Englander v. J.C. Penney Corporation, Inc.

Citizen enforcer Peter Englander’s allegations against defendant J.C. Penney Corporation, Inc. (“J.C. Penney”) were resolved on October 7, 2013, when the parties executed a Consent Judgment.  In this matter, Englander alleged that J.C. Penney sold upholstered furniture with foam padding containing tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) in the State of California without providing the requisite health hazard warnings.

As part of the settlement, J.C. Penney agreed not to sell any of the furniture in California after March 31, 2014, unless the furniture contains no more than 25 parts per million of TDCPP when analyzed using state or federally approved testing methodologies. Additionally, J.C. Penney agreed to provide its vendors with the reformulation standards by October 15, 2013, and instruct them to provide products that comply expeditiously.  Furniture currently existing in J.C. Penney’s inventory may be sold with Proposition 65 warnings provided.  Should J.C. Penney provide written certification that all products sold in California after November 1, 2013 qualify 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 J.C. Penney should provide written certification that all furniture sold in California after March 15, 2014, contains no detectable amounts of tris(2-chloroethyl) phosphate (“TCEP”) and tris(2,3-dibromopropyl)phosphate (“TDBPP”) in addition to satisfying the TDCPP requirement.

The Consent Judgment requires settlement payments of $78,000, 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.