Englander v. COA, Inc.

In the enforcement action Englander v. Acme Furniture Industry, Inc., et al., citizen enforcer Peter Englander’s allegations against defendant COA, Inc. (“COA”) were resolved on October 24, 2014, when the parties executed a Consent Judgment.  In this matter, Englander alleged that COA sold upholstered furniture including ottomans and stools with foam padding containing the flame retardants tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) and tris(2-chloroethyl) phosphate (“TCEP”) and stools with vinyl/PVC upholstery containing the phthalate chemical di(2-ethylhexyl)phthalate (“DEHP”) in the State of California without providing the requisite health hazard warnings.

As part of the settlement, COA agreed not to sell any padded upholstered furniture or stools with vinyl/PVC upholstery in California after March 15, 2015, unless the furniture contains no detectable amount of TDCPP and TCEP and no more than 1,000 parts per million of DEHP, butyl benzyl phthalate, and di-n-butyl phthalate when analyzed using state or federally approved testing methodologies.  Additionally, COA agreed to provide its vendors with the reformulation standards by January 1, 2015, and instruct them to provide furniture that complies expeditiously.  Furniture currently existing in COA’s inventory must be sold with Proposition 65 warnings provided.  Should COA accelerate the furniture reformulation and provide written certification that all furniture sold in California after January 31, 2015 qualifies as reformulated, Englander agreed to waive a portion of the civil fine.  Additionally, Englander provided a credit for extending the breadth of reformulation, among other credits available, if COA should provide written certification that all furniture sold in California after March 31, 2015, contains no detectable amounts of tris(2,3-dibromopropyl)phosphate (“TDBPP”) in addition to satisfying the TCEP and TDCPP requirements.

The Consent Judgment requires settlement payments of $121,500, divided therein between civil penalties, 75% of which are paid to California’s Office of Environmental Health Hazard Assessment, and compensation to whistleblower Englander and his counsel for their successful enforcement of this matter in the public interest.