Facts

Peter Englander filed a representative action against Bexco Enterprises Inc. and J.C. Penney Corp. Inc. on behalf of the citizens of the state of California. The lawsuit was based on a finding that Bexco furniture contained tris(1,3-dichloro-2-propyl) phosphate, also known as TDCPP, and tris(2-chloroethyl) phosphate, or TCEP. Both chemicals are listed on the Proposition 65 list of chemicals known to cause cancer. In accordance with the proposition, businesses are required to provide "clear and reasonable warning" of products containing TDCPP and/or TCEP.

The chemicals are used to treat polyurethane foam, which is used as padding or cushioning in upholstered furniture.

PLAINTIFF'S CONTENTIONS:
Englander argued that the defendants hadn't warned its consumers and other individuals in California about the health hazards associated with TDCPP and TCEP, as well as of the presence of both chemicals in its products. The defendants did so in violation of Proposition 65, a law requiring clear and reasonable warning of exposure to chemicals known to cause cancer.

Result

Englander and J.C. Penney settled. J.C. Penney agreed to stop manufacturing and selling products with more than 25 parts per million of TDCPP or TCEP. J.C. Penney also agreed to warn consumers of the presence of either chemical. In addition, J.C. Penney would pay $10,000 in initial penalties. J.C. Penney also agreed to $24,000 in second payment, and $14,000 in third payment, for which J.C. Penney may obtain partial penalty waivers if plaintiff receives certification of certain efforts made to reformulate the products, or limit the sale of the non-reformulated products in the state. J.C. Penney also agreed to pay $30,000 as reimbursement for the plaintiffs' attorney fees and costs.

Other Information

FILING DATE: July 22, 2013.