Consumer, public health advocates say no

By James C. Sturdevant

Sturdevant

Proposition 64 would eliminate all private prosecutions under California’s Business & Professions Code §17200 (the Unfair Competition Law (UCL)) and §17500 (the False Advertising Act (FAA)). The initiative imposes three rigid, conjunctive requirements before any equitable relief can be issued. The plaintiff must allege and prove that she has been harmed by the defendant, has lost money or property, and is a suitable class plaintiff and establish that the case is appropriate for class action treatment. All three are difficult to achieve.

On Sept. 5, the proponents began running ads for Proposition 64 in many televisions markets statewide. Through Sept. 17, they have raised more than $13.2 million and spent $3 million on signatures. They have already reserved $8 million in air time. In early August, Gov. Schwarzenegger publicly committed to numerous major environmental groups in California that he would seek a legislative solution to the proposition and solve the problem in Sacramento by the end of August. He failed and refused to honor that commitment, instead following the lead of the Chamber of Commerce, the car dealers and the largest corporations in America who urged him to support the proposition.

On Sept. 10, the governor issued a press release embracing Proposition 64: “Proposition 64 will stop the legal practice of shakedown lawsuits, in which private lawyers file suits without any client or any evidence of harm. This turns lawyers into bounty hunters, stalking innocent small businesses that create jobs and opportunity in California.”

Proposition 64 is aimed at plaintiffs’ attorneys throughout California, and indeed throughout the nation. It seeks to sharply reduce corporate accountability and to eliminate two of California’s most important consumer protection statutes. For more than 70 years, individuals and organizations have effectively used these statutes to protect Californians from significant environmental and public health damage before individuals were killed or seriously injured as a result of unlawful conduct or sale and distribution of dangerous products.

Without §17200, important cases that have resulted in environmental clean-up could not have been brought: Oil companies were sued for polluting drinking water in communities throughout California with MTBE. Environmental group Baykeeper forced Dow Chemical to clean up contamination caused by a toxic plume. Crystal Geyser was ordered to remove dangerous levels of arsenic from its bottled waters.

The Consumer Attorneys of California, together with its coalition partners in the environmental, public health and privacy fields, have banded together to defeat this disastrous initiative, which would imperil the environmental health and safety of millions of Californians, particularly young children and the elderly.

In less than a year, Gov. Schwarzenegger has established a track record of success where his predecessors failed for more than 16 years. He has succeeded in effectively obliterating California’s workers’ comp system with the threat of an initiative that would have forced all employment discrimination and harassment lawsuits into the workers’ comp system; imposed caps on attorneys’ fees in connection with any punitive damages award, and allocated 75 percent of any punitive damages award to the state; proposed a cap on governmental liability in all actions against the state, as well as a sharp amendment to joint and several liability; endorsed Proposition 64, discussed above; opposed Proposition 72, a referendum to ensure health care protection for California’s employees; vetoed a bill which is designed to deter the denial of access to physically handicapped individuals by increasing the fine; and vetoed the recently passed increases to the minimum wage in California.

At each and every opportunity, California’s new governor has acted to eliminate rights and remedies for workers, consumers and anyone injured by businesses that deal with them. He has done all this under the mantra of protecting business and opposing any measure which, in his view, would eliminate jobs or detract from the creation of jobs. The quality of the jobs existing or to be created is not an issue in his view; thus, his goal must be seen as maintaining the types of jobs that the Bush Administration has been credited with creating or maintaining — minimum wage jobs at companies like McDonalds. Proposition 64 is just one effort of many to chip away at California’s civil justice system and the array of protections it affords to consumers and employees.

The defeat of Proposition 64 is in everyone’s interest, except the largest multinational corporations who seek to avoid responsibility for practices and conduct that jeopardize the lives and safety of everyone in this state. That’s why Proposition 64 is opposed by the following groups, among others: American Lung Association of California, California Nurses Association, AARP, Sierra Club California, California League of Conservation Voters, Consumers Union, and Natural Resources Defense Council.

• San Francisco lawyer James A. Sturdevant is president of the Consumer Attorneys of California.