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LAWYER LATCHES ONTO CALIFORNIA LAW TO SUCCEED AT BOUNTY-HUNTER TACTICS Man Among Band of Litigators Striking Gold by Blanketing Business World with Lawsuits By Monte Morin, Los Angeles Times, Reported in Las Vegas Review Journal, 11-01-02, P. 26A WINNERS FEEL LIKE LOSERS IN CASE Los Angeles - Last year, attorney Morse Mehrban and plaintiff Consumer Cause, Inc., filed suit against 34 food and herbal supplement manufacturers, contending that they failed to warn consumers that vitamin supplements and cooking ingredients contained alcohol. Proposition 65, a California law voters passed in 1986, requires that alcoholic beverages bear labels warning that they can be harmful to pregnant women. The supplement companies said that the recommended dose for their products are so small, measured with a teaspoon of eye dropper, that someone would have to consume several bottles in one sitting to ingest enough alcohol to harm an unborn baby. A judge dismissed the suit, saying it was "absurd" to contend that such products require a Proposition 65 warning. But the companies didn't walk away feeling like winners. Their attorney says their legal fees were more than $200,000. - LOS ANGELES TIMES LOS ANGELES - They've sued bowling alleys, alleging that "ladies night" discounts are unfair to men. They've sued software manufacturers on the ground that their bulky packaging tricks consumers into thinking they're getting more than a small computer disk. They've sued makers of herbal remedies, contending that tiny bottles of extract are alcoholic beverages potentially harmful to unborn babies. A small band of litigators has struck gold in the fine print of laws intended to protect Californians from hazardous chemicals, discrimination and business scams. They blanket the business world with hundreds of lawsuits at a time, often making claims that appear fanciful, even absurd. Most of the cases never get to trial. The lawyers make their money on settlements paid by defendants who just want to make the suits go away. The amounts typically are modest, from $2,000 to $50,000, but they add up. Los Angeles attorney Morse Mehrban helped pioneer the form of litigation. He describes himself as a "bounty hunter," and his prey consists of hotel owners, dentists and purveyors of aromatic oils, medical implants and many other products. "It's my job to go out there and hunt these people down," he said. A group of Los Angeles-area hardware stores paid Mehrban $27,500 last year to settle a lawsuit claiming that discarded metal filings from key duplicating machines posed a threat of lead contamination. Earlier this year, Mehrban filed 400 separate claims against makers of candles, charging that the common table ornaments emit toxic fumes. He's currently in court with more than a dozen manufacturers and retailers of artificial fireplace logs, which he claims emit toxic fumes when lighted. He once sued dozens of hotel chains on allegations of failing to post warnings about the hazards of cigarette smoke in lobby and pool areas. A Los Angeles judge who dismissed one of the cases, against the Miramar Sheraton, likened the lawsuit to "racketeering." Such criticism does not faze Mehrban. Though he bills his time at as much as $400 an hour and drives a Mercedes roadster, he says he's not in it for the money. "I've always been interested in leveling the playing field or everyone, especially the little guy," he said. "I take it as a personal affront when I see injustice done to people. That sense of injustice becomes your internal fuel. That's what drives me." Many of the cases filed by Mehrban and other lawyers in this specialty involve Proposition 65. The law, approved by California voters in 1986, requires businesses to warn the public about products or activities that cause exposure to hazardous chemicals. Proposition 65 is responsible for the signs seen at entrances to office buildings, parking structures and other public places stating that "Products Sold or Used on These Premises May Contain Chemicals Known to the State of California to Cause Cancer or Birth Defects." The law allows private individuals to sue companies that fail to comply. The plaintiffs need not to have suffered any personal harm. Businesses shown to have broken the law can be ordered to pay the plaintiffs' legal fees. Nonprofit consumer groups that bring suits can also collect fines from the defendants and use the money to fund future lawsuits. The number of Proposition 65 suits has increased from 50 in 1988 to more than 5,000 last year. Many are filed on behalf of nonprofit groups, some of these bill themselves as independent organizations but are closely tied to the lawyers filing the suits. Mehrban frequently sues on behalf of a nonprofit of which his mother and fiancee are officers. These types of suits typically target hundreds, occasionally thousands, of businesses at a time. "It's as if someone has gone to a catalog or to the Internet to find as many people as they can (to sue)," said Ed Weil, a deputy state attorney general involved in a crackdown on frivolous Proposition 65 cases. Weil said the mass lawsuits can be lucrative even if individual settlements are modest. "If you get 400 companies to give you $2,500 each, then you've got $1 million," he said. Handsome and trim, the 33-year-old Mehrban wears a light beard and a serious expression. Despite the fancy car, he claims to live the modest life of a consumer advocate. If he wanted to make a fortune, he said, he'd work for corporations instead of suing them. "I live in a crappy condominium in Brentwood," Mehrban said. "You know how much it costs to buy a home here? More than I can afford." "The people of California voted to approve Proposition 65," Mehrban said. "We are the manifestation of the people's will. It's like Frankenstein's monster. If you didn't want us, why did you create us?" After graduating from Southwestern University School of Law in 1993, Mehrban went into practice with two recent law school graduates. The partners saw in Proposition 65 a new avenue for civil litigation that would be both socially progressive and lucrative. Proposition 65 requires the California governor to publish and update annually a list of chemicals known to cause cancer, birth defects or other reproductive harm. Companies that make or use these substances are required to warn the public about them, with product labels, for instance, or signs posted in workplaces. The list contains more than 700 chemicals. Mehrban and his partners searched libraries and the Internet to identify products that contained the listed substances. Then they sued scores of businesses at a time, contending that their products were hazardous and required warnings. They and other attorneys also developed cases under the state's Unfair Competition Act, which forbids such practices as false advertising and price-fixing. Like Proposition 65, the act permits people to sue businesses even if they were not personally victimized by such conduct. In 1997, Mehrban sued Aroma Vera, a Los Angeles manufacturer of aromatherapy products, because an oil that was supposed to boost brain power failed to work on Mehban's mother. The manufacturer settled for $5,700 and agreed to stop making certain claims against its products. The plaintiff in many of Mehrban's suits is Consumer Cause Inc., which describes itself as a statewide advocacy group. Its mailing address is that of Mehrban's mother, Rafat Efraim, who lives in Los Angeles' upscale Brentwood district. Efraim for a time was listed on state incorporation records as the group's only officer. Mehrban said Consumer Cause now has five officers, including his mother and fiancee. He declined to identify the other officers. When Mehrban settles a Consumer Cause case, the defendant pays his fee directly. Mehrban charges up to $400 an hour for representing the nonprofit. In some cases, defendants also pay monetary "penalties" called for by Proposition 65. Consumer Cause collects these payments. In documents filed with the state, the group says it uses the money for "further Proposition 65 enforcement." In the aromatherapy case, the manufacturer's lawyer called Mehrban's mother to the witness stand during a pre-trial hearing in an effort to show that Consumer Cause was a mere front for Mehrban's legal practice. Efraim speaks only Farsi and testified through an interpreter. Asking the name of the consumer group, she replied: "Help the customers." Efraim said she did not know whether it had any other officers. Scott Pinsky, who represented Aroma Vera, later called Consumer Cause "an utter charade." Mehrban says the organization serves a valuable purpose, acting as a check on the "corporate establishment." Mehrban's methods often stir outrage, and not only among his legal adversaries. In the case involving a hotel chain that he had accused of failing to post warnings about the hazards of cigarette smoke, a Los Angeles judge was biting in his description of the lawyer's tactics. After a hearing at which he peppered Mehrban with questions about the case and where money from a settlement would go, Superior Court Judge Brett Klein dismissed the suit. Nothing that Proposition 65 lawsuits can be brought only "in the public interest," Klein said: "This case is brought in the private interest, not in the public interest." "There are many nouns that one might attempt to use, metaphorically, to describe what this case is about," the judge said. "The most appropriate metaphorical term would be 'racketeering.'" Responding to complaints from businesses, the state attorney general's office this year began reviewing Proposition 65 lawsuits in an attempt to deter frivolous ones. The law requires a plaintiff, before filing a suit, to submit a "certificate of merit" with the attorney general briefly laying out the factual basis for the case. The attorney general's office cannot throw out a lawsuit, but if it finds that a case lacks substances, the opinion holds great weight with judges, according to plaintiff's attorneys. So far this year, the attorney general has identified more than 4,000 cases statewide as lacking scientific foundation or sufficient evidence of wrongdoing. They include nearly 400 of Mehrban's cases, most involving claims that table candles emit toxic fumes and should bear warning labels. Mehrban vows to bring some of those suits to court anyway. WORKING TOGETHER TO ATTAIN FAIRNESS | ||
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