A couple of weeks ago I wrote about the very disturbing legal war being waged by the Consumer Product Safety Commission against Craig Zucker, CEO of a company that made Buckyballs, the adult magnetic-balls desk toy. After the CPSC decided to ban his product, Zucker fought back in the arena of public opinion, aiming satirical barbs at the commission and individual commissioners. CPSC then proceeded to pull him into the action personally as a party, seeking (on the basis of legal theories rarely if ever used in the past) to tag him with recall liability that the agency estimated at $57 million.
This weekend the Wall Street Journal came out with a big feature on the case, including an interview with Zucker by the Journal’s Sohrab Ahmari. Some highlights:
* At a time when sale of Buckyballs was still quite lawful pending adjudication, “and before Maxfield & Oberton [Zucker’s firm] had a chance to tell its side of the story,” the agency sent letters to major retailers asking that Buckyballs be pulled from shelves; most did, wishing to avoid trouble.
* The “responsible corporate officer” doctrine, which the CPSC cites as grounds for holding Zucker personally liable, has been very seldom invoked in the past, and the circumstances here (including the lack of reference to officer liability in the CPSC’s enabling statute) suggest that the Buckyballs case doesn’t fit. [More on that poor fit in this recent paper, previously linked in this space.]
* As for motives to go after Mr. Zucker, he provided a lot of them. During his attempt to fight the ban, his online “ads pointed out how, under the commission’s reasoning, everything from coconuts (‘tasty fruit or deadly sky ballistic?’) to stairways (‘are they really worth the risk?’) to hot dogs (‘delicious but deadly’) could be banned. Commission staff were challenged to debate Mr. Zucker, and consumers were invited to call Commissioner Inez Tenenbaum’s ‘psychic hotline’ to find out how it was that ‘the vote to sue our company was presented to the Commissioners on July 23rd, a day before our Corrective Action Plan was to be submitted.'” The thing is, you’d think, or hope, that the First Amendment to the Constitution would protect the right of a regulated party to talk back in this way, even disrespectfully.
Buckyballs were a Godsend to our son, Johnny, last summer as he laid in a hospital bed recovering from a serious brain injury. He couldn’t watch TV or look at any type of screen because it hurt his eyes too much. He couldn’t read because it gave him headaches. But he could play with the Buckyballs that we purchased at the HOSPITAL gift store. They made a long stay in the ICU much more tolerable. Ironically, the same week he was in the hospital, an overreaching government agency banned the sales of Buckyballs — even to adults. Read this interview to get the full story on the Buckyballs saga. This is what happens when personal injury lawyers and their allies make the rules. We slowly lose our freedoms.
Buckyballs are highly popular supermagnetic desktop toys for adults and labeled against use by kids. Nonetheless, some kids obtain the tiny balls and swallow them, with harmful or even lethal results. The Consumer Product Safety Commission has responded with an unusually aggressive show of legal muscle to force the product off the market: while suing the manufacturer, it strong-armed retailers into suspending Buckyball sales, thus cutting off the manufacturer’s revenue while a court decides whether the commission had an adequate basis in law and fact for its action. [Nick Farr, Abnormal Use; manufacturer statement; Time; ABA Journal; Michelle Malkin; Point of Law]
More: “CPSC wants to put a child-proof cap on your life.” [@radleybalko]
- Administration tees up massively expensive regulation docket for after election [Sam Batkins, American Action Forum]
- More on FedEx’s resistance to fed demands that it snoop in boxes [WSJ Law Blog, earlier]
- Ethics war escalates between Cuomo and U.S. Attorney Preet Bharara, but is sniping in press suitable role for prosecutor? [New York Post, Ira Stoll]
- “Mom Hires Craigslist Driver for 9-Year-Old Son, Gets Thrown in Jail” [Lenore Skenazy]
- One-way fee shifts, available to prevailing plaintiffs but not defendants: why aren’t they more controversial? [New Jersey Lawsuit Reform Watch]
- Water shutoff woes sprang from Detroit’s “pay-if-you-want culture” [Nolan Finley, Detroit News]
- “CPSC Still Trying to Crush Small Round Magnet Toys; Last Surviving American Seller Zen Magnets Fights Back” [Brian Doherty]
According to the Consumer Product Safety Commission:
The U.S. Consumer Product Safety Commission (CPSC) is announcing a voluntary recall of all Buckyballs and Buckycubes. … Refunds will be processed through a Recall Trust that will be funded by Mr. Zucker, but created and controlled by CPSC.
According to Zucker in a press release:
The settlement amount is less than 1% of the original $57 million that the CPSC estimated a recall to cost and is not a fine or penalty….
In February of 2013, the CPSC took unprecedented action by naming Zucker personally under the controversial Park Doctrine as an officer of the company that sold Buckyballs®.
This happened after Zucker, in what was itself an unusual if not unprecedented stand for an executive at a firm subject to CPSC regulation, took a vigorous public stand defending his product against the commission’s recall demands and even employed jokes and caricatures to make fun of CPSC commissioners. Earlier coverage here. More: Nancy Nord.