Preview
w
w
Clifford A. Chanler, State Bar No. 135534
Laralei S. Paras, State Bar No. 203319
THE CHANLER GROUP
2560 Ninth Street ELECTRONICALLY
Parker Plaza, Suite 214 FILED
Berkeley, CA 94710 Superior Court of California,
Telephone: (510) 848-8880 eu of see anetece
Facsimile: (510) 848-8118 08/31/2018
clifford@chanler.com Clerk of the Court
laralei@chanler.com epee a
Attorneys for Plaintiff
ANTHONY HELD, Ph.D, P.E.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ANTHONY E. HELD, PH.D., P.E., Case No. CGC-18-566691
Plaintiff, DECLARATION OF LARALEIS.
PARAS IN SUPPORT OF MOTION TO
v. APPROVE PROPOSITION 65
SETTLEMENT AND CONSENT
TRACTOR SUPPLY COMPANY; et al., JUDGMENT
Defendants. Date: October 22, 2018
. Time: 9:30 a.m.
Dept.: 302
Judge: — Hon. Harold E. Kahn
Reservation No.: 08311022-02
DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTom YD A WH BRB WwW NY
RB NM YN NY RDN NY NY Be Be Be Be ee ee
eo WA A BB YB NH fF SF © HO ADAH RB wWw NY SF OO
I, Laralei S. Paras declare as follows:
1, Jam an attorney licensed to practice in California. I represent plaintiff, Anthony
Held (“Held”), and am one of the attorneys of record in this Health and Safety Code § 25249.5 et
seq. (“Proposition 65”) action. I have personal knowledge of the facts declared herein, or have
been informed by those individuals with personal knowledge of the facts, and will competently
testify to them if called upon to do so.
2. Held brought this action pursuant to Health and Safety Code § 25249.7(d) to
promote awareness of exposures to toxic chemicals, specifically lead, and to improve human
health by reducing or eliminating hazardous substances present in certain consumer products.
3. Defendant Tractor Supply Company (“TSC”) and Held have reached a resolution
of this action through the mutual execution of a settlement agreement in the form of a [Proposed]
Consent Judgment (“Consent Judgment”). A true and correct copy of the Consent Judgment is
attached as Exhibit A.
Investigation, Litigation and Settlement Background
4. Prior to his issuance of the 60-Day Notice of Violation, and the commencement of
this action, Held’s investigation concluded that TSC manufactured, imported, distributed, sold,
and/or offered for sale in California, sprayer hoses containing lead (the “products”), and that it did
so without providing the health hazard warning Held alleges is required by Proposition 65. Lead
is listed pursuant to Proposition 65 as a chemical known to the State of California to cause birth
defects or other reproductive harm.
5 On November 20, 2017, Held served TSC, the California Attorney General, and all
other requisite public enforcement agencies with a 60-Day Notice of Violation (the “Notice”).
The Notice alleges that TSC violated Proposition 65 when it failed to warn its customers and
consumers in California that its products can expose users to lead. The Consent Judgment
resolves Held’s claims against TSC.
6. On May 21, 2018, more than sixty days after TSC was given notice, with no public
enforcer having elected to enforce the violations alleged in the Notice, Held filed the instant
action (“Complaint”), naming TSC as a defendant for the alleged violations of California Health
1SO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTIY DA WA RB WN
& Safety Code § 25249.6. Thereafter, the parties engaged in informal settlement discussions in
an effort to resolve Held’s claims.
7. On or about August 23, 2018, the parties finalized and mutually executed the
Consent Judgment. The Consent Judgment resolves all Held’s claims alleged in the Notice and
Complaint, and provides appropriately tailored releases.
8. The Consent Judgment is a product of arm’s-length negotiations conducted by
experienced counsel. The settlement discussions included numerous e-mails and telephone calls,
during which the parties exchanged sales data, laboratory results, and other information relevant
to settlement. During negotiations, Held and his counsel first sought an agreement with TSC as to
the settlement injunctive terms, including product reformulation and compliant warnings. Next,
the parties worked to determine the number of alleged violations and the amounts to be paid in
civil penalties. As a separate and final term, the parties negotiated TSC’s reimbursement of a
portion of Held’s attorneys’ fees and costs.
Selected Contents of Consent Judgment Constituting Significant Public Benefit
9. The Consent Judgment requires that TSC shall only manufacture for sale, purchase
for sale, or import for sale in California products that carry an appropriate Proposition 65-
compliant warning, or “Reformulated Products,” consisting of products that: (a) contain lead in
concentrations that do not exceed 90 parts per million (ppm), equivalent to 0.009%, when.
analyzed pursuant to U.S. Environmental Protection Agency (EPA) testing methodologies 3050B
and 6010B; and (b) yield a result of no more than 1.0 micrograms of lead when sampled
according to NIOSH 9100 protocol and analyzed according to EPA 6010B. In addition to the
above test methodologies, the Parties may use equivalent methodologies utilized by a state or
federal agency to determine lead content in a solid substance.
10. Proposition 65 regulations state that the determination of whether a level of
exposure to a chemical known to the state to cause reproductive toxicity has no observable effect
for purposes of Section 25249.10(c) of the Act shall be based on evidence and standards of
comparable scientific validity to the evidence and standards which form the scientific basis for the
listing of a chemical as known to the state to cause reproductive toxicity. Nothing in this article
2Co eo YN DA HW PB WN
RN NY NM YN YN RR SF Se Be Be Be Be ew Be eB
oe QI Aw FB YB YH =F So ww I DH FF Ww HY KF
shall preclude a person from using evidence, standards, assessment methodologies, principles,
assumptions or levels not described in this article to establish that a level of exposure has no
observable effect at one thousand (1,000) times the level in question. 27 Cal. Code Regs. § 25801
et seq.
11. The issue of the level of exposure to lead from the products was not definitively
resolved, The parties decided that the expert testimony required to examine the amount of the
chemical available for transfer, how the transfer of the chemical occurs, and how much of the
chemical is ingested or absorbed is complex and presents risks both parties prefer to leave
unresolved. Rather than litigate the issue, Held and TSC agreed that TSC will reduce the lead in
the products to a level that poses no observable effect or provide a clear and reasonable warning
in accordance with Proposition 65.
12. The lead content levels established by the Consent Judgment have been approved
by trial courts in the State of California as injunctive terms that comply with Proposition 65. The
90 ppm lead level parallels the federal limits applicable to lead in paint and certain consumer
products bearing lead-containing paint. See 16 CFR § 1303.1. Moreover, the reformulation
standards are significantly lower than the levels of lead in the Products, for which a warning
plausibly is required, reported on the results of laboratory testing of Products which I have
reviewed.
13. The warnings authorized under the Consent Judgment meet Proposition 65’s
applicable regulatory requirements in California Code of Regulations title 27, section 25600 et
seq., operative August 30, 2018, both in terms of the required language and in terms of the method
of transmission. Specifically, the warning language complies with the content requirements of
California Code of Regulations title 27, section 25603. A symbol of a black exclamation point in a
yellow equilateral triangle shall be appropriately placed to the left of the word “WARNING”
printed in all capital letters and in bold font. Cal. Code Regs. tit. 27, §25603(a)(1)(2), (b)(1)(2).
If the packaging does not use the color yellow, then the symbol may be in black and white. Cal.
Code Regs. tit. 27, §25603(a)(1). Where applicable, the text of the warning language identifies the
listed chemical for which the warning is being provided. Cal. Code Regs. tit. 27, §25603(a)(2)(B).
3oD OM ND HW BRB WN
Ny oN NY NY YN NNR NY Be Be Be Be ee ee ea
oe TDA A FF OBS F&F SF OD MYA A WwW KR YW NH =
The warning is reasonable in that it shall be either affixed to the packaging, labeling or directly on
any Products, other than Reformulated Products. (Consent Judgment §§ 2.3-2.5; Cal. Code Regs.
tit. 27, § 25602.)
14. Under the terms of the Consent Judgment, TSC will pay a $11,750 civil penalty
payment. TSC’s payment will be allocated according to Health & Safety Code § 25249.12 (c)(1)
and (d), with 75% of the penalty paid to the California Office of Environmental Health Hazard
Assessment (“OEHHA”) and the remaining 25% of the penalty payment retained by Held.
(Consent Judgment § 3.1.)
15. The parties negotiated the penalty payment at arm’s-length, and the figure is based
on the facts and circumstances of this case. In doing so, the parties considered each of the factors
set forth in Health and Safety Code § 25249,7(b)(2) together with information provided by TSC
during settlement negotiations. Held considers the sale of the products without the requisite
warnings to be a serious violation of the statute. TSC, however, has demonstrated its commitment
to Proposition 65 compliance by agreeing to provide clear and reasonable warnings or to eliminate
or reduce the lead content in the products, and has agreed to compensate the public for its alleged
past violations. TSC’s cooperation in the settlement process, and its agreement to resolve this case
without the expense of a trial were also factors considered during penalty negotiations.
Reasonable Reimbursement of Attorneys’ Fees and Costs
16. The Consent Judgment requires TSC to reimburse a portion of Held’s attorneys”
fees and costs. Prior to finalizing and submitting the Consent Judgment to the Court, rather than
incur the additional expenses associated with filing a separate application for attorneys’ fees
pursuant to Code of Civil Procedure § 1021.5, the parties negotiated the reimbursement of a
portion of Held’s fees and costs as a separate and final term in the Consent Judgment.
17. As a result of their negotiations, and in order to fully resolve this matter without
looking to an ancillary proceeding to determine the appropriate fee reimbursement, Held agreed to
accept $38,250 in settlement of all fees and costs incurred investigating, litigating, and negotiating
the settlement of this enforcement action in the public interest. The negotiated reimbursement
tepresents a compromise of the $46,503.05 lodestar incurred by Held. In addition to the
4compromise on the fees incurred as of the date of this filing, the Settlement also includes a
compromise of those future amounts that will necessarily be incurred appearing at the hearing, and
fully concluding the matter with the Court, the parties, and the Attorney General’s office.
18. I believe the amounts submitted in connection with this motion for approval are
properly tabulated, and supported by the billing records I have reviewed.
19. Below, I provide a task-based summary of the efforts undertaken to successfully
conclude this action. The time billed by attorneys, paraprofessionals, and clerks is organized into
five stages of this enforcement action: (1) the Investigation Stage, including all steps necessary to
conduct and conclude a successful investigation into the products and associated alleged
violations; (2) the Notice Stage, including review of all investigation and testing material for
preparation of the Notice and certificate of merit; (3) the Litigation Stage, including all activities
from the preparation and filing of the Complaint, as well as case management, confidentiality
agreements, and preparing and propounding discovery or other forms of informal information
exchange; (4) the Settlement Stage, including the negotiation and drafting of the Consent
Judgment, and complying with the Attorney General’s reporting requirements; and (5) the
Approval Stage, which includes the drafting and revision of this motion to approve and all
supporting papers, as well as service of the moving papers on the Attorney General and the parties
to this action. Notably, these amounts do not include time incurred filing the motion, appearing at
the approval hearing, giving notice of any judgment or other ruling which may follow, or
monitoring TSC’s compliance with the Settlement going forward. Costs associated with the case
form a sixth category, and include filing fees, postage, and copy expense.
20. Attached as Exhibit B to this declaration is a “Fee and Cost Summary.” All sums
listed under the Fee and Cost Summary were incurred in connection with the investigation,
prosecution, and settlement of this action and no other action. None of the fees and costs
presented in this action have been or will be claimed in connection with any settlement reached in
other Proposition 65 enforcement action. The Fee and Cost Summary summarizes the time The
Chanler Group (“TCG”) employees and contractors billed during each stage of this case, as well
as the total costs incurred, reduced by counsel’s exercise and application of billing judgment. The
5oo Om NI DH BW N
NN MY NY NN NN KY SF BF Be Be Be Be ewe Be Be
oI Aa Fo SHS F&F SBD we IQA AA PB wWwN
following paragraphs present a general composite of the specific tasks performed in each of the
five categories discussed above, and provide further detail with respect to work performed in
certain subcategories.
20.1 “Category I: Investigation Fees” are recorded by TCG employees and
contractors who perform tasks in the following four subcategories: (1) Field Investigation;
(2) Intake Process; and (3) Testing. The time attributable to these subcategories is found in
Category I of Exhibit B. A more detailed description of the tasks performed in each of these
subcategories follows:
20.1.1 Field Investigation
Reviewing online retail locations and traveling to and from brick-and-mortar retail
locations throughout California; examining store entrances, exteriors and interiors, including all
departments, points-of-sale and customer service areas for any visible Proposition 65 signage, and
recording pertinent information; purchasing, taking custody of, and securing the evidence with the
corresponding receipts; completing a field investigation report; and transferring custody of the
products to an office investigator.
20.1.2 Intake Process
Taking office custody and inventory of each product purchased, together with all field
investigation forms and receipts; duplicating receipts for the product file; review and quality
control of field investigation forms; preparing a computerized investigation report; reviewing
product labeling and packaging for breakage and cracks; recording product attributes, including
physical characteristics of component parts, such as product design, color, flexibility, texture and
scent; assigning a control or evidence number and storage location; photographing the products,
packaging and labeling; updating the investigation file; storing evidence; documenting chain of
custody throughout the internal investigation; reviewing all processes and procedures followed to
assure conformance with established standards; and preparing case summary reports.
20.1.3 Testing
Preparing all required pre-testing forms and documentation; conducting in-office X-ray
Fluorescence (XRF) testing of products for chemical presence and content, and generating
ee aa oe 6
IN 65 SETTLEMENT & CONSENT JUDGMENTCo Oo DD MH BW BP =
BS 2 6
reports; ordering tests and confirming testing protocols with laboratories; reviewing test results
and quality control reports; and recording the results.
20.2 “Category II: Notice Fees” are recorded by TCG employees and
contractors for all activities prior to the issuance of the Notice. Legal staff perform the following
tasks including, but not limited to: (1) initial client consultation regarding a potential Proposition
65 violation and possible issuance of a Notice; (2) consulting internally with investigative staff
regarding the potential Proposition 65 violation(s) at issue; (3) reviewing investigation reports
regarding the products and chemical(s) at issue; (4) reviewing point-of-sale locations and
information, whether warnings, signs or labels were observed on or near the products at issue, and
determining the identity of potential violators within supply chain, including manufacturers,
distributors, importers or retailers involved connected to an alleged violation; (5) consulting with
an expert in field regarding exposures, and reviewing expert-prepared correspondence and other
information submitted in support of the certificate of merit and Notice served on the Attorney
General; (6) reviewing financial and legal information regarding potential defendants, including
the employee count, location of business, and type of business; (7) updating client as to results of
the investigation and status, test results, chemical(s) involved, category of products, and specific
information about entities who may receive the Notice; (8) preparing an investigative case file
prior to issuance of the Notice; (9) scheduling and calendaring of applicable 60-day period and
service of the Notice; (10) reviewing the case file and investigative file in preparation for drafting
and editing the Notice; (11) executing the certificate of merit supporting the Notice; and
(12) drafting, finalizing, and issuing the Notice, including perfecting service on all public
enforcers and alleged violators. The time attributable to the notice stage of this enforcement
action is found in Category II of Exhibit B.
20.3 “Category III: Litigation Fees” are recorded by TCG employees and
contractors for all activities from the expiration of a notice to resolution of the matter. Held’s
counsel, paralegals, and clerks perform the following litigation tasks including, but not limited to:
(1) reviewing the notice of violation and preparing the case file; (2) adding the matter to the firm’s
calendar and calendaring the expiration of the applicable 60-day notice period; (3) reviewing.
7oo wm NO OW RB BY ON
YN YY RYN NR KR KDB Be me ke
oY AA KB YW H = SF © ODO IY DAH RB Bw NY
letters of representation or other initial communications with a noticed entity or its defense
counsel; (4) updating the firm’s contact list regarding the noticed entity and any defense counsel;
(5) researching the applicable statute of limitations; (6) researching the agent for service of process
of a noticed entity; (7) selecting the proper venue for the action; (8) researching, drafting, editing,
reviewing, and executing the Complaint; (9) preparing the summons and civil case cover sheet;
(10) updating the firm’s database with the complaint filing date; (11) coordinating and conducting
the service of the complaint and summons; (12) reviewing the completed Notice and
Acknowledgement of Receipt of the complaint and summons; (13) completing and preparing
summons and proof of service of summons for filing with the court; (14) calendaring the
responsive pleading date; (15) calendaring the first day to serve discovery; (16) drafting the
confidentiality agreement; (17) exchanging information informally pursuant to the confidentiality
agreement between the parties in lieu of propounding written discovery; (18) preparing and filing
any case management statement. The time attributable to the litigation stage of this enforcement
action is found in Category III of Exhibit B.
20.4 “Category IV: Settlement Fees” are recorded by TCG employees and
contractors for activities related to the negotiation and preparation of the settlement. Held’s
counsel, paralegals, and clerks perform the following settlement tasks including, but not limited to:
(1) reviewing prior judgments to ensure consistency in enforcement; (2) preparing and drafting the
Consent Judgment; (3) negotiating, editing, and revising provisions of the Consent Judgment with
opposing counsel; (4) discussing settlement offers and demands with the client; (5) negotiating
injunctive terms; (6) reviewing applicable factors for civil penalties and negotiating civil penalties;
(7) negotiating attorneys’ fees and costs; (8) calendaring compliance schedules; and (9) reporting
the settlement to the Attorney General. The time attributable the settlement stage of this
enforcement action is found in Category IV of Exhibit B.
20.5 “Category V: Approval Fees” are recorded by TCG employees and
contractors for activities required to bring the Consent Judgment before the court for approval,
including, but not limited to: (1) drafting the notice of motion and motion to approve the Consent
Judgment; (2) drafting the memorandum of points and authorities in support of the motion to
EE ee 8
DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTapprove; (3) drafting the attorney’s supporting declaration; (4) preparing an affidavit of
compliance with pertinent regulations; (5) service of the motion on defendant(s) and the Attomey
General; and (6) calendaring all briefing deadlines and hearings. The time attributable to the
judicial approval of stage of this enforcement action is found in Category V of Exhibit B. It is
notable that the time billed to the Approval category of Exhibit B does not include time to be
incurred reviewing and responding to concerns and/or objections from the Attorney General, if
any; appearing at the hearing on the motion to approve; preparing any requested supplemental
briefing; preparation and service of a notice of entry of judgment or other ruling issued;
concluding the matter with the Court, the parties and the Attorney General’s Office; attendance at
any ordered compliance hearing; and monitoring compliance with the terms of the Settlement
going forward.
21. — Forall categories on Exhibit B, attorneys, paralegals, staff, and other professionals
and paraprofessionals are instructed to keep near-contemporaneous time records of their work. I
am informed and believe that those contributing time to this case keep their records in this
manner, and that the records were computerized, summarized, and reviewed. The Fee and Cost
Summary attached as Exhibit B identifies each individual who recorded time to this case by their
initials, the individual’s billing rate(s), the amount of time billed at each rate, and the total
corresponding fees.
22. TCG investigates and prosecutes Proposition 65 actions on behalf of individual
private enforcers primarily in the San Francisco Bay Area. The founding attorney of TCG,
Clifford A. Chanler, confers with senior colleagues to determine reasonable billing rates for
attorneys, paraprofessionals, investigators, clerks and other billable personnel on an annual basis.
As a part of this process, the billing rates for TCG are compared with rates listed in third-party
surveys such as the National Law Journal’s periodic Law Firm Billing Survey (“NLJ Survey”).
Hourly rates for TCG attorneys and staff were most recently audited in January 2018. TCG
attomey rates are established and revised with reference to the average rates charged by other law
firms for that attorney’s class. Most influential are the rates of those firms that litigate
Proposition 65 cases, as those rates tend to fall within the same geographic and legal practice
see EEE EEE Ee - oo ee : . 9
DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTareas. Such rates are viewed as a benchmark of reasonableness in this specialized practice area.
In addition, TCG considers those rates approved by trial courts in Proposition 65 settlements as a
further benchmark of reasonableness.
23. Historically, the established rates of TCG attorneys are below the rates charged by
firms operating in the same geographic and legal practice areas. Moreover, TCG’s billing rates
have historically been at or below the national and California average billing rates for attorneys of
the same class. .TCG’s highest hourly rates have consistently been more than $100 per hour less
than the highest rates billed by partners and associates of firms operating in the same legal and
geographic practice areas, as reported in the NLJ Survey. Those law firms listed in the NLJ
Survey that represent opposing parties in Proposition 65 cases bill at rates consistently above
TCG’s highest hourly rates.
24. Most recently, TCG compared its associate rates with the 2016 rates published in
the 2017 NLJ Survey. TCG uses these rates to assess the reasonableness of the rates billed. This
showed that TCG rates at the time were, and likely are, commensurate with, and in most cases
below, the published rates billed by attorneys of the same class.
25. The work of TCG staff investigators is billed at rates between $120 and $300 for
the calendar year 2018, and was between $115 and $295 for the calendar year 2017. The work of
the paraprofessionals and law clerks is billed at rates between $130 and $315 for the calendar year
2018, and was between $120 and $305 per hour for the calendar year 2017. TCG’s Director of
Investigations and Manager of Investigations respectively hourly rates are between $450 and
$315 for the calendar year 2018, and were $450 and $310 for 2017. It is TCG’s policy to make
every effort to utilize the attorney or staff person at the lowest billing rate available to capably
handle any given task.
26. 1am also informed and believe that in some Proposition 65 cases, judges and
arbitrators alike have awarded a multiplier of attorney fees to compensate for, among other things,
the contingent nature of the legal work, the difficulty of the case, the delayed reimbursement of
fees, and the assumption of initial cost outlays. These multipliers have ranged from 1.25 to 1.75,
which have enhanced the fee award by 25% to 75%. While Held feels that such a multiplier
10
DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTwould be appropriate in this case, Held and his counsel are not seeking such a fee enhancement in
the interest of finalizing this settlement.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on this * day of August 2018, at Berkeley, California.
ANTHONY E. HELD, Ph.D. P.E.
i
DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTEXHIBIT Awpe w HN
Laralei $. Paras, State Bar No. 203319
THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710-2565
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
laralei @chanler.com
Attorneys for Plaintiff
ANTHONY E. HELD, PH.D., P.E.
Jay W. Connolly, State Bar No. 114725
Seyfarth Shaw LLP
560 Mission Street, 31 Floor
San Francisco, CA 94105-2930
Telephone: (415) 397-2823
Facsimile: (415) 397-8549
Attorneys for Defendant
TRACTOR SUPPLY COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ANTHONY E. HELD, PH.D., P.E., Case No. CGC-18-566691
Plaintiff, [PROPOSED]
; CONSENT JUDGMENT
v.
| (Health & Safety Code § 25249.6 ef seq.,
TRACTOR SUPPLY COMPANY, | & Cal. Code Civ. Proc. § 664.6)
Defendant. |CoN A WwW eB WN
/
1. INTRODUCTION
1.1. Parties
This Consent Judgment is entered into by and between Anthony E. Held, Ph.D., P.E.
(“Held”) and Tractor Supply Company (“TSC”), with Held and TSC each individually referred to as
a “Party” and collectively as the “Parties.”
1.2 Plaintiff
Held is an individual residing in the State of California who seeks to promote awareness of
exposures to toxic chemicals and to improve human health by reducing or eliminating hazardou:
substances used in consumer products.
1.3 Defendant
TSC employs ten or more individuals and is alleged to be a person in the course of doing
business for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986, Californi
Health & Safety Code § 25249.5 et seq. (“Proposition 65”).
1.4 General Allegations
Held alleges that TSC manufactured, imported, distributed, offered for sale and/or sold in or
into California sprayer hoses containing Lead without providing consumers or other individuals
residing in California the clear and reasonable warning that he alleges is required under Proposition
65. Lead is listed pursuant to Proposition 65 as a chemical known to the State of California to cause
birth defects and other reproductive harm.
1.5 Products Description
ia
The “Products” covered by this Consent Judgment are defined as sprayer hoses containing
Lead that are manufactured, imported, distributed and offered for sale or otherwise sold, directly or
| limited to, the GroundWork 1/2 Gallon Pump Sprayer, #1093696, UPC #7 49394 08650 3.
1.6 Notice of Violation
: indirectly, in or into California by TSC as a component of its sprayer products including, but not
|
|
|
|
|
On November 20, 2017, Held served TSC and the requisite public enforcement agencies with —
a “60-Day Notice of Violation” (“Notice”) alleging that TSC violated Proposition 65 by failing
to
warn customers and consumers in California of their alleged exposure to Lead in the Products at or
CONSENT JUDGMENTSom YA DAH BRB WN
San GS 2S
17
18
19
20
21
22
23 |
2. INJUNCTIVE RELIEF: REFORMULATION AND WARNING
24
25
26
27
28
above levels requiring a warning under Proposition 65. No public enforcer has commenced and is
diligently prosecuting an action to enforce the violations alleged in the Notice.
1.7 Complaint
On May 21, 2018, no public enforcer having commenced prosecution of the allegations set
forth in the Notice, Held filed the instant action (“Complaint”) for the alleged violations of
Proposition 65 that are the subject of the Notice.
1.8 No Admission
TSC denies the material, factual, and legal allegations in the Notice and Complaint, and
maintains that all products it has manufactured, imported, distributed, shipped, sold and/or offered
for sale in California, including the Products, have been and are safe and in compliance with all
laws. Nothing in this Consent Judgment shall be construed as, nor shall compliance with this
Consent Judgment constitute or be construed as, an admission by TSC of any allegation, fact,
finding, conclusion, issue of Jaw, or violation of law, such being specifically denied by TSC. This
Section shall not, however, diminish or otherwise affect TSC’s obligations, responsibilities, and
duties under this Consent Judgment.
19 Jurisdiction
For purposes of this Consent Judgment only, the Parties stipulate that this Court has
jurisdiction over TSC as to the allegations in the Complaint, that venue is proper in the City and
County of San Francisco, and that the Court has jurisdiction to enter and enforce the provisions of
this Consent Judgment pursuant to Proposition 65 and Code of Civil Procedure § 664.6.
1.10 Effective Date
For purposes of this Consent Judgment, the term “Effective Date” means the date on which
the Court grants the motion for approval of the Consent Judgment contemplated by Section 11
2.1 Reformulation Commitment
Commencing on the Effective Date and continuing thereafter, TSC shall only manufacture
| for sale, purchase for sale, or import for sale in California, Products that are Reformulated Products
as defined by Section 2.2, or Products that are labeled with a clear and reasonable warning as set
CONSENT JUDGMENTWON
| forth under Section 2.3.
2.2 Reformulation Standard
For the purposes of this Consent Judgment, “Reformulated Products” are defined as Products |
that contain no more than 90 parts per million (0.009%) Lead content when sampled and analyzed |
|
|
pursuant to EPA testing methodologies 3050B and 6010B; and (c) yield a result of no more than 1.0
micrograms of Lead when sampled according to NIOSH 9100 protocol and analyzed according to
EPA 6010B. In addition to the above test methodologies, the Parties may use equivalent
methodologies utilized by a state or federal agency to determine Lead content in a solid substance.
2.3. Clear and Reasonable Warnings
Commencing on the Effective Date and continuing thereafter, all Products TSC sells and/or
distributes for sale in California which do not qualify as Reformulated Products, will bear a clear and
reasonable warning pursuant to this Section. TSC further agrees that the warning will be prominently |
placed with such conspicuousness when compared with other words, statements, designs or devices |
as to render it likely to be read and understood by an ordinary individual under customary conditions
of use.
|
For purposes of this Consent Judgment, a clear and reasonable warning for the Products shall |
consist of a warning affixed to the packaging, label, tag, or directly to a Product sold in California
)
| and containing one of the following statements:
I 4. WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov
l
! OR
4. WARNING: This product can expose you to chemicals
| including Lead, which is known to the
State of California to cause cancer and birth defects or
other reproductive harm. For more information
| go to www.P6SWarnings.ca.gov
Pursuant to Health and Safety Code § 25603(a)(1), the warning symbol that accompanies the
warning language may be printed in black and white where the sign, label, or shelf tag for the product |
is not printed using the color yellow.
Hf
Hl
“CONSENT JUDGMENTBR wb NV
27
28
entered pursuant to the terms of this Consent Judgment.
For purposes of this Consent Judgment, a clear and reasonable warning for Products
manufactured prior to August 30, 2018, may also consist of a warning affixed to the packaging, label,
tag, or directly to a Product sold in California and containing the following statement:
WARNING: This product contains chemicals known to the State of California
to cause cancer, birth defects or other reproductive harm.
3. MONETARY SETTLEMENT TERMS
3.1 Civil Penalty Payments
Pursuant to Health and Safety Code § 25249.7(b)(2), and in settlement of all claims alleged in
the Notice or referred to in this Consent Judgment, TSC agrees to pay a total of $11,750 in civil
penalties. The penalty payment will be allocated in accordance with California Health and Safety
Code § 25249.12(c)(1) & (d), with 75% of the penalty amount paid to the California Office of
Environmental Health Hazard Assessment (“OEHHA”) and the remaining 25% of the penalty
amount retained by Held.
TSC will deliver its payment within five business (5) days of receipt by TSC of copies of the
order approving this Consent Judgment and the Judgment entered pursuant to the terms of this
Consent Judgment in two checks for the following amounts made payable to: (a) “OEHHA” in the
amount of $8,812.50; and (b) “Anthony Held, Client Trust Account” in the amount of $2,937.50.
Held’s counsel shall be responsible for delivering OEHHA’s portion of the penalties paid under this
Consent Judgment.
3.2 Attorneys’ Fees and Costs |
The Parties reached an accord on the compensation due to Held and his counsel under |
general contract principles and the private attorney general doctrine codified at Code of Civil
Procedure § 1021.5 for all work performed in this matter. TSC agrees to pay $38,250 to Held and
his counsel for all fees and costs incurred investigating, bringing this matter to the attention of TSC’s
management, and negotiating a settlement that provides a significant public benefit. TSC’s payment
shall be delivered in the form of a check payable to “The Chanler Group” within five business (5)
days of receipt by TSC of copies of the order approving this Consent Judgment and the Judgment
CONSENT JUDGMENTwk BN
wo wm I A
3.3. Payment Address
All payments under this Consent Judgment shall be delivered to:
The Chanler Group
Attn: Proposition 65 Controller
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710
4. CLAIMS COVERED AND RELEASED
4.1 Held’s Release of Proposition 65 Claims
Held, acting on his own behalf and in the public interest, releases TSC, its parents,
subsidiaries, predecessors and successors in interest, affiliated entities under common ownership,
and their directors, officers, employees, agents, shareholders, partners, members and attorneys
(“Releasees”), and each entity to whom TSC directly or indirectly distributes or sells the Products,
including, but not limited, TSC’s downstream distributors, wholesalers, customers, retailers,
franchisees, cooperative members, licensors and licensees, and their owners, directors, officers,
agents, principals, employees, attorneys, insurers, accountants, predecessors, successors, and assigns
(“Downstream Releasees”) from any and all claims that were or could have been asserted by Held,
his past and current agents, principals, employees, insurers, accountants, entities under his ownership
or direction, representatives, attorneys, successors, and/or assignees (“Releasors”) under Proposition
65 for failure to warn about alleged exposures to Lead in the Products manufactured, imported,
distributed, offered for sale and/or sold in or into California by TSC, Releasees, and/or Downstream
Releasees on or before the Effective Date, as alleged in the Notice. Compliance with the terms of
this Consent Judgment constitutes compliance with Proposition 65 with respect to exposures to Lead
from the Products.
4.2 Held’s Individual Release of Claims
In further consideration of the promises and agreements herein contained, Held, on behalf of
himself, and Releasors, waives any and all rights that he may have to institute or participate in,
directly or indirectly, any form of legal action against TSC, Releasees or Downstream Releasees,
and releases TSC, Releasees, and Downstream Releasees from, without limitation, all claims,
actions, and causes of action, in law and in equity, all suits, liabilities, demands, obligations,
CONSENT JUDGMENTdamages, costs, fines, penalties, losses, or expenses (inchiding, but not limited to, investigation fees,
expert fees, and attorneys’ fees), that were asserted, or that could have been asserted, against TSC,
Releasees or Downstream Releasees for any alleged violations of Proposition 65, or any other
alleged violations of statutory or common law, arising from alleged exposures to Lead in the
Products sold by TSC before the Effective Date (collectively “claims”).
4.3 TSC’s Release of Held
TSC, on its own behalf, and on behalf of its past and current agents, representatives,
attorneys, successors, and/or assignees, hereby waives any and all claims against Held and his
attorneys and other representatives, for any and all actions taken or statements made by Held and his
attorneys and other representatives, whether in the course of investigating claims articulated in the
Notice, otherwise seeking to enforce Proposition 65 against it in this matter, or regarding the
Products.
4.4 Mutual Release of Known and Unknown Claims
It is possible that other claims not known to the Parties arising out of the facts alleged in the
Notice and relating to the Products sold by TSC before the Effective Date will develop or be
discovered. Held, on behalf of himself and Releasors, in his individual capacity only and not in his
representative capacity, and TSC, each acknowledge that this release is expressly intended to cover
and include all such claims, including all rights of action therefor, and further acknowledge that the
claims released in Sections 4.1, 4.2 and 4.3 may include unknown claims, and nevertheless waive
California Civil Code § 1542 as to any such unknown claims arising out of the facts alleged in the
Notice and relating to the Products sold by TSC before the Effective Date. California Civil Code
§ 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge and understand the significance and consequences of this specific waiver of |
| California Civil Code § 1542 arising out of the facts alleged in the Notice and relating to the Products |
sold by TSC before the Effective Date.
CONSENT JUDGMENTwe WN
5. COURT APPROVAL |
This Consent Judgment is not effective until it is approved and entered by the Court and shall
be null and void if, for any reason, it is not approved and entered by the Court within one year after |
it has been fully executed by the Parties, or by such additional time as the Parties may agree to in |
writing.
6. SEVERABILITY
If, subsequent to the Court’s approval and entry of this Consent Judgment as a judgment, any |
of the provisions of this Consent Judgment are deemed by a court to be unenforceable, the validity of |
27
28
the remaining provisions shall not be adversely affected.
7. GOVERNING LAW
The terms of this Consent Judgment shall be governed by the
and apply within the State of California. In the event that Proposition 65 is repealed or is otherwise
rendered inapplicable by reason of law generally, or as to Lead or as to the Products, then TSC may
provide written notice to Held of any asserted change in the law, or it:
Products, and shall have no further injunctive obligations pursuant to
respect to, and to the extent that, TSC or the Products are so affected.
8 NOTICE
Unless specified herein, all correspondence and notice required to be provided pursuant to
this Consent Judgment shall be in writing and sent by: (a) personal delivery; (b) first-class, registered
or certified mail, return receipt requested; or (c) a recognized overnig
other at the following addresses:
For FSC: Karen Austin For Held:
Vice President, Legal & Compliance
Tractor Supply Company
5401 Virginia Way
Brentwood, TN 37027
With a copy to:
Jay W. Connolly
Seyfarth Shaw LLP
560 Mission Street, 31st Floor
San Francisco, CA 94105-2930
CONSENT JUDGMENT
laws of the State of California
s applicability to TSC or the
this Consent Judgment with
ht courier on any Party by the
Proposition 65 Coordinator
The Chanler Group
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710BR WON
Any Party may, from time to time, specify in writing to the other a change of address to which all
notices and other communications shall be sent.
9. COUNTERPARTS: FACSIMILE/PDF SIGNATURES
This Consent Judgment may be executed in counterparts and by facsimile or portable
document format (PDF) signature, each of which shall be deemed an original, and all of which,
when taken together, shal] constitute one and the same document.
10. COMPLIANCE WITH HEALTH & SAFETY CODE § 25249.7(1)
Held and his attorneys agree to comply with the reporting form requirements referenced in
California Health and Safety Code § 25249.7(f). The Parties further acknowledge that, pursuant to
Health and Safety Code § 25249.7(f), a noticed motion is required to obtain judicial approval of the
settlement. In furtherance of obtaining such approval, the Parties agree to mutually employ their
obtain judicial approval of their settlement in a timely manner. For purposes of this Section, “best
| best efforts, and those of their counsel, to support the entry of this agreement as a judgment, and to
efforts” shall include, at a minimum, supporting the motion.
11. MODIFICATION
This Consent Judgment may be modified only by: (i) a written agreement of the Parties and
entry of a modified consent judgment by the Court thereon; or (ii) a successful motion or application
of any Party, and the entry of a modified consent judgment by the Court thereon.
12. ENTIRE AGREEMENT
This Consent Judgment contains the sole and entire agreement of the Parties and any and all
prior negotiations and understandings related hereto shall be deemed to have been merged within it.
No representations or terms of agreement other than those contained herein exist or have been made
by any Party with respect to the other Party or the subject matter hereof.
‘ii
fit
ttt
fit
vit
CONSENT JUDGMENTeo oe YN AH B® wWwKH
n= 5
13
13. AUTHORIZATION
The undersigned are authorized to execute this Consent Judgment on behalf of their
respective Parties and have read, understood, and agreed to all of the terms and conditions of this
Consent Judgment.
AGREED TO:
Date:_8/22/2018..
AGREED TO:
Date: CLI - AF aie
7 ~/}
foe ot has -
By: of -
Karen Austin,
Vice President, Legal & Compliance
Tractor Supply Company
“CONSENT UDGMENT
jeEXHIBIT B-FEE AND COST SUMMARY: TRACTOR SUPPLY COMPANY
SUMMARY
Category |: Investigation Fees | $ 15,657.00 |
Category Il: Notice Fees | $ 5,235.00 |
Category Ill: Litigation Fees 1 $ 5,234.00
Category IV: Settlement Fees is 13,466.00 |
Category V: Approval Fees Ts 5,705.00 |
Category VI: Associated Costs 7 ee fs 1,206.05 |
Total:| $ 46,503.05 |
CATEGORY I: INVESTIGATION
Field and In-Office Investigation
summary for responsible entities.
Travel to/from retail locations in Napa, Solano, Amador, San Joaquin, Stanislaus, Yolo, and Contra Costa
counties to investigate and inspect evidence; record and document visit and purchase transactions;
conduct internet investigation to locate ecommerce websites, determine product availability and secure
evidence; complete reporting and chain of custody requirements; identify, gather and prepare financial
Staff |
Year Rate Hours Fees
AZR | 2016 $140 29 $ 406.00
AZR 2017 $145 9.1 \s 1,319.50
MSL . 2017 $195 67 I$ 1,306.50
MSL 2018 $200 4 | $ 1,820.00
Is
Subtotal: $
Held v. Tractor Supply Company, et al.
Case No. CGC-18-566691
Page 1 of 4Intake Process and Evidence Documentation
Review evidence and field documentation; perform intake procedure for each unit of evidence including
completion of reporting requirements, evaluation of attributes/characteristics such as component
parts/number of pieces, product design, color, decoration, flexibility, surface and substrate texture,
thickness, and odor/scent, and digital photo log; conduct research to locate all responsible parties; perform
quality control of comprehensive report for each unit of evidence; review and prepare case narratives and
summaries to support litigation,
Staff Year Rate Hours Fees
BSD 2016 $450 0.5 $ 225.00
1 BSD 2017 $450 2.4 _{$ 1,080.00
BSD 2018 $450 24 is 945.00
CHT 2016 $115 2.9 $ 333.50
DIE 2017 §120 2.9 $ 348.00
KMK 2018 $120 5.3 $ 636.00
RR 2017 $130 6.9 is 897.00
RR 2018 $135 7 9.0 $ 1,215.00
wwe { 2017. —- $255 2.0 1 § 510.00
wwe 2018 $260 0.5 $ 130.00
nal aa ets]
Laboratory Testing and X-Ray Fluorescence Analysis
Preparation of evidence and documentation for transfer of custody to laboratory; communications with
laboratory, attorneys, experts and/or clients to ensure appropriate test methodology and analysis of
evidence for lead content; complete post-testing reporting requirements, quality control and custody of
evidence; utilize X-ray Fluorescence device to analyze evidence and record findings, pre-standardization of
apparatus and preparation of report.
Staff Year Rate Hours Fees
BSD 2016 $450 0.9 $ 405.00
BSD | 2017 $450 06 |s 270.00
cL [ 2016 | __._ $300 0.5 $ 150.00
cL 2017 $310 1.0 $ 310.00
JNR 2016 [$140 0.6 $ 84.00
JINR 2017 $145 19 § 275.50
NG 2016 $285 2.6 s 741,00
JVG 2017 $295 3.4 Ts 1,003.00
r KMS 2017 $445 | 2.0 $ 290.00
KMS | 2018 $150 19 $ 285.00
‘Subtotal: 15.4 $ 3,813.50
Held v, Tractor Supply Company, et al.
Case No. CGC-18-566691 Page 2 of 4CATEGORY Il: 60-DAY NOTICE
Prepare, review, revise and serve the 60-Day Notice of Violation to all applicable parties; develop in-depth
field and in-office investigation plan to inspect, assess and secure evidence during pre-notice period
through resolution of case; participate in ongoing communications between expert, attorneys, laboratories
and/or client to provide investigation support, reporting and laboratory findings; review and assemble pre-
notice digital case file and perform periodic updates.
Staff Year Rate Hours
BO 2017 $555 14 $
BSD 2017 $450 24 $ 1,080.00
BSD 2018 1 $450 15 $ 675.00
cL [ 2017 $310 5.0 $1,550.00
JVG 2017 $295 1.0 7 $ 295.00
RR 2017 $130 0.4 y $ oe 52.00
wwe 2018 $260 $ 806,00
Subtotal; $ 5,235.00
CATEGORY Ill: LITIGATION
Complaint
Draft, file and serve complaint; comply with Attorney General reporting requirements.
Staff Rate
2,288.00
200,00
Subtotal: 48 $ 2,488.00
Case Management
Initial communications with defense counsel; review and discuss case status.
Rate Hours
$715 $ 1,072.50
| RAC 2018 $315 02 $ 63.00
SMP 2018 $125 0.3 $ 37.50
Subtotal: 2.0 $ 1,173.00
Informal Discovery
Engage in the confidential exchange of information with defendant in lieu of formal discovery. |
Rate
Subtotal:
Held v. Tractor Supply Company, et al.
Case No. CGC-18-566691 Page 3 of 4CATEGORY IV: SETTLEMENT
Settlement Negotiations
the client.
Negotiate the settlement agreement with defense counsel and discuss settlement offers and demands with
Staff
$690 276.00
LSP 2018 $715 12.0 $ 8,580.00
Subtotal: 12.4 $ 8,856.00
Consent Judgment
Draft, edit and finalize the settlement agreement; comply with Attorney General reporting requirements,
ECR 2018 $300 0.2 $ 60.00
EER 2018 $130 3.1 $ 403.00
isp 2018 $715 5.8 $ 4,147.00
CATEGORY V: MOTION TO APPROVE
Draft, file and serve motion to approve settlement; prepare fee and cost summary chart.
Staff Year Rate Hours Fees
ECR 2018 $300 : $ 300.00
EER 2018 $130 $ 130.00
LBG 2018 $200 $ 400.00
LSP 2018 $715 $s 2,860.00
RAC 2018 “$315 $ 1,890.00
SMP 2018 $125 $ 125.00
Subtotal: $ 5,705.00
CATEGORY VI; ASSOCIATED COSTS
Experts: Toxicologist $ 30.00 |
Filing Fees: Complaint $ 495.00
Motion to Approve $ 60.00
Investigation: Business and Financial Reports 5 34,00
E
Preview
w w Clifford A. Chanler, State Bar No. 135534 Laralei S. Paras, State Bar No. 203319 THE CHANLER GROUP 2560 Ninth Street ELECTRONICALLY Parker Plaza, Suite 214 FILED Berkeley, CA 94710 Superior Court of California, Telephone: (510) 848-8880 eu of see anetece Facsimile: (510) 848-8118 08/31/2018 clifford@chanler.com Clerk of the Court laralei@chanler.com epee a Attorneys for Plaintiff ANTHONY HELD, Ph.D, P.E. SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ANTHONY E. HELD, PH.D., P.E., Case No. CGC-18-566691 Plaintiff, DECLARATION OF LARALEIS. PARAS IN SUPPORT OF MOTION TO v. APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT TRACTOR SUPPLY COMPANY; et al., JUDGMENT Defendants. Date: October 22, 2018 . Time: 9:30 a.m. Dept.: 302 Judge: — Hon. Harold E. Kahn Reservation No.: 08311022-02 DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTom YD A WH BRB WwW NY RB NM YN NY RDN NY NY Be Be Be Be ee ee eo WA A BB YB NH fF SF © HO ADAH RB wWw NY SF OO I, Laralei S. Paras declare as follows: 1, Jam an attorney licensed to practice in California. I represent plaintiff, Anthony Held (“Held”), and am one of the attorneys of record in this Health and Safety Code § 25249.5 et seq. (“Proposition 65”) action. I have personal knowledge of the facts declared herein, or have been informed by those individuals with personal knowledge of the facts, and will competently testify to them if called upon to do so. 2. Held brought this action pursuant to Health and Safety Code § 25249.7(d) to promote awareness of exposures to toxic chemicals, specifically lead, and to improve human health by reducing or eliminating hazardous substances present in certain consumer products. 3. Defendant Tractor Supply Company (“TSC”) and Held have reached a resolution of this action through the mutual execution of a settlement agreement in the form of a [Proposed] Consent Judgment (“Consent Judgment”). A true and correct copy of the Consent Judgment is attached as Exhibit A. Investigation, Litigation and Settlement Background 4. Prior to his issuance of the 60-Day Notice of Violation, and the commencement of this action, Held’s investigation concluded that TSC manufactured, imported, distributed, sold, and/or offered for sale in California, sprayer hoses containing lead (the “products”), and that it did so without providing the health hazard warning Held alleges is required by Proposition 65. Lead is listed pursuant to Proposition 65 as a chemical known to the State of California to cause birth defects or other reproductive harm. 5 On November 20, 2017, Held served TSC, the California Attorney General, and all other requisite public enforcement agencies with a 60-Day Notice of Violation (the “Notice”). The Notice alleges that TSC violated Proposition 65 when it failed to warn its customers and consumers in California that its products can expose users to lead. The Consent Judgment resolves Held’s claims against TSC. 6. On May 21, 2018, more than sixty days after TSC was given notice, with no public enforcer having elected to enforce the violations alleged in the Notice, Held filed the instant action (“Complaint”), naming TSC as a defendant for the alleged violations of California Health 1SO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTIY DA WA RB WN & Safety Code § 25249.6. Thereafter, the parties engaged in informal settlement discussions in an effort to resolve Held’s claims. 7. On or about August 23, 2018, the parties finalized and mutually executed the Consent Judgment. The Consent Judgment resolves all Held’s claims alleged in the Notice and Complaint, and provides appropriately tailored releases. 8. The Consent Judgment is a product of arm’s-length negotiations conducted by experienced counsel. The settlement discussions included numerous e-mails and telephone calls, during which the parties exchanged sales data, laboratory results, and other information relevant to settlement. During negotiations, Held and his counsel first sought an agreement with TSC as to the settlement injunctive terms, including product reformulation and compliant warnings. Next, the parties worked to determine the number of alleged violations and the amounts to be paid in civil penalties. As a separate and final term, the parties negotiated TSC’s reimbursement of a portion of Held’s attorneys’ fees and costs. Selected Contents of Consent Judgment Constituting Significant Public Benefit 9. The Consent Judgment requires that TSC shall only manufacture for sale, purchase for sale, or import for sale in California products that carry an appropriate Proposition 65- compliant warning, or “Reformulated Products,” consisting of products that: (a) contain lead in concentrations that do not exceed 90 parts per million (ppm), equivalent to 0.009%, when. analyzed pursuant to U.S. Environmental Protection Agency (EPA) testing methodologies 3050B and 6010B; and (b) yield a result of no more than 1.0 micrograms of lead when sampled according to NIOSH 9100 protocol and analyzed according to EPA 6010B. In addition to the above test methodologies, the Parties may use equivalent methodologies utilized by a state or federal agency to determine lead content in a solid substance. 10. Proposition 65 regulations state that the determination of whether a level of exposure to a chemical known to the state to cause reproductive toxicity has no observable effect for purposes of Section 25249.10(c) of the Act shall be based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of a chemical as known to the state to cause reproductive toxicity. Nothing in this article 2Co eo YN DA HW PB WN RN NY NM YN YN RR SF Se Be Be Be Be ew Be eB oe QI Aw FB YB YH =F So ww I DH FF Ww HY KF shall preclude a person from using evidence, standards, assessment methodologies, principles, assumptions or levels not described in this article to establish that a level of exposure has no observable effect at one thousand (1,000) times the level in question. 27 Cal. Code Regs. § 25801 et seq. 11. The issue of the level of exposure to lead from the products was not definitively resolved, The parties decided that the expert testimony required to examine the amount of the chemical available for transfer, how the transfer of the chemical occurs, and how much of the chemical is ingested or absorbed is complex and presents risks both parties prefer to leave unresolved. Rather than litigate the issue, Held and TSC agreed that TSC will reduce the lead in the products to a level that poses no observable effect or provide a clear and reasonable warning in accordance with Proposition 65. 12. The lead content levels established by the Consent Judgment have been approved by trial courts in the State of California as injunctive terms that comply with Proposition 65. The 90 ppm lead level parallels the federal limits applicable to lead in paint and certain consumer products bearing lead-containing paint. See 16 CFR § 1303.1. Moreover, the reformulation standards are significantly lower than the levels of lead in the Products, for which a warning plausibly is required, reported on the results of laboratory testing of Products which I have reviewed. 13. The warnings authorized under the Consent Judgment meet Proposition 65’s applicable regulatory requirements in California Code of Regulations title 27, section 25600 et seq., operative August 30, 2018, both in terms of the required language and in terms of the method of transmission. Specifically, the warning language complies with the content requirements of California Code of Regulations title 27, section 25603. A symbol of a black exclamation point in a yellow equilateral triangle shall be appropriately placed to the left of the word “WARNING” printed in all capital letters and in bold font. Cal. Code Regs. tit. 27, §25603(a)(1)(2), (b)(1)(2). If the packaging does not use the color yellow, then the symbol may be in black and white. Cal. Code Regs. tit. 27, §25603(a)(1). Where applicable, the text of the warning language identifies the listed chemical for which the warning is being provided. Cal. Code Regs. tit. 27, §25603(a)(2)(B). 3oD OM ND HW BRB WN Ny oN NY NY YN NNR NY Be Be Be Be ee ee ea oe TDA A FF OBS F&F SF OD MYA A WwW KR YW NH = The warning is reasonable in that it shall be either affixed to the packaging, labeling or directly on any Products, other than Reformulated Products. (Consent Judgment §§ 2.3-2.5; Cal. Code Regs. tit. 27, § 25602.) 14. Under the terms of the Consent Judgment, TSC will pay a $11,750 civil penalty payment. TSC’s payment will be allocated according to Health & Safety Code § 25249.12 (c)(1) and (d), with 75% of the penalty paid to the California Office of Environmental Health Hazard Assessment (“OEHHA”) and the remaining 25% of the penalty payment retained by Held. (Consent Judgment § 3.1.) 15. The parties negotiated the penalty payment at arm’s-length, and the figure is based on the facts and circumstances of this case. In doing so, the parties considered each of the factors set forth in Health and Safety Code § 25249,7(b)(2) together with information provided by TSC during settlement negotiations. Held considers the sale of the products without the requisite warnings to be a serious violation of the statute. TSC, however, has demonstrated its commitment to Proposition 65 compliance by agreeing to provide clear and reasonable warnings or to eliminate or reduce the lead content in the products, and has agreed to compensate the public for its alleged past violations. TSC’s cooperation in the settlement process, and its agreement to resolve this case without the expense of a trial were also factors considered during penalty negotiations. Reasonable Reimbursement of Attorneys’ Fees and Costs 16. The Consent Judgment requires TSC to reimburse a portion of Held’s attorneys” fees and costs. Prior to finalizing and submitting the Consent Judgment to the Court, rather than incur the additional expenses associated with filing a separate application for attorneys’ fees pursuant to Code of Civil Procedure § 1021.5, the parties negotiated the reimbursement of a portion of Held’s fees and costs as a separate and final term in the Consent Judgment. 17. As a result of their negotiations, and in order to fully resolve this matter without looking to an ancillary proceeding to determine the appropriate fee reimbursement, Held agreed to accept $38,250 in settlement of all fees and costs incurred investigating, litigating, and negotiating the settlement of this enforcement action in the public interest. The negotiated reimbursement tepresents a compromise of the $46,503.05 lodestar incurred by Held. In addition to the 4compromise on the fees incurred as of the date of this filing, the Settlement also includes a compromise of those future amounts that will necessarily be incurred appearing at the hearing, and fully concluding the matter with the Court, the parties, and the Attorney General’s office. 18. I believe the amounts submitted in connection with this motion for approval are properly tabulated, and supported by the billing records I have reviewed. 19. Below, I provide a task-based summary of the efforts undertaken to successfully conclude this action. The time billed by attorneys, paraprofessionals, and clerks is organized into five stages of this enforcement action: (1) the Investigation Stage, including all steps necessary to conduct and conclude a successful investigation into the products and associated alleged violations; (2) the Notice Stage, including review of all investigation and testing material for preparation of the Notice and certificate of merit; (3) the Litigation Stage, including all activities from the preparation and filing of the Complaint, as well as case management, confidentiality agreements, and preparing and propounding discovery or other forms of informal information exchange; (4) the Settlement Stage, including the negotiation and drafting of the Consent Judgment, and complying with the Attorney General’s reporting requirements; and (5) the Approval Stage, which includes the drafting and revision of this motion to approve and all supporting papers, as well as service of the moving papers on the Attorney General and the parties to this action. Notably, these amounts do not include time incurred filing the motion, appearing at the approval hearing, giving notice of any judgment or other ruling which may follow, or monitoring TSC’s compliance with the Settlement going forward. Costs associated with the case form a sixth category, and include filing fees, postage, and copy expense. 20. Attached as Exhibit B to this declaration is a “Fee and Cost Summary.” All sums listed under the Fee and Cost Summary were incurred in connection with the investigation, prosecution, and settlement of this action and no other action. None of the fees and costs presented in this action have been or will be claimed in connection with any settlement reached in other Proposition 65 enforcement action. The Fee and Cost Summary summarizes the time The Chanler Group (“TCG”) employees and contractors billed during each stage of this case, as well as the total costs incurred, reduced by counsel’s exercise and application of billing judgment. The 5oo Om NI DH BW N NN MY NY NN NN KY SF BF Be Be Be Be ewe Be Be oI Aa Fo SHS F&F SBD we IQA AA PB wWwN following paragraphs present a general composite of the specific tasks performed in each of the five categories discussed above, and provide further detail with respect to work performed in certain subcategories. 20.1 “Category I: Investigation Fees” are recorded by TCG employees and contractors who perform tasks in the following four subcategories: (1) Field Investigation; (2) Intake Process; and (3) Testing. The time attributable to these subcategories is found in Category I of Exhibit B. A more detailed description of the tasks performed in each of these subcategories follows: 20.1.1 Field Investigation Reviewing online retail locations and traveling to and from brick-and-mortar retail locations throughout California; examining store entrances, exteriors and interiors, including all departments, points-of-sale and customer service areas for any visible Proposition 65 signage, and recording pertinent information; purchasing, taking custody of, and securing the evidence with the corresponding receipts; completing a field investigation report; and transferring custody of the products to an office investigator. 20.1.2 Intake Process Taking office custody and inventory of each product purchased, together with all field investigation forms and receipts; duplicating receipts for the product file; review and quality control of field investigation forms; preparing a computerized investigation report; reviewing product labeling and packaging for breakage and cracks; recording product attributes, including physical characteristics of component parts, such as product design, color, flexibility, texture and scent; assigning a control or evidence number and storage location; photographing the products, packaging and labeling; updating the investigation file; storing evidence; documenting chain of custody throughout the internal investigation; reviewing all processes and procedures followed to assure conformance with established standards; and preparing case summary reports. 20.1.3 Testing Preparing all required pre-testing forms and documentation; conducting in-office X-ray Fluorescence (XRF) testing of products for chemical presence and content, and generating ee aa oe 6 IN 65 SETTLEMENT & CONSENT JUDGMENTCo Oo DD MH BW BP = BS 2 6 reports; ordering tests and confirming testing protocols with laboratories; reviewing test results and quality control reports; and recording the results. 20.2 “Category II: Notice Fees” are recorded by TCG employees and contractors for all activities prior to the issuance of the Notice. Legal staff perform the following tasks including, but not limited to: (1) initial client consultation regarding a potential Proposition 65 violation and possible issuance of a Notice; (2) consulting internally with investigative staff regarding the potential Proposition 65 violation(s) at issue; (3) reviewing investigation reports regarding the products and chemical(s) at issue; (4) reviewing point-of-sale locations and information, whether warnings, signs or labels were observed on or near the products at issue, and determining the identity of potential violators within supply chain, including manufacturers, distributors, importers or retailers involved connected to an alleged violation; (5) consulting with an expert in field regarding exposures, and reviewing expert-prepared correspondence and other information submitted in support of the certificate of merit and Notice served on the Attorney General; (6) reviewing financial and legal information regarding potential defendants, including the employee count, location of business, and type of business; (7) updating client as to results of the investigation and status, test results, chemical(s) involved, category of products, and specific information about entities who may receive the Notice; (8) preparing an investigative case file prior to issuance of the Notice; (9) scheduling and calendaring of applicable 60-day period and service of the Notice; (10) reviewing the case file and investigative file in preparation for drafting and editing the Notice; (11) executing the certificate of merit supporting the Notice; and (12) drafting, finalizing, and issuing the Notice, including perfecting service on all public enforcers and alleged violators. The time attributable to the notice stage of this enforcement action is found in Category II of Exhibit B. 20.3 “Category III: Litigation Fees” are recorded by TCG employees and contractors for all activities from the expiration of a notice to resolution of the matter. Held’s counsel, paralegals, and clerks perform the following litigation tasks including, but not limited to: (1) reviewing the notice of violation and preparing the case file; (2) adding the matter to the firm’s calendar and calendaring the expiration of the applicable 60-day notice period; (3) reviewing. 7oo wm NO OW RB BY ON YN YY RYN NR KR KDB Be me ke oY AA KB YW H = SF © ODO IY DAH RB Bw NY letters of representation or other initial communications with a noticed entity or its defense counsel; (4) updating the firm’s contact list regarding the noticed entity and any defense counsel; (5) researching the applicable statute of limitations; (6) researching the agent for service of process of a noticed entity; (7) selecting the proper venue for the action; (8) researching, drafting, editing, reviewing, and executing the Complaint; (9) preparing the summons and civil case cover sheet; (10) updating the firm’s database with the complaint filing date; (11) coordinating and conducting the service of the complaint and summons; (12) reviewing the completed Notice and Acknowledgement of Receipt of the complaint and summons; (13) completing and preparing summons and proof of service of summons for filing with the court; (14) calendaring the responsive pleading date; (15) calendaring the first day to serve discovery; (16) drafting the confidentiality agreement; (17) exchanging information informally pursuant to the confidentiality agreement between the parties in lieu of propounding written discovery; (18) preparing and filing any case management statement. The time attributable to the litigation stage of this enforcement action is found in Category III of Exhibit B. 20.4 “Category IV: Settlement Fees” are recorded by TCG employees and contractors for activities related to the negotiation and preparation of the settlement. Held’s counsel, paralegals, and clerks perform the following settlement tasks including, but not limited to: (1) reviewing prior judgments to ensure consistency in enforcement; (2) preparing and drafting the Consent Judgment; (3) negotiating, editing, and revising provisions of the Consent Judgment with opposing counsel; (4) discussing settlement offers and demands with the client; (5) negotiating injunctive terms; (6) reviewing applicable factors for civil penalties and negotiating civil penalties; (7) negotiating attorneys’ fees and costs; (8) calendaring compliance schedules; and (9) reporting the settlement to the Attorney General. The time attributable the settlement stage of this enforcement action is found in Category IV of Exhibit B. 20.5 “Category V: Approval Fees” are recorded by TCG employees and contractors for activities required to bring the Consent Judgment before the court for approval, including, but not limited to: (1) drafting the notice of motion and motion to approve the Consent Judgment; (2) drafting the memorandum of points and authorities in support of the motion to EE ee 8 DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTapprove; (3) drafting the attorney’s supporting declaration; (4) preparing an affidavit of compliance with pertinent regulations; (5) service of the motion on defendant(s) and the Attomey General; and (6) calendaring all briefing deadlines and hearings. The time attributable to the judicial approval of stage of this enforcement action is found in Category V of Exhibit B. It is notable that the time billed to the Approval category of Exhibit B does not include time to be incurred reviewing and responding to concerns and/or objections from the Attorney General, if any; appearing at the hearing on the motion to approve; preparing any requested supplemental briefing; preparation and service of a notice of entry of judgment or other ruling issued; concluding the matter with the Court, the parties and the Attorney General’s Office; attendance at any ordered compliance hearing; and monitoring compliance with the terms of the Settlement going forward. 21. — Forall categories on Exhibit B, attorneys, paralegals, staff, and other professionals and paraprofessionals are instructed to keep near-contemporaneous time records of their work. I am informed and believe that those contributing time to this case keep their records in this manner, and that the records were computerized, summarized, and reviewed. The Fee and Cost Summary attached as Exhibit B identifies each individual who recorded time to this case by their initials, the individual’s billing rate(s), the amount of time billed at each rate, and the total corresponding fees. 22. TCG investigates and prosecutes Proposition 65 actions on behalf of individual private enforcers primarily in the San Francisco Bay Area. The founding attorney of TCG, Clifford A. Chanler, confers with senior colleagues to determine reasonable billing rates for attorneys, paraprofessionals, investigators, clerks and other billable personnel on an annual basis. As a part of this process, the billing rates for TCG are compared with rates listed in third-party surveys such as the National Law Journal’s periodic Law Firm Billing Survey (“NLJ Survey”). Hourly rates for TCG attorneys and staff were most recently audited in January 2018. TCG attomey rates are established and revised with reference to the average rates charged by other law firms for that attorney’s class. Most influential are the rates of those firms that litigate Proposition 65 cases, as those rates tend to fall within the same geographic and legal practice see EEE EEE Ee - oo ee : . 9 DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTareas. Such rates are viewed as a benchmark of reasonableness in this specialized practice area. In addition, TCG considers those rates approved by trial courts in Proposition 65 settlements as a further benchmark of reasonableness. 23. Historically, the established rates of TCG attorneys are below the rates charged by firms operating in the same geographic and legal practice areas. Moreover, TCG’s billing rates have historically been at or below the national and California average billing rates for attorneys of the same class. .TCG’s highest hourly rates have consistently been more than $100 per hour less than the highest rates billed by partners and associates of firms operating in the same legal and geographic practice areas, as reported in the NLJ Survey. Those law firms listed in the NLJ Survey that represent opposing parties in Proposition 65 cases bill at rates consistently above TCG’s highest hourly rates. 24. Most recently, TCG compared its associate rates with the 2016 rates published in the 2017 NLJ Survey. TCG uses these rates to assess the reasonableness of the rates billed. This showed that TCG rates at the time were, and likely are, commensurate with, and in most cases below, the published rates billed by attorneys of the same class. 25. The work of TCG staff investigators is billed at rates between $120 and $300 for the calendar year 2018, and was between $115 and $295 for the calendar year 2017. The work of the paraprofessionals and law clerks is billed at rates between $130 and $315 for the calendar year 2018, and was between $120 and $305 per hour for the calendar year 2017. TCG’s Director of Investigations and Manager of Investigations respectively hourly rates are between $450 and $315 for the calendar year 2018, and were $450 and $310 for 2017. It is TCG’s policy to make every effort to utilize the attorney or staff person at the lowest billing rate available to capably handle any given task. 26. 1am also informed and believe that in some Proposition 65 cases, judges and arbitrators alike have awarded a multiplier of attorney fees to compensate for, among other things, the contingent nature of the legal work, the difficulty of the case, the delayed reimbursement of fees, and the assumption of initial cost outlays. These multipliers have ranged from 1.25 to 1.75, which have enhanced the fee award by 25% to 75%. While Held feels that such a multiplier 10 DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTwould be appropriate in this case, Held and his counsel are not seeking such a fee enhancement in the interest of finalizing this settlement. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this * day of August 2018, at Berkeley, California. ANTHONY E. HELD, Ph.D. P.E. i DECLARATION ISO MOTION TO APPROVE PROPOSITION 65 SETTLEMENT & CONSENT JUDGMENTEXHIBIT Awpe w HN Laralei $. Paras, State Bar No. 203319 THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710-2565 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 laralei @chanler.com Attorneys for Plaintiff ANTHONY E. HELD, PH.D., P.E. Jay W. Connolly, State Bar No. 114725 Seyfarth Shaw LLP 560 Mission Street, 31 Floor San Francisco, CA 94105-2930 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant TRACTOR SUPPLY COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ANTHONY E. HELD, PH.D., P.E., Case No. CGC-18-566691 Plaintiff, [PROPOSED] ; CONSENT JUDGMENT v. | (Health & Safety Code § 25249.6 ef seq., TRACTOR SUPPLY COMPANY, | & Cal. Code Civ. Proc. § 664.6) Defendant. |CoN A WwW eB WN / 1. INTRODUCTION 1.1. Parties This Consent Judgment is entered into by and between Anthony E. Held, Ph.D., P.E. (“Held”) and Tractor Supply Company (“TSC”), with Held and TSC each individually referred to as a “Party” and collectively as the “Parties.” 1.2 Plaintiff Held is an individual residing in the State of California who seeks to promote awareness of exposures to toxic chemicals and to improve human health by reducing or eliminating hazardou: substances used in consumer products. 1.3 Defendant TSC employs ten or more individuals and is alleged to be a person in the course of doing business for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986, Californi Health & Safety Code § 25249.5 et seq. (“Proposition 65”). 1.4 General Allegations Held alleges that TSC manufactured, imported, distributed, offered for sale and/or sold in or into California sprayer hoses containing Lead without providing consumers or other individuals residing in California the clear and reasonable warning that he alleges is required under Proposition 65. Lead is listed pursuant to Proposition 65 as a chemical known to the State of California to cause birth defects and other reproductive harm. 1.5 Products Description ia The “Products” covered by this Consent Judgment are defined as sprayer hoses containing Lead that are manufactured, imported, distributed and offered for sale or otherwise sold, directly or | limited to, the GroundWork 1/2 Gallon Pump Sprayer, #1093696, UPC #7 49394 08650 3. 1.6 Notice of Violation : indirectly, in or into California by TSC as a component of its sprayer products including, but not | | | | | On November 20, 2017, Held served TSC and the requisite public enforcement agencies with — a “60-Day Notice of Violation” (“Notice”) alleging that TSC violated Proposition 65 by failing to warn customers and consumers in California of their alleged exposure to Lead in the Products at or CONSENT JUDGMENTSom YA DAH BRB WN San GS 2S 17 18 19 20 21 22 23 | 2. INJUNCTIVE RELIEF: REFORMULATION AND WARNING 24 25 26 27 28 above levels requiring a warning under Proposition 65. No public enforcer has commenced and is diligently prosecuting an action to enforce the violations alleged in the Notice. 1.7 Complaint On May 21, 2018, no public enforcer having commenced prosecution of the allegations set forth in the Notice, Held filed the instant action (“Complaint”) for the alleged violations of Proposition 65 that are the subject of the Notice. 1.8 No Admission TSC denies the material, factual, and legal allegations in the Notice and Complaint, and maintains that all products it has manufactured, imported, distributed, shipped, sold and/or offered for sale in California, including the Products, have been and are safe and in compliance with all laws. Nothing in this Consent Judgment shall be construed as, nor shall compliance with this Consent Judgment constitute or be construed as, an admission by TSC of any allegation, fact, finding, conclusion, issue of Jaw, or violation of law, such being specifically denied by TSC. This Section shall not, however, diminish or otherwise affect TSC’s obligations, responsibilities, and duties under this Consent Judgment. 19 Jurisdiction For purposes of this Consent Judgment only, the Parties stipulate that this Court has jurisdiction over TSC as to the allegations in the Complaint, that venue is proper in the City and County of San Francisco, and that the Court has jurisdiction to enter and enforce the provisions of this Consent Judgment pursuant to Proposition 65 and Code of Civil Procedure § 664.6. 1.10 Effective Date For purposes of this Consent Judgment, the term “Effective Date” means the date on which the Court grants the motion for approval of the Consent Judgment contemplated by Section 11 2.1 Reformulation Commitment Commencing on the Effective Date and continuing thereafter, TSC shall only manufacture | for sale, purchase for sale, or import for sale in California, Products that are Reformulated Products as defined by Section 2.2, or Products that are labeled with a clear and reasonable warning as set CONSENT JUDGMENTWON | forth under Section 2.3. 2.2 Reformulation Standard For the purposes of this Consent Judgment, “Reformulated Products” are defined as Products | that contain no more than 90 parts per million (0.009%) Lead content when sampled and analyzed | | | pursuant to EPA testing methodologies 3050B and 6010B; and (c) yield a result of no more than 1.0 micrograms of Lead when sampled according to NIOSH 9100 protocol and analyzed according to EPA 6010B. In addition to the above test methodologies, the Parties may use equivalent methodologies utilized by a state or federal agency to determine Lead content in a solid substance. 2.3. Clear and Reasonable Warnings Commencing on the Effective Date and continuing thereafter, all Products TSC sells and/or distributes for sale in California which do not qualify as Reformulated Products, will bear a clear and reasonable warning pursuant to this Section. TSC further agrees that the warning will be prominently | placed with such conspicuousness when compared with other words, statements, designs or devices | as to render it likely to be read and understood by an ordinary individual under customary conditions of use. | For purposes of this Consent Judgment, a clear and reasonable warning for the Products shall | consist of a warning affixed to the packaging, label, tag, or directly to a Product sold in California ) | and containing one of the following statements: I 4. WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov l ! OR 4. WARNING: This product can expose you to chemicals | including Lead, which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information | go to www.P6SWarnings.ca.gov Pursuant to Health and Safety Code § 25603(a)(1), the warning symbol that accompanies the warning language may be printed in black and white where the sign, label, or shelf tag for the product | is not printed using the color yellow. Hf Hl “CONSENT JUDGMENTBR wb NV 27 28 entered pursuant to the terms of this Consent Judgment. For purposes of this Consent Judgment, a clear and reasonable warning for Products manufactured prior to August 30, 2018, may also consist of a warning affixed to the packaging, label, tag, or directly to a Product sold in California and containing the following statement: WARNING: This product contains chemicals known to the State of California to cause cancer, birth defects or other reproductive harm. 3. MONETARY SETTLEMENT TERMS 3.1 Civil Penalty Payments Pursuant to Health and Safety Code § 25249.7(b)(2), and in settlement of all claims alleged in the Notice or referred to in this Consent Judgment, TSC agrees to pay a total of $11,750 in civil penalties. The penalty payment will be allocated in accordance with California Health and Safety Code § 25249.12(c)(1) & (d), with 75% of the penalty amount paid to the California Office of Environmental Health Hazard Assessment (“OEHHA”) and the remaining 25% of the penalty amount retained by Held. TSC will deliver its payment within five business (5) days of receipt by TSC of copies of the order approving this Consent Judgment and the Judgment entered pursuant to the terms of this Consent Judgment in two checks for the following amounts made payable to: (a) “OEHHA” in the amount of $8,812.50; and (b) “Anthony Held, Client Trust Account” in the amount of $2,937.50. Held’s counsel shall be responsible for delivering OEHHA’s portion of the penalties paid under this Consent Judgment. 3.2 Attorneys’ Fees and Costs | The Parties reached an accord on the compensation due to Held and his counsel under | general contract principles and the private attorney general doctrine codified at Code of Civil Procedure § 1021.5 for all work performed in this matter. TSC agrees to pay $38,250 to Held and his counsel for all fees and costs incurred investigating, bringing this matter to the attention of TSC’s management, and negotiating a settlement that provides a significant public benefit. TSC’s payment shall be delivered in the form of a check payable to “The Chanler Group” within five business (5) days of receipt by TSC of copies of the order approving this Consent Judgment and the Judgment CONSENT JUDGMENTwk BN wo wm I A 3.3. Payment Address All payments under this Consent Judgment shall be delivered to: The Chanler Group Attn: Proposition 65 Controller 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710 4. CLAIMS COVERED AND RELEASED 4.1 Held’s Release of Proposition 65 Claims Held, acting on his own behalf and in the public interest, releases TSC, its parents, subsidiaries, predecessors and successors in interest, affiliated entities under common ownership, and their directors, officers, employees, agents, shareholders, partners, members and attorneys (“Releasees”), and each entity to whom TSC directly or indirectly distributes or sells the Products, including, but not limited, TSC’s downstream distributors, wholesalers, customers, retailers, franchisees, cooperative members, licensors and licensees, and their owners, directors, officers, agents, principals, employees, attorneys, insurers, accountants, predecessors, successors, and assigns (“Downstream Releasees”) from any and all claims that were or could have been asserted by Held, his past and current agents, principals, employees, insurers, accountants, entities under his ownership or direction, representatives, attorneys, successors, and/or assignees (“Releasors”) under Proposition 65 for failure to warn about alleged exposures to Lead in the Products manufactured, imported, distributed, offered for sale and/or sold in or into California by TSC, Releasees, and/or Downstream Releasees on or before the Effective Date, as alleged in the Notice. Compliance with the terms of this Consent Judgment constitutes compliance with Proposition 65 with respect to exposures to Lead from the Products. 4.2 Held’s Individual Release of Claims In further consideration of the promises and agreements herein contained, Held, on behalf of himself, and Releasors, waives any and all rights that he may have to institute or participate in, directly or indirectly, any form of legal action against TSC, Releasees or Downstream Releasees, and releases TSC, Releasees, and Downstream Releasees from, without limitation, all claims, actions, and causes of action, in law and in equity, all suits, liabilities, demands, obligations, CONSENT JUDGMENTdamages, costs, fines, penalties, losses, or expenses (inchiding, but not limited to, investigation fees, expert fees, and attorneys’ fees), that were asserted, or that could have been asserted, against TSC, Releasees or Downstream Releasees for any alleged violations of Proposition 65, or any other alleged violations of statutory or common law, arising from alleged exposures to Lead in the Products sold by TSC before the Effective Date (collectively “claims”). 4.3 TSC’s Release of Held TSC, on its own behalf, and on behalf of its past and current agents, representatives, attorneys, successors, and/or assignees, hereby waives any and all claims against Held and his attorneys and other representatives, for any and all actions taken or statements made by Held and his attorneys and other representatives, whether in the course of investigating claims articulated in the Notice, otherwise seeking to enforce Proposition 65 against it in this matter, or regarding the Products. 4.4 Mutual Release of Known and Unknown Claims It is possible that other claims not known to the Parties arising out of the facts alleged in the Notice and relating to the Products sold by TSC before the Effective Date will develop or be discovered. Held, on behalf of himself and Releasors, in his individual capacity only and not in his representative capacity, and TSC, each acknowledge that this release is expressly intended to cover and include all such claims, including all rights of action therefor, and further acknowledge that the claims released in Sections 4.1, 4.2 and 4.3 may include unknown claims, and nevertheless waive California Civil Code § 1542 as to any such unknown claims arising out of the facts alleged in the Notice and relating to the Products sold by TSC before the Effective Date. California Civil Code § 1542 reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. The Parties acknowledge and understand the significance and consequences of this specific waiver of | | California Civil Code § 1542 arising out of the facts alleged in the Notice and relating to the Products | sold by TSC before the Effective Date. CONSENT JUDGMENTwe WN 5. COURT APPROVAL | This Consent Judgment is not effective until it is approved and entered by the Court and shall be null and void if, for any reason, it is not approved and entered by the Court within one year after | it has been fully executed by the Parties, or by such additional time as the Parties may agree to in | writing. 6. SEVERABILITY If, subsequent to the Court’s approval and entry of this Consent Judgment as a judgment, any | of the provisions of this Consent Judgment are deemed by a court to be unenforceable, the validity of | 27 28 the remaining provisions shall not be adversely affected. 7. GOVERNING LAW The terms of this Consent Judgment shall be governed by the and apply within the State of California. In the event that Proposition 65 is repealed or is otherwise rendered inapplicable by reason of law generally, or as to Lead or as to the Products, then TSC may provide written notice to Held of any asserted change in the law, or it: Products, and shall have no further injunctive obligations pursuant to respect to, and to the extent that, TSC or the Products are so affected. 8 NOTICE Unless specified herein, all correspondence and notice required to be provided pursuant to this Consent Judgment shall be in writing and sent by: (a) personal delivery; (b) first-class, registered or certified mail, return receipt requested; or (c) a recognized overnig other at the following addresses: For FSC: Karen Austin For Held: Vice President, Legal & Compliance Tractor Supply Company 5401 Virginia Way Brentwood, TN 37027 With a copy to: Jay W. Connolly Seyfarth Shaw LLP 560 Mission Street, 31st Floor San Francisco, CA 94105-2930 CONSENT JUDGMENT laws of the State of California s applicability to TSC or the this Consent Judgment with ht courier on any Party by the Proposition 65 Coordinator The Chanler Group 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710BR WON Any Party may, from time to time, specify in writing to the other a change of address to which all notices and other communications shall be sent. 9. COUNTERPARTS: FACSIMILE/PDF SIGNATURES This Consent Judgment may be executed in counterparts and by facsimile or portable document format (PDF) signature, each of which shall be deemed an original, and all of which, when taken together, shal] constitute one and the same document. 10. COMPLIANCE WITH HEALTH & SAFETY CODE § 25249.7(1) Held and his attorneys agree to comply with the reporting form requirements referenced in California Health and Safety Code § 25249.7(f). The Parties further acknowledge that, pursuant to Health and Safety Code § 25249.7(f), a noticed motion is required to obtain judicial approval of the settlement. In furtherance of obtaining such approval, the Parties agree to mutually employ their obtain judicial approval of their settlement in a timely manner. For purposes of this Section, “best | best efforts, and those of their counsel, to support the entry of this agreement as a judgment, and to efforts” shall include, at a minimum, supporting the motion. 11. MODIFICATION This Consent Judgment may be modified only by: (i) a written agreement of the Parties and entry of a modified consent judgment by the Court thereon; or (ii) a successful motion or application of any Party, and the entry of a modified consent judgment by the Court thereon. 12. ENTIRE AGREEMENT This Consent Judgment contains the sole and entire agreement of the Parties and any and all prior negotiations and understandings related hereto shall be deemed to have been merged within it. No representations or terms of agreement other than those contained herein exist or have been made by any Party with respect to the other Party or the subject matter hereof. ‘ii fit ttt fit vit CONSENT JUDGMENTeo oe YN AH B® wWwKH n= 5 13 13. AUTHORIZATION The undersigned are authorized to execute this Consent Judgment on behalf of their respective Parties and have read, understood, and agreed to all of the terms and conditions of this Consent Judgment. AGREED TO: Date:_8/22/2018.. AGREED TO: Date: CLI - AF aie 7 ~/} foe ot has - By: of - Karen Austin, Vice President, Legal & Compliance Tractor Supply Company “CONSENT UDGMENT jeEXHIBIT B-FEE AND COST SUMMARY: TRACTOR SUPPLY COMPANY SUMMARY Category |: Investigation Fees | $ 15,657.00 | Category Il: Notice Fees | $ 5,235.00 | Category Ill: Litigation Fees 1 $ 5,234.00 Category IV: Settlement Fees is 13,466.00 | Category V: Approval Fees Ts 5,705.00 | Category VI: Associated Costs 7 ee fs 1,206.05 | Total:| $ 46,503.05 | CATEGORY I: INVESTIGATION Field and In-Office Investigation summary for responsible entities. Travel to/from retail locations in Napa, Solano, Amador, San Joaquin, Stanislaus, Yolo, and Contra Costa counties to investigate and inspect evidence; record and document visit and purchase transactions; conduct internet investigation to locate ecommerce websites, determine product availability and secure evidence; complete reporting and chain of custody requirements; identify, gather and prepare financial Staff | Year Rate Hours Fees AZR | 2016 $140 29 $ 406.00 AZR 2017 $145 9.1 \s 1,319.50 MSL . 2017 $195 67 I$ 1,306.50 MSL 2018 $200 4 | $ 1,820.00 Is Subtotal: $ Held v. Tractor Supply Company, et al. Case No. CGC-18-566691 Page 1 of 4Intake Process and Evidence Documentation Review evidence and field documentation; perform intake procedure for each unit of evidence including completion of reporting requirements, evaluation of attributes/characteristics such as component parts/number of pieces, product design, color, decoration, flexibility, surface and substrate texture, thickness, and odor/scent, and digital photo log; conduct research to locate all responsible parties; perform quality control of comprehensive report for each unit of evidence; review and prepare case narratives and summaries to support litigation, Staff Year Rate Hours Fees BSD 2016 $450 0.5 $ 225.00 1 BSD 2017 $450 2.4 _{$ 1,080.00 BSD 2018 $450 24 is 945.00 CHT 2016 $115 2.9 $ 333.50 DIE 2017 §120 2.9 $ 348.00 KMK 2018 $120 5.3 $ 636.00 RR 2017 $130 6.9 is 897.00 RR 2018 $135 7 9.0 $ 1,215.00 wwe { 2017. —- $255 2.0 1 § 510.00 wwe 2018 $260 0.5 $ 130.00 nal aa ets] Laboratory Testing and X-Ray Fluorescence Analysis Preparation of evidence and documentation for transfer of custody to laboratory; communications with laboratory, attorneys, experts and/or clients to ensure appropriate test methodology and analysis of evidence for lead content; complete post-testing reporting requirements, quality control and custody of evidence; utilize X-ray Fluorescence device to analyze evidence and record findings, pre-standardization of apparatus and preparation of report. Staff Year Rate Hours Fees BSD 2016 $450 0.9 $ 405.00 BSD | 2017 $450 06 |s 270.00 cL [ 2016 | __._ $300 0.5 $ 150.00 cL 2017 $310 1.0 $ 310.00 JNR 2016 [$140 0.6 $ 84.00 JINR 2017 $145 19 § 275.50 NG 2016 $285 2.6 s 741,00 JVG 2017 $295 3.4 Ts 1,003.00 r KMS 2017 $445 | 2.0 $ 290.00 KMS | 2018 $150 19 $ 285.00 ‘Subtotal: 15.4 $ 3,813.50 Held v, Tractor Supply Company, et al. Case No. CGC-18-566691 Page 2 of 4CATEGORY Il: 60-DAY NOTICE Prepare, review, revise and serve the 60-Day Notice of Violation to all applicable parties; develop in-depth field and in-office investigation plan to inspect, assess and secure evidence during pre-notice period through resolution of case; participate in ongoing communications between expert, attorneys, laboratories and/or client to provide investigation support, reporting and laboratory findings; review and assemble pre- notice digital case file and perform periodic updates. Staff Year Rate Hours BO 2017 $555 14 $ BSD 2017 $450 24 $ 1,080.00 BSD 2018 1 $450 15 $ 675.00 cL [ 2017 $310 5.0 $1,550.00 JVG 2017 $295 1.0 7 $ 295.00 RR 2017 $130 0.4 y $ oe 52.00 wwe 2018 $260 $ 806,00 Subtotal; $ 5,235.00 CATEGORY Ill: LITIGATION Complaint Draft, file and serve complaint; comply with Attorney General reporting requirements. Staff Rate 2,288.00 200,00 Subtotal: 48 $ 2,488.00 Case Management Initial communications with defense counsel; review and discuss case status. Rate Hours $715 $ 1,072.50 | RAC 2018 $315 02 $ 63.00 SMP 2018 $125 0.3 $ 37.50 Subtotal: 2.0 $ 1,173.00 Informal Discovery Engage in the confidential exchange of information with defendant in lieu of formal discovery. | Rate Subtotal: Held v. Tractor Supply Company, et al. Case No. CGC-18-566691 Page 3 of 4CATEGORY IV: SETTLEMENT Settlement Negotiations the client. Negotiate the settlement agreement with defense counsel and discuss settlement offers and demands with Staff $690 276.00 LSP 2018 $715 12.0 $ 8,580.00 Subtotal: 12.4 $ 8,856.00 Consent Judgment Draft, edit and finalize the settlement agreement; comply with Attorney General reporting requirements, ECR 2018 $300 0.2 $ 60.00 EER 2018 $130 3.1 $ 403.00 isp 2018 $715 5.8 $ 4,147.00 CATEGORY V: MOTION TO APPROVE Draft, file and serve motion to approve settlement; prepare fee and cost summary chart. Staff Year Rate Hours Fees ECR 2018 $300 : $ 300.00 EER 2018 $130 $ 130.00 LBG 2018 $200 $ 400.00 LSP 2018 $715 $s 2,860.00 RAC 2018 “$315 $ 1,890.00 SMP 2018 $125 $ 125.00 Subtotal: $ 5,705.00 CATEGORY VI; ASSOCIATED COSTS Experts: Toxicologist $ 30.00 | Filing Fees: Complaint $ 495.00 Motion to Approve $ 60.00 Investigation: Business and Financial Reports 5 34,00 E