Englander and Vinocur v. Kmart Corporation

Posted: 10/14/2013  browse the case archive

Citizen enforcers Laurence Vinocur and Peter Englander’s allegations against defendant Kmart Corporation (“Kmart”) in the case Englander, et al. v. Cheyenne Industries, LLC, et al. were resolved on October 14, 2013, when the parties executed a Consent Judgment.  In this matter, Englander and Vinocur filed claims against thirteen furniture companies for Proposition 65 violations, including Kmart.  They alleged that Kmart sold upholstered furniture with foam padding containing tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) and/or tris(2-chloroethyl) phosphate (“TCEP”) in the State of California without providing the requisite health hazard warnings.

As part of the settlement, Kmart agreed not to sell any furniture in California after March 31, 2014, unless the furniture contains no more than 25 parts per million each of TDCPP and TCEP when analyzed using state or federally approved testing methodologies. Additionally, Kmart agreed to provide its vendors with the reformulation standards by October 15, 2013, and instruct them to provide furniture that complies expeditiously.  Furniture currently existing in Kmart’s inventory may be sold with Proposition 65 warnings provided.  Should Kmart provide written certification that all furniture sold in California after November 1, 2013 qualifies as reformulated, Vinocur and Englander agreed to waive a portion of the civil fine.  Additionally, Vinocur and Englander provided a credit for extending reformulation, among other credits available, if Kmart should provide written certification that all furniture sold in California also contains no more  than 25 parts per million of tris(2,3-dibromopropyl) phosphate (“TDBPP”) by March 15, 2014.

The Consent Judgment requires settlement payments of $98,000, divided therein between civil penalties, 75% of which are paid to California’s Office of Environmental Health Hazard Assessment, and compensation to whistleblowers Vinocur and Englander and their counsel for their successful enforcement of this matter in the public interest.

Download PDF

It appears your Web browser is not configured to display PDF files. No worries, just click here to download the PDF file.