPARTMENT OF JUSTICE
                          OFFICE OF THE ATTORNEY GENERAL

                          NOTICE OF PROPOSED RULEMAKING

Notice is hereby given that the Department of Justice, Office of the Attorney General, proposes
to revise Title 11, California Code of Regulations, Division 4, Chapter 1, sections 3000 through
3008, and to adopt new Chapters 2 and 3, sections 3100 through 3204, which would implement
new statutory provisions governing civil actions filed by private persons in the public interest
pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, as amended by
Chapter 599, Statutes of 1999, and Chapter 578, Statutes of 2001 (Proposition 65).

PUBLIC PROCEEDINGS: Two public hearings will be held, at which time any person may
present statements or argument orally or in writing relevant to the action described in this notice,
at the following times and places:

•      April 23, 2002, commencing at 10:00 a.m., in the Auditorium at the Ronald Reagan State
       Office Building, 300 S. Spring Street, Los Angeles, California; and

•      April 26, 2002, commencing at 10:00 a.m. in Room 1, Second Floor, at the Elihu Harris
       Building, 1515 Clay Street, Oakland, California.

Any written statements or arguments must be received by the Office of the Attorney General at
the following address by 5:00 p.m. on April 26, 2002, which is hereby designated as the close of
the written comment period. Comments sent by mail, courier, or fax, should be addressed to:

                               Edward G. Weil
                               Deputy Attorney General
                               Office of the Attorney General
                               1515 Clay Street
                               20th Floor
                               P.O. Box 70550
                               Oakland, CA 94612
                               Fax: (510) 622-2270

It is requested, but not required, that written statements or argument be submitted in triplicate.

CONTACT: Inquiries concerning the proposed administrative action described in this notice may
be directed to Edward G. Weil, Deputy Attorney General, in writing at the above address, or by
telephone at (510) 622-2149. If Mr. Weil is not available, inquiries may be directed to Susan S.
Fiering, Deputy Attorney General, at the same address, or by telephone at (510) 622-2142.
Inquiries concerning the substance of the proposed regulations may be directed to Mr. Weil, or if
he is not available, Ms. Fiering.




                                                 1
INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

A.     Private Enforcement of Proposition 65.

        Under Proposition 65, enforcement actions may be brought by the Attorney General,
District Attorneys, and certain City Attorneys. In addition, any person may sue "in the public
interest" if they give notice of the violation to the alleged violator, the Attorney General, and
those District Attorneys in whose jurisdiction the violation is alleged to occur. (Health and
Safety Code §25249.7.) In the first few years of the statute, the Attorney General received a
small number of notices. In the last two years, however, several thousand notices have been
received.

       Under SB 1269 (Statutes of 1999, Ch. 599), private plaintiffs must notify the Attorney
General when they file a case under Proposition 65, and when an action is subject to a settlement.
Certain information is required by the statute, and the Attorney General may require other
information. The plaintiff must certify to the court that it has complied with this part of the law.

B.     2001 Legislative Amendment

       SB 471 (Statutes of 2001, Ch. 578), adopted additional requirements for private
enforcement of Proposition 65. The subjects of this proposed rulemaking are the Certificate of
Merit Requirement and the requirement that courts and the Attorney General review settlements.

       1. The Certificate of Merit Requirement

       The statute states that sixty-day notices alleging failure to warn must be sent with a notice
in which the attorney for the party states that they have consulted with someone with:

       relevant and appropriate experience or expertise who has reviewed facts, studies, or other
       data regarding the exposure to the listed chemical that is the subject of the action, and
       that, based on that information, the person executing the certificate believes there is a
       reasonable and meritorious case for the private action. Factual information sufficient to
       establish the basis of the certificate of merit... shall be attached to the certificate of merit
       that is served on the Attorney General.

(§ 25249.7(d)(1); emphasis added.) Judicial review of this certificate is limited. A court may
review the certificate, but only if the court rules for the defendant and finds that there was no
actual exposure. Then, if the court further finds that “there was no credible factual basis for the
certifier‟s belief that an exposure had occurred,” the action is deemed frivolous under Code of
Civil Procedure section 128.5. The legislation does not specify the necessary elements of the
Certificate of Merit or any other consequences of failure to provide a proper certificate. Thus,
there is a need to provide greater specificity. The Attorney General already has received a
number of informal inquiries concerning the nature of a satisfactory Certificate of Merit and
supporting information. These regulations include provisions describing the form and content of
the Certificate of Merit, as well as potential consequences of failure to comply.



                                                  2
        Although the Attorney General is not the Governor‟s designated “lead agency” for
Proposition 65 implementation, he is the official designated by the law to receive all sixty-day
notices of violation, the Certificates of Merit, and the information in support of the Certificate of
Merit. Moreover, the purpose of the Certificate of Merit and supporting information is in part to
enable the Attorney General to determine whether he should pursue the alleged violation.
Accordingly, the Attorney General is the appropriate state official to adopt requirements
concerning the form and content of the Certificate of Merit and supporting information.

       2.      Judicial and Attorney General Review of Settlements.

         The judicial review of settlements provision states that any settlement of an action
brought by a person in the public interest under Health and Safety code section 25249.7(d) be
submitted to the court upon noticed motion, and that the court may approve the settlement only if
it finds that any warning required by the settlement complies with the law, that any attorney‟s
fees are reasonable, and that any civil penalty is reasonable. The plaintiff bears the burden of
producing evidence necessary to sustain those findings. The statute also require that the plaintiff
“serve the motion and all supporting papers on the Attorney General, who may appear and
participate in any proceeding without intervening in the case.” (Health and Safety Code §
25249.7(f)(4).)

         The Attorney General has received a number of informal inquiries concerning the
Attorney General‟s views about the type of information necessary to make the showings required
by the new legislation. Ultimately, these decisions will be made by the court to which the
settlement is submitted. The Attorney General, however, is served with all moving papers in
support of the motion for approval, and expects to participate in a number of proceedings. The
Attorney General has concluded that non-binding guidelines will assist the public by reducing
litigation concerning the meaning of the new law and by enabling parties to follow the
guidelines, thereby reducing the likelihood that the Attorney General will object to their
settlement. The guidelines also will assist courts in reviewing settlements, particularly where a
given court has not reviewed significant numbers of settlements in these cases. Even though the
Settlement Guidelines portion of this rulemaking is non-binding, it must be adopted through an
APA rulemaking process because it will affect the Attorney General‟s policies, apply generally
throughout the state, and involves a matter of serious consequence involving an important public
interest. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal4th 557; Grier v. Kizer
(198 ) 219 Cal.App.3d 422.)

       Although the Attorney General is not the Governor‟s designated “lead agency” for
implementation of Proposition 65, he is the official designated under SB 471 to review all
settlements, and authorized to appear in settlement approval proceedings. Accordingly, he is the
appropriate official to adopt Settlement Guidelines.
C.     Summary of Proposed Regulation

        The Proposed Regulation has three primary parts. First, it makes some changes to the
existing reporting requirements. The existing requirements were written before the law required



                                                 3
that settlements in Proposition 65 Private Enforcement Matters be approved by courts on noticed
motion, and the timing and nature of the required submissions needed to be modified to fit that
process. In addition, since other actions in which Proposition 65 violations are alleged have been
added to the existing reporting requirements, changes needed to be made in the regulation to so
state.

        Second, it adopts binding requirements for the Certificate of Merit. These requirements
set forth the form and content of the required certification, define the specific scope of the
certification, and also identify the type of supporting documentation that is necessary.

        Third, it adopts guidelines to be used by the Attorney General, parties to litigation, and
courts, in crafting and reviewing Proposition 65 settlements. These guidelines cover issues such
as penalties, the form and content of clear and reasonable warnings, and evaluation of attorney‟s
fee awards.




                                                4
                              AUTHORITY AND REFERENCE

        The Department of Justice proposes to amend the regulations contained in sections 3000
through 3008 of Title 11 of the California Code of Regulations, and proposes to adopt sections
3100 through 3204 of Title 11 of the California Code of Regulations, pursuant to the authority
granted in Health and Safety Code sections 25249.7(e) and (f). The statute being implemented,
interpreted and made specific is Chapter 578, Statutes of 2001, amending Health and Safety
Code sections 25249.7(e) and (f).

       DISCLOSURES AND DETERMINATIONS REGARDING THE REGULATIONS

        1. Regulations Mandated by Federal Law (Government Code § 11346.2(c).): This
regulation is not mandated by federal law or regulations.

        2. Other Statutory Requirements (Government Code § 11346.5(a)(4)): There are no other
statutory requirements specific to this agency or type of regulation.

       3. Local Mandate Determination (Government Code § 11346.5(a)(5)): These regulations
would not impose a mandate on local agencies or school districts, nor are there any costs for
which reimbursement is required by Part 7 (commencing with Section17500) of Division 4 of the
Government Code.

       4. Fiscal Impact (Government Code § 11345.5(a)(6)):

       a. There are no costs to any local agency or school district for which Government Code
sections 17500-17360 require reimbursement.

       b. There are no other non-discretionary costs or savings that would be imposed on local
agencies.

        c. There are uncertain costs to the Attorney General for implementing the new law,
which will be absorbed during the 2001-2002 fiscal year. There are no other costs to any other
state agency.

       d. There are no costs or savings in federal funding to the state.

        5. Effect on Housing costs (Government Code § 11346.5(a)(12): There is no significant
effect on housing costs.

       6. Significant Statewide Adverse Economic Impact Directly Affecting Business,
Including Ability to Compete (Government Code §§ 11346.3(a), 11346.5(a)(7), 11346.5(a)(8):
The Department of Justice has initially determined that there will be no such impacts.

      7. Assessment Regarding Effect on Jobs/Businesses (Government Code §
11346.5(a)(10):



                                                5
        (a) The creation or elimination of jobs within the State of California: None.

        (b) The creation of new businesses or the elimination of existing businesses within the
State of California: None.

        (c) The expansion of businesses currently doing business within the State of California:
None.

        8. Cost Impacts on Representative Person or Business (Government Code §
11346.5(a)(9)): The proposed regulations affect private persons who bring certain civil actions in
the public interest. The cost of filing certain documents with the Attorney General and filling out
a form concerning those documents should be minor. Costs associated with the filing and
support of a motion for approval of settlements with the court may be greater, but are mandated
by the statute, not by this regulation. The costs associated with filing a motion for judicial
approval of a settlement could be $1,500 (based on 15 hours of attorney time at $100 per hour),
but the filing of the motion is mandated by the statute.

       9. Effect on Small Business: Pursuant to 1 CCR section 4, DOJ has determined that this
proposed regulation affects small business. Accordingly:

                (A) A concise plain English policy statement overview regarding the proposed
regulation that explains the broad objectives of the proposed regulation is included in this notice;

              (B) The express terms of the proposed action written in plain English are available
from the agency contact person named in this notice.

        10. Alternatives considered (Government Code § 11346.5(a)(14): DOJ must determine
that no reasonable alternative considered by DOJ would be more effective in carrying out the
purpose for which the action is proposed or would be as effective and less burdensome to
affected private persons than the proposed action.

        11. Availability of Statement of Reasons, Express Terms, and Information: DOJ has
prepared an initial statement of reasons for the proposed action, has available all the information
upon which the proposal is based (the rulemaking file), and has available the express terms of the
proposed action. The rulemaking file for this proposed regulatory action will be maintained at the
Office of the Attorney General, 1515 Clay Street, 20th Floor, and is available for public review
during the Office of the Attorney General's normal business hours (Monday through Friday, 8:30
a.m. to 5:00 p.m.). Requests to review the rulemaking file should be directed to the agency
contact person named in this notice. When the rulemaking is completed, a Final Statement of
Reasons for the proposed action will be completed, and it will be available, along with all of the
other information described above, at the same address.

      12. Availability of changes to text: The full text of a regulation changed pursuant to
Government Code section 11346.8 will be available for at least 15 days prior to the date on



                                                 6
which the agency adopts, amends, or repeals the resulting regulation.

        13. Internet Access (Government Code §§ 11346.4(a)(6), 11346.5(a)(20): The text of the
Proposed Regulation and this statement may be accessed at the Attorney General‟s Website,
doj.ca.gov.




                                               7
                          TITLE 11-DEPARTMENT OF JUSTICE
                  DIVISION 4-PROPOSITION 65 PRIVATE ENFORCEMENT

                                             CHAPTER 1


       § 3000. Authority. This chapter sets forth procedures necessary to comply with Health

and Safety Code section 25249.7(e) and (f) as amended by Ch.599, statutes of 1999.and Chapter

578, statutes of 2001. Any person proceeding "in the public interest" pursuant to Health and

Safety Code §section 25249.7(d) or bringing any other action (hereinafter "Private Enforcer"),

who alleges the existence of violations of the Safe Drinking Water and Toxic Enforcement Act

of 1986 (Health and Safety Code sections§§ 25249.5 or 25249.6) (hereinafter “Proposition 65"),

shall comply with the requirements of this chapter.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3001. Definitions.

       (a) “Subject to a settlement” means that a written settlement agreement has been signed

by the private enforcer and the alleged violator, or an oral agreement has been stated on the

record in court in such manner as to render the agreement enforceable pursuant to Code of Civil

Procedure section 664.6, even if the settlement is contingent on the entry of a judgment pursuant

to stipulation or other judicial approval.

       (b) “Subject to a judgment,” other than a judgment pursuant to a settlement, means that

the court has entered an order entitling a party to entry of judgment (e.g., order granting a motion

for summary judgment, order sustaining demurrer), regardless of whether the actual form of

judgment has yet been prepared, approved, or filed.

       (c) “Private Enforcement Matter,” means any complaint filed by a Private Enforcer in

court in which a violation of Proposition 65 is alleged and the Private Enforcer is proceeding

pursuant to Health and Safety Code section 25249.7(d).
       (d) “Other Private Action” means a complaint filed by a Private Enforcer in which a

violation of Proposition 65 is alleged, but the plaintiff is not proceeding pursuant to Health and



                                                 1
Safety Code section 25249.7(d).

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3002. Complaints. A Private Enforcer who commences a Private Enforcement Matter

or an Other Private Action shall serve a file-endorsed copy of the complaint, and a completed

version of the Report of Civil Complaint Filing form attached as Appendix A to these

regulations, upon the Attorney General within five days after filing the complaint with the court.

Any amended complaint shall be served upon the Attorney General within five days after filing
with the court along with an updated version of the Report of Civil Complaint Filing.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3003. Settlements. A Private Enforcer who agrees to a settlement of a Private

Enforcement Matter or an Other Private Action shall serve the settlement upon the Attorney

General within two five working days after the action is subject to a settlement, or concurrently

with the motion for judicial approval of a settlement, whichever is sooner.

        (a) When a Private Enforcer in a Private Enforcement Matter files a motion for judicial

approval of a settlement pursuant to Health and Safety Code section 25249.7(d)(4), it shall serve

the Attorney General with the motion and all supporting papers and exhibits no later than forty-

five days prior to the date of the hearing of the motion. If court rules or other applicable orders

do not permit a forty-five day period, the Private Enforcer shall apply for permission to file the

motion with a forty-five day notice period. If the court denies the request in whole or in part, the

motion shall be noticed for the maximum time permitted by the court, and a copy of the

application seeking a forty-five day time period and the court‟s order shall be served on the

Attorney General with the motion for approval. The forty-five day period shall not apply in any

case in which the Attorney General is a plaintiff in consolidated or related matters with the
Private Enforcer and the settlement is a Consent Judgment entered into by the Attorney General

and the Private Enforcer. Where the settlement is submitted to a court for its approval, the



                                                 2
Private Enforcer shall notify the court in writing upon presentation of the settlement of its

submission to the Attorney General pursuant to this regulation. The submission to the Attorney

General shall contain the entire agreement between the parties. “Settlement” for these purposes

includes any partial settlement by which injunctive relief, whether permanent or preliminary, is

agreed upon, and also includes any agreement pursuant to which the case is dismissed, regardless

of the type of relief, if any, obtained in exchange for the dismissal . In such instances, Private

Enforcers shall comply with these requirements for each partial settlement and any final

settlement. The submission shall include all information set forth in the Report of Settlement
form attached as Appendix B. The Attorney General shall have thirty days after actual receipt to

review the settlement. During the thirty-day period, the settlement shall not be submitted to the

court, unless required by court order or rule or the Attorney General has stated in writing that he

does not object to entry of the settlement. The papers filed with the court shall advise the court

that the fact that the Attorney General does not object or otherwise respond to a settlement shall

not be construed as endorsement of or concurrence in any settlement.

       (b) When a Private Enforcer in an Other Private Action submits a settlement to a court

for its approval, the Private Enforcer shall notify the court in writing upon presentation of the

settlement of its submission to the Attorney General pursuant to this regulation. The submission

to the Attorney General shall contain the entire agreement between the parties. “Settlement” for

these purposes includes any partial settlement by which injunctive relief, whether permanent or

preliminary, is agreed upon, and also includes any agreement pursuant to which the case is

dismissed, regardless of the type of relief, if any, obtained in exchange for the dismissal . In such

instances, Private Enforcers shall comply with these requirements for each partial settlement and

any final settlement. The submission shall include all information set forth in the Report of

Settlement form attached as Appendix B. The Attorney General shall have thirty days after

actual receipt to review the settlement. During the thirty-day period, the settlement shall not be
submitted to the court, unless required by court order or rule or the Attorney General has stated in

writing that he does not object to entry of the settlement. The fact that the Attorney General does



                                                 3
not object or otherwise respond to a settlement shall not be construed as endorsement of or

concurrence in any settlement.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3004. Judgments. Within ten days after a case is subject to a judgment, a Private

Enforcer shall serve on the Attorney General a copy of any judgment or order entitling a party to

entry of judgment entered in a Private Enforcement Matter and a completed version of the Report

of Entry of Judgment form attached as Appendix C to this regulation. If the judgment does not
become final because a notice of appeal is filed, the Private Enforcer shall serve a copy of the

notice of appeal on the Attorney General within ten days after receipt. The Private Enforcer shall

serve on the Attorney General a copy of any decision of an appellate court concerning the validity

of the judgment within five working days after receipt.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3005. Electronic filing. All documents required to be filed pursuant to sections 3002,

3003, and 3004 shall be filed electronically, by submitting the forms and the documents on-line

to the Attorney General‟s website, unless the website states that electronic filing is not currently

available, or is not functioning for a twenty-four hour period when electronic filing is attempted.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3006. Manner of Service. When this chapter requires that any document or

information be provided to the Attorney General, unless the document is served electronically

pursuant to section 3005, service shall be in a manner prescribed by Code of Civil Procedure

section 1010-1020, except that any settlement shall be served by hand delivery or overnight mail

service. The envelope in which the document is transmitted shall state prominently "Proposition
65 Private Enforcement Matter." After receipt of the Complaint, the Attorney General may then

specify that future documents required by this chapter to be filed in that case be served upon a



                                                 4
particular office and deputy.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3007. OSHA matters. For matters in which violations with respect to occupational

exposures are alleged, compliance with the Director of the Division of Occupational Safety and

Health‟s Special Procedures for Supplementary Enforcement of State Plan Requirements

concerning Proposition 65, 8 Cal.Code Regs., § 338, as adopted on October 12, 2000, constitutes

compliance with these requirements, except for the filing of the Affidavit of Compliance required
by section 3008 and the requirements of section 3003(a). That regulation is set forth in Appendix

D to these regulations.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections

25249.7(e) and 25249.7(f), Health and Safety Code.

       § 3008. Affidavit of Compliance. At the time of filing of any judgment with the court, a

Private Enforcer shall file with the court a declaration or affidavit, meeting all applicable

requirements of the Code of Civil Procedure, verifying compliance with all requirements of this

chapter. This declaration or affidavit shall include:

       (a) Proper proof of service on the Attorney General of all documents required to be

served on the Attorney General by this regulation.

       (b) In an Other Private Action only, Iif the case is resolved by settlement, a statement that

at least thirty days have elapsed since service of the settlement on the Attorney General or that

fewer than thirty days have elapsed but the Attorney General has stated in writing that he does

not object to entry of the settlement. Any written response by the Attorney General to the

settlement shall be made an exhibit to the declaration or affidavit. The affidavit shall expressly

advise the court that pursuant to section 3003 of this regulation, the failure of the Attorney

General to comment on a settlement shall not be construed as endorsement of or concurrence in
the settlement.

Note: Authority cited: Section 25249.7(f), Health and Safety Code. Reference: Sections



                                                  5
25249.7(e) and 25249.7(f), Health and Safety Code.



                            CHAPTER 2-CERTIFICATES OF MERIT

§ 3100. General

       Any notice of alleged violations provided pursuant to Health and Safety Code section

25249.7(d) in which violations of Health and Safety Code section 25249.6 are alleged shall

include a Certificate of Merit. The Certificate of Merit shall be attached to, and be served with,

all copies of the notice of alleged violations. A second copy of the entire notice and Certificate
of Merit served on the Attorney General, clearly marked “Attorney General Copy: Contains

Official Information Pursuant to Evidence Code Section 1040" shall attach all supporting

documentation required by Section 3102. The Attorney General Copy is deemed Official

Information pursuant to Evidence Code section 1040.

Note: Authority cited: Health and Safety Code Section 25249.7(d), (h),(i). Reference: Health and

Safety Code Section 25249.7(d), (h), (i).

§ 3101. Contents.

       (a) Health and Safety Code section 25249.7(d)(1) requires that the certifier state that he

or she “has consulted with one or more persons with relevant and appropriate experience or

expertise who has reviewed facts, studies, or other data regarding the exposure to the listed

chemical that is the subject of the action, and that, based on that information, the person

executing the certificate believes there is a reasonable and meritorious case for the private

action.” “Reasonable and meritorious case for the private action” requires not only

documentation of exposure to a listed chemical, but a reasonable basis for concluding that the

entire action has merit. The certifier must have a basis to conclude that there is merit to each

element of the action on which the plaintiff will have the burden of proof. The certifier does not

need to have a basis to conclude that it will be able to negate all affirmative defenses, but must
certify that the information relied upon does not prove that any affirmative defense has merit.

       (b) The Certificate of Merit shall contain all of the following statements, and appear in



                                                 6
the following form:

                                     CERTIFICATE OF MERIT

                            Health and Safety Code Section 25249.7(d)

I, (name of certifier), hereby declare:

       1. This Certificate of Merit accompanies the attached sixty-day notice(s) in which it is

alleged the parties identified in the notices have violated Health and Safety Code section 25249.6

by failing to provide clear and reasonable warnings.

       2. I am the (noticing party/attorney for the noticing party).
       3. I have consulted with one or more persons with relevant and appropriate experience or

expertise who has reviewed facts, studies, or other data regarding the exposure to the listed

chemical that is the subject of the action.

       4. Based on the information obtained through those consultations, and on all other

information in my possession, I believe there is a reasonable and meritorious case for the private

action. I understand that “reasonable and meritorious case for the private action” means that the

information provides a credible basis that all elements of the plaintiffs‟ case can be established

and the information did not prove that the alleged violator will be able to establish any of the

affirmative defenses set forth in the statute.

       5. The copy of this Certificate of Merit served on the Attorney General attaches to it

factual information sufficient to establish the basis for this certificate, including the information

identified in Health and Safety Code section 25249.7(h)(2), i.e., (1) the identity of the persons

consulted with and relied on by the certifier, and (2) the facts, studies, or other data reviewed by

those persons.

                 Dated: ___________________                    ________________

                                                               (Signature)

§ 3102 Supporting documentation
       (a) The “Attorney General Copy” of the notice of violation and Certificate of Merit shall

physically attach the information set forth below. Supporting documentation shall be provided in



                                                  7
a legible and organized format, e.g., documentation shall be tabbed and identified. References to

studies or other information are not sufficient.

       (b) Identification of the person or persons with relevant and appropriate experience or

expertise shall include: (1) their full name and address; and (2) sufficient information concerning

their background, training and knowledge to establish that they possess the necessary experience

or expertise to render a competent opinion on the subject matter for which they have been

consulted.

       (c) The “facts, studies, or other data regarding the exposure to the listed chemical that is
the subject of the action” submitted shall support each violation alleged in the notice as follows:

       (1) For consumer product exposures, sufficient facts, studies, or other data shall be

submitted for each consumer product or service, or each specific type of consumer product or

service that cause the alleged violation as set forth in the notice;

       (2) For occupational exposures, sufficient facts, studies, or other data shall be submitted

for each occupational exposure set forth in the notice, whether described by location of the

employees, type of task performed, or product used by the employees;

       (3) For environmental exposures, sufficient facts, studies, or other data shall be submitted

for each location and source of exposure set forth in the notice.

§ 3103 Effect of Failure to Comply

       (a) Where a Sixty-day notice does not attach a copy of the Certificate of Merit meeting

the requirements of subsection 3101(b), the noticing party has no authority to commence an

action pursuant to Health and Safety Code section 25249.7(d).

       (b) The Attorney General may contact the noticing party orally or in writing concerning

the Certificate of Merit . If such communications include material from the supporting

documentation, then those the portion of the communications containing or specifically

describing the supporting documentation shall remain Official Information pursuant to Evidence
Code section 1040.

       (c) Where the Attorney General makes no response concerning a Certificate of Merit, no



                                                   8
inference shall be drawn from the lack of response concerning the adequacy of the Certificate or

supporting documentation.

Note: Authority cited: Health and Safety Code Section 25249.7(d), (h),(i). Reference: Health and

Safety Code Section 25249.7(d), (h), (i).

                           CHAPTER 3-SETTLEMENT GUIDELINES

§ 3200. Authority and Scope.

       This chapter contains the Attorney General‟s guidelines for review of settlements by

persons proceeding “in the public interest” pursuant to Health and Safety Code section
25249.7(f)(4). The provisions of this chapter are guidelines, which are not binding on litigants or

the courts, but provide the Attorney General‟s view as to the legality and appropriateness of

various types of settlement provisions, and the type of evidence sufficient for the private plaintiff

to sustain its burden of supporting the proposed settlement. This should assist the parties in

fashioning settlements to which the Attorney General is unlikely to object, and assist the courts

in determining whether to approve settlements.

§ 3201. Attorney‟s fees.

       Code of Civil Procedure section 1021.5 permits an award of attorney‟s fees to a

“successful party...in any action which has resulted in the enforcement of an important right

affecting the public interest if: (a) a significant benefit...has been conferred on the general public

or a large class of persons, (b) the necessity and financial burden of private enforcement...are

such as to make the award appropriate, and (c) such fees should not in the interest of justice be

paid out of the recovery, if any.” These guidelines are intended to be consistent with existing law

interpreting Code of Civil Procedure section 1021.5, but provide assistance to the litigants and

the court in applying them to issues commonly arising under Proposition 65.

       (a) Successful Party. The fact that a defendant changed its conduct prior to entry of a

court order or judgment does not preclude a finding that the plaintiff was successful. If the
plaintiffs‟ action was the cause or “catalyst” of the change in conduct, it may be deemed

successful.



                                                  9
       (b) Public Benefit. A settlement that provides for the giving of a clear and reasonable

warning, where there had been no warning provided prior to the sixty-day notice, for an exposure

that appears to require a warning, is presumed to confer a significant benefit on the public, or the

portion of the public exposed to a listed chemical. If there is no evidence of an exposure for

which a warning plausibly is required; there is no public benefit, even if a warning is given. If

the relief consists of minor or technical changes in the language, appearance, or location of a

warning in a manner that is not likely to increase its visibility or effectiveness in communicating

the warning to the exposed persons, there is no significant public benefit.
       (c) Necessity of Private Enforcement. To establish necessity of private enforcement, the

plaintiff should establish that its continued prosecution of the action was necessary to obtain the

relief in the settlement. For example, where a defendant proposed in writing to provide certain

relief, and the settlement or judgment does not provide any significant additional relief,

additional fees incurred after the time that the offer was rejected may not be reasonable or

necessary.

       (d) Reasonable Fees. Hourly fees should be those reasonable for attorney of similar skill

and experience in the relevant market area. Once a lodestar fee is a calculated, a multiplier of

that amount is not reasonable unless a showing is made that the case involved a substantial

investment of time and resources with a high risk of an adverse result, and obtained a substantial

public benefit. No fees should be awarded based on additional time spent in response to the

Attorney General‟s inquiries or participation in the case, unless specifically identified and

approved by the court.

       (e) Documentation. All attorney‟s fees should be justified by contemporaneously kept

records of actual time spent, which describe the nature of the work performed. Declarations

relying on memory or recreated, non-contemporaneously kept records may raise an issue

concerning the accuracy of the time estimate.
Note: Authority cited: Health and Safety Code Section 25249.7(f) (4), (5). Reference: Health and

Safety Code Section 25249.7(f) (4)(5).



                                                10
§ 3202. Clear and Reasonable Warnings.

       Health and Safety Code section 25249.7(f)(4)(A) requires that, in order to approve a

settlement, the court must find that “Any warning that is required by the settlement complies

with” the clear and reasonable warning requirement of Proposition 65. This guideline provides

additional information concerning the Attorney General‟s interpretation of the statute and

existing regulations governing clear and reasonable warnings. Nothing in this guideline shall be

construed to authorize any warning that does not comply with the statute and regulations, or to

preclude any warning that complies with the statute and regulations. This guideline is intended
to address some of the types of warnings commonly found in settlements, not to provide

comprehensive standards.

       (a) Supporting evidence. In order to sustain its burden of producing evidence sufficient to

support the conclusion that the warning is legal, the plaintiff should provide (1) the text and

appearance of the warning, along with a sufficient description of where the warning will appear

in order to ascertain whether the warning will be “reasonably conspicuous” under the

circumstances of purchase or use of the product; and (2) sufficient proof that the product causes

exposure to a listed chemical to enable a finding that the warning would be truthful.

       (b) Warning language. Where the settling parties agree to language other than the “safe

harbor” language set forth in the governing regulations (22 CCR § 12601(b)) the warning

language should be analyzed to determine whether it is clear and reasonable. Certain phrases or

statements in warnings are not clear and reasonable, such as (1) use of the adverb “may” to

modify whether the chemical causes cancer or reproductive toxicity (as distinguished from use of

“may” to modify whether the product itself causes cancer or reproductive toxicity); (2) additional

words or phrases that contradict or obfuscate otherwise acceptable warning language. Certain

other deviations from the safe-harbor warnings are generally clear and reasonable, such as (1)

Using the language “Using this product will expose you to a chemical...” in lieu of “This product
contains a chemical...”; or (2) deleting the reference to “the state of California” from the safe-

harbor language.



                                                11
          (c) Premises warnings for environmental tobacco smoke. A number of cases involve

provision of warnings due to exposure to environmental tobacco smoke caused by entry of

persons (other than employees) on premises where smoking is permitted at any location on the

premises.

                 1. Location of signs. (A) For hotels or apartment buildings in which entry to

guest rooms or apartments is on an enclosed hallway and there is a common ventilation system,

the sign should be posted at main and subsidiary entrances to the building (including any

entrance from a parking structure), and at the registration counter or administrative office open to
the public or guests. (B) For hotels or apartment complexes in which entry to guest rooms or

apartments is to areas open to ambient air; signs should be posted at a kiosk or gate where cars

drive in, if any, and at the registration counter or other administrative office open to the public or

guests.

                 2. Language of Signs. The following language is appropriate and legally

sufficient:

“WARNING: This facility allows smoking in some areas. Tobacco smoke, and many of the

chemicals in it, are known to the state of California to cause cancer, and birth defects or other

reproductive harm. [Optional: Smoking is permitted only in the following areas of this facility:

(identify areas, e.g., “swimming pool area,” “foyers,” “designated guest rooms,” “outdoor

patios.”]”

                 3. Successful parties. The plaintiff is not successful and has not conferred a

substantial public benefit if the defendant had posted signs substantially complying with

subparagraphs (1) and (2); and the only additional relief obtained is the posting of additional

signs in guest rooms or in hallways that lead to guest rooms in which smoking is permitted.

          (d) Environmental Exposure Warnings. In determining whether environmental exposure

warnings comply with the law, the parties should consider 22 CCR section 12601(d)(2), which
requires, among other things, that the warning “be provided in a conspicuous manner and under

such conditions as to make it likely to be read, seen or heard and understood by an ordinary



                                                 12
individual in the course of normal daily activity, and reasonably associated with the location and

source of the exposure.” 22 CCR section 12601(d)(1) also requires that such warnings “target

the affected area.” Settlements meeting these requirements should:

       (1) include a warning other than signs posted at the facility, wherever the area for which

the exposure occurs at a level requiring a warning extends beyond the boundaries of the facility

to an area of persons who do not actually enter or walk by the facility.

       (2) Use hand-delivered or mail-delivered notices rather than media advertisements unless

the area of persons to be warned is so large as to make such delivery substantially more
expensive than media advertisements;

       (3) If newspaper notices are used, they should appear in the main news section of the

newspaper with the largest circulation in the area for which a warning is given, be at least 1/4

page in size, and contain a graphic depiction of the location of the facility for which the warning

is given and the area for which the warning is given.

Note: Authority cited: Health and Safety Code Section 25249.7(f) (4), (5). Reference: Health and

Safety Code Section 25249.7(f) (4)(5).

§ 3203 Reasonable Civil Penalty.

       Penalties will be evaluated based on the factors set forth in the Health and Safety Code

section 25249.7(b)(2). The following factors are “[other factors] which justice may require” to

be considered within the meaning of Health and Safety Code section 25249.7(b)(2)(G):

       (a) A settlement with little or no penalty may be entirely appropriate. Civil penalties,

however (75% of which must be provided to the Department of Toxic Substances Control)

should not be “traded” for payments of attorney‟s fees.

       (b) Where a settlement provides additional payments to an entity in lieu of a civil penalty

(including, for example, funds for environmental activities, public education programs, and funds

to the plaintiff for additional enforcement of Proposition 65 or other laws), such payments may
be a proper “offset” to the penalty amount or cy pres remedy, but are only proper if the following

requirements are met:



                                                13
               (1) The funded activities have a nexus to the basis for the litigation, i.e., the funds

should address the same public harm as that allegedly caused by the defendant(s) in the particular

case.

               (2) The recipient should be a non-profit, governmental organization or court

supervised entity that is accountable, i.e., is able to demonstrate how the funds will be spent and

can assure that the funds are being spent for the proper, designated purpose.

               (3) the method of selection of a recipient of settlement funds must be set forth in

the settlement agreement or in a separate public document referenced in the agreement. The
selection procedure may vary depending on the facts of the particular case, but must give

significant weight to a prospective grantee‟s ability to perform the funded task and its reliability

and accountability.

        (c) Where a settlement provides that certain penalties are assessed, but may be waived in

exchange for certain conduct by the defendant, the necessary actions must be related to the

purposes of the litigation, provide environmental and public health benefits, and provide a clear

mechanism for verification that the qualifying conditions have been satisfied.

Note: Authority cited: Health and Safety Code Section 25249.7(4) (4), (5). Reference: Health

and Safety Code Section 25249.7(f) (4)(5); 25249.7(b)(2).

§ 3204 Other provisions.

        Certain other provisions of a settlement may either be unlawful or contrary to public

policy, and could provide the basis for an objection by the Attorney General.

        (a) Releases or other language describing the intended scope of claims resolved or barred

by the settlement shall not purport to:

        (1) Be on behalf of the People of the State of California. Appropriate language is that the

plaintiffs “suing „in the public interest‟ pursuant to Health and Safety Code section 25249.7(d)”

and “suing „in the interest of...the general public‟ pursuant to Business and Professions Code
section 17204" (whichever applies to the action);

        (2) Release or resolve any claim by individuals with personal injuries, unless those claims



                                                14
were properly raised in the complaint;

        (3) Release or resolve any claim concerning listed chemicals that are not present in the

product at the time of entry of judgment, or any claim concerning chemicals that are not on the

list of chemicals known to the state to cause cancer or reproductive toxicity, but may become

listed in the future;

        (4) Release or resolve any claim concerning chemicals or exposures not set forth in the

sixty-day notice of violation;

        (5) Immunize any defendant from any duty caused by a change in law, or to impose a duty
that is removed by a change in law.

Note: Authority cited: Health and Safety Code Section 25249.7(f) (4), (5). Reference: Health and

Safety Code Section 25249.7(f) (4)(5).




                                               15
                         INITIAL STATEMENT OF REASONS
                 DIVISION 4-PROPOSITION 65 PRIVATE ENFORCEMENT

                                REVISION OF CHAPTER 1
                           ADOPTION OF CHAPTERS 2 AND 3
                     TITLE 11, CALIFORNIA CODE OF REGULATIONS

A.     Summary of Legislation

       The legislation being implemented, SB 471, is set forth and described in the Informative
Digest/Plain English Policy Statement Overview above.

B.     Section-by-Section Analysis

       1.      Chapter 1 Reporting Requirements

       a.      Section 3000: Authority

        SB 471 also expanded the existing duty to notify the Attorney General of the filing and
settlement of any action brought pursuant to Health and Safety Code section 25249.7(d) to
include a duty to report the filing and settlement of any action in which violations of Proposition
65 are alleged, e.g., actions under Business and Professions Code section 17200 in which the
predicate unlawful conduct is a violation of Proposition 65. SB 471 specifically states that it did
not change existing law concerning whether other types of actions in which violations of
Proposition 65 are alleged are proper, and this regulation also does not do so.

       b.      Section 3001: Definitions

        Because the reporting requirement now covers private actions not brought under
Proposition 65, but in which violations of Proposition 65 are alleged, but such actions are not
covered by the new requirement of a motion for judicial approval, the requirements for the two
types of cases are not the same. Accordingly, a definition of “Other Private Action,” has been
added to use where necessary.

       c.      Section 3003: Settlements

        The existing regulation provides that any settlement must be submitted to the Attorney
General thirty days before it is submitted to the court. Since submission of settlements by
noticed motion, with evidence sufficient to support certain required findings, was not required by
the statute when the regulation was adopted, the regulation does not provide any timing for the
submission of those materials to the Attorney General. Thus, under the existing regulation, the
Attorney General would receive the settlement thirty days in advance of submission of the
motion to the court, but might receive a relatively short time to review the supporting materials.
Those materials may be key to determining whether the Attorney General objects to the
settlement.



                                                1
        Since the Attorney General may not comment on a settlement in every instance, the
regulation requires the Private Enforcer to advise the court that the lack of a response by the
Attorney General does not constitute an endorsement of the settlement.

        Accordingly, the proposed regulation dispenses with the requirement of submitting the
settlement to the Attorney General thirty days before submission to the court, and replaces it with
a provision that the settlement and all materials supporting the motion for approval of the
settlement be submitted to the Attorney General forty-five days before the hearing. This should
provide the Attorney General with sufficient time to conduct the proper review.

       “Other Private Actions,” i.e., however, are not subject to the motion for approval
requirement, and therefore are subject only to the thirty-day review period that existed for
Proposition 65 settlements under prior law.

       d.      Section 3007: OSHA Matters

        The emergency regulation makes a change to section 3007, which governs Proposition 65
cases concerning occupational exposures within the purview of the Division of Occupational
Safety and Health (“Cal/OSHA”), in its implementation of the State Plan for Occupational Safety
and Health as approved by the U.S. Occupational Safety and Health Administration. Cal/OSHA
has its own regulation establishing reporting requirements for those cases, 8 Cal.Code Regs., §
338, as adopted on October 12, 2000. Compliance with those requirements had been deemed
adequate to constitute compliance with the provisions of the prior regulation. Since adoption of
SB 471 imposed new requirements, however, compliance with the Cal/OSHA regulation no
longer is sufficient. Accordingly, the emergency regulation provides that Private Enforcers must
comply with the existing regulation, and the new statute. This does not affect or change
Cal/OSHA‟s regulation in any way.

       e.      Section 3008: Affidavit of Compliance

        Since Private Enforcement Matters are no longer subject to the thirty-day review period
prior to submission of a settlement to the court, but Other Private actions are now subject to that
requirement, the contents of the Affidavit of Compliance have been modified accordingly.

       2.      Chapter 2: Certificates of Merit

       a.      Section 3100: General

        This section points out that all sixty-day notices alleging violations of the “warning”
provision of the statute must include a Certificate of Merit. The statute requires that the notice
attach specified documentation, which shall be treated as official information pursuant to
Evidence Code section 1040. The remaining parts of the sixty-day notice, including the
Certificate of Merit itself, are public information, however, and frequently are requested by
members of the public under the Public Records Act. In order to easily respond to those



                                                 2
requests, and minimize the possibility of an inadvertent disclosure of privileged information, this
section would require that the noticing party provide a “public” copy and an “Attorney General”
copy, the latter of which would include the privileged material.

       b.      Section 3101: Contents

        The statute states that the certifier must believe, and have factual support for its belief,
that “there is a reasonable and meritorious case for the private action.” Even though sanctions at
the termination of an action are limited to those situations in which the court finds that there was
no credible evidence of an exposure (§ 25249.7(h)(2)), the face of the certification requirement is
significantly more broad, requiring a belief that there “is a reasonable and meritorious case for
the private action.” (§ 25249.7(d)(1)) To hold such a belief as to the entire action, the certifier
must have some information concerning other elements required to prevail in the action:
knowledge and intent, failure to warn, and that the alleged violator is a business with ten or more
employees, i.e., each issue on which the plaintiff would bear the burden of proof.

        At the same time, the issue of whether the exposure poses “no significant risk” (for
carcinogens) or is less than one one-thousandth of the no observable effect level (for reproductive
toxins) is clearly an affirmative defense, and the plaintiff is not required to produce any evidence
on this issue in order to proceed with the matter. (See Consumer Cause, Inc., v. Smilecare
(2001) 92 Cal.App.4th 454.) SB 471 was not intended to, nor did it in fact, change the statutory
burden of proof on any issue. Thus, the regulation would not require the certifier to state, or
support, a conclusion that affirmative defenses could be negated. All would agree that we cannot
extend this provision to the point of requiring the noticing party to negate affirmative defenses
such as no significant risk, because this would shift the burden of proof provided under the
statute. In some situations, however, the noticing party may have discovered information during
the course of its investigation that proves that the defendant, in fact, will be able to prove an
affirmative defense (e.g., no significant risk). While the noticing party has no legal duty to seek
such information, if it obtains such information, the certifier can no longer state a reasonable
belief that the “action” is “meritorious.” Thus, the section requires that the certifier state that the
information collected does not “prove that the alleged violator will be able to establish any of the
affirmative defenses set forth in the statute.”

       The section also requires that the certificate recite the fact that the appropriate persons
were consulted, and that the supporting documentation has been provided to the Attorney
General.

       c.      Section 3102: Supporting Documentation

       In the small number of Certificates of Merit submitted to date, the form and content of the
supporting information has varied widely. Standardizing the requirement will help assure that
the proper information is provided, and that it is provided in a manner that eases review by the
Attorney General.

       This section would require that the information be physically attached to the Certificate of



                                                  3
Merit in a legible, organized format. It would provide that citations to studies are not sufficient.

        With respect to the experts consulted, it would require a description of the experts
sufficient to demonstrate their competency.

        Finally it would specify that the supporting documentation must be as specific as the
types of exposures alleged. For example, if a number of different consumer product exposures
are alleged, then the documentation must support the certifier‟s belief with respect to each
product identified in the notice. The section contains similar provisions for occupational and
environmental exposures.

       d.      Section 3103: Effect of Failure to Comply

        The only specific sanction under the law for inadequate certification is by the court at the
conclusion of the case. (§ 25249.7(h)(2).) Since the statute specifically requires that each sixty-
day notice to which it applies must include the certificate, and the regulatory requirements are
binding, the regulation states that, in the absence of a proper Certificate of Merit, the noticing
party has no authority to commence an action under Proposition 65. (It would appear that a
demurrer or motion to strike would be appropriate if a complaint were filed under such
circumstances.)

         In addition, the statute does not specifically address any action the Attorney General may
take where he concludes that a Certificate of Merit or the supporting documentation are
inadequate. Certainly, the statute does not grant the Attorney General authority to prohibit the
noticing party from filing a complaint. The Attorney General may, however, indicate orally or in
writing his view of the adequacy of the Certificate or supporting documentation. Of course, in so
doing, the Attorney General may not disclose information made privileged by the law. So long
as no such information is disclosed, however, the Attorney General may choose to send a public
letter advising the noticing party and alleged violators of his conclusions, for their use in
determining how to proceed. Where the Attorney General does not provide any comment, this
should not be interpreted as a comment on the validity of the Certificate of Merit.




                                                 4
       3.      Chapter 3: Settlement Guidelines

       Under SB 471, settlements must be submitted to the court by noticed motion, and may be
approved only if the court makes the following findings:

       (A)     Any warning that is required by the settlement complies with this chapter.

       (B)     Any award of attorney‟s fees is reasonable under California law.

       (C)     Any penalty amount is reasonable based on the criteria set forth [in the penalty
               provision].

The plaintiff must produce the evidence necessary to sustain the findings. The penalty provision
now includes seven specific factors, plus an eighth “anything that justice requires” provision.
The Attorney General is permitted to appear in the case without intervening, and all of the papers
must be served on him. Again, these are non-binding guidelines, intended to assist courts and
parties in fashioning settlements that comply with the law, and identifying settlement provisions
that may draw an objection from the Attorney General.

       a.      Section 3200: Authority and Scope

       This section would clearly state that the Settlement Guidelines are not intended to be
binding, but only to provide guidance in fashioning and reviewing settlements.

       b.      Section 3201: Attorney‟s Fees

        This section specifies certain principles that are consistent with current law under Code of
Civil Procedure section 1021.5:

•                    Cases that accomplish only a trivial change in the existing wording of a
               warning have not conferred a substantial public benefit.

•                     The defendant‟s offers to cure the violation at an early stage must be
               considered in determining whether all of the fees are justified if the plaintiff does
               not accomplish more than was originally offered.

•                    Fees should be justified by contemporaneously kept time records. Other
               methods of proving attorney time may leave questions as to their accuracy.

•                      Multipliers are justified only in extraordinary cases.

       In addition, we would propose that the additional time spent responding to the Attorney
General‟s inquiries should not ordinarily be recoverable, unless specifically allowed by the court.
Many settlements simply specify the amount of attorney‟s fees, so judicial approval of the
settlement would not result in any additional award. Some settlements, however, provide that the



                                                 5
defendant must pay any additional fees incurred in responding to our inquiries about settlements.
It is appropriate that, in every case, the defendant should bear the burden of additional costs
incurred due to the Attorney General‟s inquiries. While case law under Code of Civil Procedure
section 1021.5 allows for the collection for “fees on fees,” i.e., compensation for time spent
preparing a fee application, those expenses are caused by the defendant‟s opposition to the
plaintiff‟s fee application. In this instance, the defendant has agreed to the settlement, and is not
the cause of the greater expenses. In particular, where the Attorney General‟s participation
results in changes to a settlement or judicial disapproval, it would be inappropriate for the
defendant automatically to pay. Thus, the guideline provides that such fees should be awarded
only if the court determines it is appropriate.

        c.      Section 3202: Clear and Reasonable Warnings

         This section does not supersede or alter in any way the existing and legally valid
regulations adopted by the Office of Environmental Health Hazard Assessment. Nonetheless, it
provides certain additional guidance concerning the application of those regulations to particular
fact situations. The section does the following:

•               Identifies wording deviations from the approved “safe harbor” warning language
        that the Attorney General considers acceptable.

•               Provides model environmental tobacco smoke warnings for hotels and apartments.

•              Provides specific guidance concerning newspaper warnings for facilities warning
        residents of the surrounding community.

•               Identifies certain words and phrases that should not appear in warnings.

The provision will help parties, whether in litigation or attempting to comply in advance of
litigation, to provide appropriate warnings.

        d.      Section 3203: Reasonable Civil Penalty

        This section does not give greater specificity to the specific factors set forth in the statute.
        It does, however, view “cy pres restitution” as effectively a payment in lieu of penalties,
which should be reviewed by the court. This type of recovery has been abused by some private
plaintiffs, who have traded penalties for cy pres funds, and then spent them in unrelated,
unaccountable ways. These guidelines are similar to those adopted by the Attorney General for
use in his own settlements in a publicly-available document, Management Bulletin No. 01-05,
April 11, 2001, a copy of which is attached and incorporated by reference. Under this policy,
payments should be related to the purpose of the law, be given to publicly accountable
organizations, and be subject to an appropriate selection procedure.

        e.      Section 3204: Other Provisions




                                                   6
       Even prior to SB 471, settlements in any case were subject to disapproval by a court if
they contained provisions contrary to law or public policy. (California State Auto. Assn. Inter-
Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 664; Mary R. v. B & R Corp. (1983) 149
Cal.App.3d 308, 316-317.)

        Accordingly, the proposed guidelines address one area that has been a problem in a large
number of settlements, i.e., the inclusion of language purporting to “release” claims that the
private plaintiff has no authority to release. These include claims on behalf of the People of the
State, claims about chemicals not subject to the statute, personal injury claims, or claims affected
by future changes in the law.

        The Attorney General invites comment on any other items that should be included in this
section of the guidelines.




                                                 7