Englander v. Costco Wholesale Corporation

In the enforcement action Englander v. Skyline Furniture Mfg., Inc., et al., citizen enforcer Peter Englander’s allegations against defendant Costco Wholesale Corporation (“Costco”) were resolved on May 14, 2014, when the parties executed a Consent Judgment.  In this matter, Englander alleged that Costco sold upholstered furniture products with foam padding containing the flame retardant tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) and 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, Costco agreed not to sell any covered furniture in California after March 31, 2014, unless the furniture contains no detectable amount of tris(2-chloroethyl) phosphate (“TCEP”) and TDCPP and no more than 1,000 parts per million of DEHP, BBP, and DBP when analyzed using state or federally approved testing methodologies.  Additionally, Costco agreed to provide its vendors with the reformulation standards by April 15, 2014, and instruct them to provide furniture that complies expeditiously.  Furniture currently existing in Costco’s inventory must be sold with Proposition 65 warnings provided.  Should Costco provide written certification that all furniture sold in California after May 15, 2014 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 Costco should provide written certification that all furniture sold in California after August 30, 2014, 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 $95,000, 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.