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CPSC

Last month federal district judge Claude Hilton dismissed an antitrust suit filed against rival makers of table saws by SawStop, a company that has patented a table saw with innovative safety features. “Hilton’s ruling, while a blow to SawStop, has no legal bearing on the company’s efforts to get the Consumer Product Safety Commission to require the use of their technology on most table saws sold in the U.S.” Trial lawyers at Boies Schiller and elsewhere have also filed numerous product liability suits against makers of conventional saws; many saw users prefer to go on buying conventional saws, which are much less expensive, in preference to using the SawStop system [David Frane, Tools of the Trade, background; earlier]

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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.

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March 5 roundup

by Walter Olson on March 5, 2014

  • U.S. Commission on Civil Rights commissioners Gail Heriot, Peter Kirsanow: Administration’s new policy on race and school discipline likely to make schools more chaotic [Robby Soave, Daily Caller, 2011 related, earlier here, etc.]
  • French court: fan club members suffered legally cognizable emotional damage from Michael Jackson’s death [Lowering the Bar, earlier]
  • “The Newkirk incident demonstrates why cameras in the courtroom are a bad idea” [James Taranto, includes bonus New York Times disgrace]
  • Claim: advocates stymied firearms research over most of past two decades. Accurate? [Fox News]
  • Another look at the CPSC’s war on former Buckyballs CEO Craig Zucker [Jim Epstein, Reason, earlier]
  • Chris Christie use of monitorships in white-collar prosecutions draws renewed scrutiny [New Republic, earlier]
  • In which I am included in a list with George Will and Heather Mac Donald, all very flattering etc. etc. [Charles C. W. Cooke, NRO]
  • D.C.: disbarred lawyer sat for years as workers comp judge [Washington City Paper]
  • “German home-school family won’t be deported” although Supreme Court declines to hear asylum appeal [AP; discussion in comments earlier]

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  • “Venue matters.” Enough to double value of med-mal case if filed in Baltimore city rather than suburbs? [Ron Miller] Mark Behrens and Cary Silverman on litigation tourism in Pennsylvania [TortsProf]
  • “Maybe [depositions] are like what some people say about war — vast periods of boredom interrupted by brief moments of terror.” [Steve McConnell, Drug and Device Law, also see Max Kennerly]
  • Centrality of procedure in American legal thinking dates back to Legal Realists and before [Paul McMahon, U.Penn. J. of Int'l Law/SSRN via Mass Tort Prof]
  • Company sues to challenge CPSC’s dissemination of unproven allegations about it in new public database: should judicial proceeding keep its name confidential? [Fair Warning]
  • Thesis of new Jerry Mashaw book: administrative state in U.S. long predated Progressive Era [Law and Liberty: Joseph Postell, Mike Rappaport] Relatedly, hallmark of administrative state said to be “prerogative,” i.e., power to make binding rules without new legislation [Michael Greve]
  • Lorax standing humor: even the Ninth Circuit might not have been able to help [Howard Wasserman, Prawfs]
  • “Formalism and Deference in Administrative Law” [panel at Federalist Society National Lawyers' Convention with Philip Hamburger, Kristin Hickman, Thomas Merrill, and Jide Okechuku Nzelibe, moderated by Jennifer Walker Elrod]

December 3 roundup

by Walter Olson on December 3, 2013

  • The law blog that almost brought down ObamaCare [Trevor Burrus, Cato] “In Government, Nothing Succeeds Like Failure,” public policies being hard to adjust when they go astray [Peter Schuck, HuffPo]
  • Sexual harassment claim: “Attorneys awarded more than 600 times damages in Calif. case” [Legal NewsLine]
  • KlearGear, of non-disparagement fame, reaps the online whirlwind [Popehat, Public Citizen, Volokh, earlier]
  • “What if American Exceptionalism, properly understood, really boils down to associational liberty?” [Richard Reinsch, Liberty Law] Do religious-liberty carve-outs in same-sex marriage laws go too far, not far enough, or neither? [Dale Carpenter et al. vs. Richard Garnett et al.]
  • What jury didn’t hear in qui tam award against pipemaker JM Eagle [Daniel Fisher, more]
  • Majority of appointed commissioners on Consumer Product Safety Commission is is no hurry to reduce inordinate CPSIA testing burdens, per retiring commissioner Nancy Nord (more);
  • Woman who claims to own sun says she prevailed in lawsuit brought by man who claims to own universe [Lowering the Bar]

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November 11 roundup

by Walter Olson on November 11, 2013

  • Incoming Australian attorney general: we’ll repeal race-speech laws that were used to prosecute columnist Andrew Bolt [Sydney Morning Herald, Melbourne Herald-Sun, earlier]
  • Texas sues EEOC on its criminal background check policy [Employee Screen]
  • After Eric Turkewitz criticizes $85M announced demand in Red Bull suit, comments section turns lively [NYPIAB]
  • If only Gotham’s official tourism agency acted like a tourism agency [Coyote on NYC's official war against AirBnB; Ilya Shapiro, Cato; earlier here and here, etc.]
  • “Lawmaker wants Georgia bicyclists to buy license plates” [WSB]
  • Religious liberty implications of European moves to ban infant circumcision [Eugene Kontorovich]
  • Video on CPSC’s quest for personal liability against agency-mocking Craig Zucker of Buckyballs fame [Reason TV, earlier]

Craig ZuckerWith a new “United We Ballcampaign against the Consumer Product Safety Commission (CPSC) and its Draconian enforcement action. Background here and here (& Scott Shackford, Reason).

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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.

Michigan-based commentator Bob Dorigo Jones, who has previously commented on the Buckyballs affair, wrote this on Facebook:

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.

Read the WSJ piece here. More: Clark at Popehat, Gus Hurwitz at Truth on the Market, Alexander Cohen/Daily Caller.

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August 29 roundup

by Walter Olson on August 29, 2013

I joined Scott Wolfson, communications director at the Consumer Product Safety Commission, as a guest on Angie Coiro’s “In Deep” radio show to discuss the Buckyballs case and safety regulation generally. Earlier in the same segment was ZenMagnets.com founder Shihan Qu, who is also battling the CPSC on the desk magnet issue. You can listen here. My coverage of the Buckyballs controversy is here and we also discussed a number of other noteworthy controversies including state attorneys general’s efforts to shut down the “Prescription: Coffee” mug and the status of dangerous consumer items home-produced by way of 3-D printers. CPSC Commissioner Nancy Nord’s statement on the magnet set issue is here.

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A year ago, I wrote: “It’s rare for a regulated company to mount open and disrespectful resistance to a federal regulatory agency, but that’s what the maker of BuckyBalls, the popular desktop magnetic toy, is doing in response to the Consumer Product Safety Commission’s effort to ban its product.” The maker in question had devised cheeky, sarcastic ads asking why other products with injurious potential (coconuts, hot dogs) weren’t banned on the CPSC’s logic.

One reason it’s rare to mount open and disrespectful resistance to a federal agency is that agencies have so many ways to make businesspeople’s lives unhappy. This spring, breaking new legal ground, the CPSC reached out and named CEO Craig Zucker personally as a respondent in its recall proceeding. According to a Gibson Dunn commentary,

For the first time, the CPSC is pursuing individual and personal liability against an executive for a company’s alleged violations of the Consumer Product Safety Act. Although it remains to be seen whether the CPSC will adopt this approach in other cases, at minimum, this demonstrates just how far the CPSC is willing to push the envelope.

It’s just the latest example, the law firm says, of a pattern in which “the CPSC has aggressively enforced its governing statute and regulations, repeatedly pushing the limits of its expanded authority.”

As Morrison & Foerster says in its client alert:

Despite [Buckyballs maker] Maxfield and Oberton’s aggressive publicity campaign against the CPSC, the CPSC continued to pursue its complaint. Maxfield and Oberton folded and the company dissolved in December 2012, making the complaint moot. In February 2013, the CPSC moved for leave to file a second amended complaint naming the former CEO, Craig Zucker, both individually and as an officer of Maxfield and Oberton. The CPSC requested the same relief against Zucker as it had against Maxfield and Oberton—i.e., recall, refund, and compliance reports.

While Zucker has “argued that he could not be liable as he did not personally manufacture, distribute, or sell the product at issue,” CPSC has invoked something called the responsible corporate officer doctrine, approved by the Supreme Court in U.S. v. Dotterweich (1943) and U.S. v. Park (1975), which “permits responsible corporate officers to be held liable for the actions of the corporation, even in the absence of personal guilt on the part of the individual.”

Especially when the individual has helped promote Internet memes making fun of the CPSC.

P.S. Zen Magnets LLC of Denver, which markets a similar product which it says has not been linked to injury reports, and which has refused to withdraw its product from the market despite CPSC’s demands, is calling attention to a poll that it says shows the U.S. public overwhelmingly in favor of leaving recreational rare earth magnets on the market labeled for adult use (& Brian Doherty, Reason, Joe Patrice/Above the Law, Alexander Cohen/Atlas; cross-posted in slightly different form at Cato at Liberty).

P.P.S. Noted at the Cato version: “If the move succeeds, Zucker could be ordered to foot the bill personally for offering consumers full refunds for all products sold, reimbursing retailers for recall costs, and various other expenses potentially reaching into the millions.”

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The remarkable recent advances in make-it-yourself technology are opening up all sorts of new possibilities for users, but also have the potential to freak out the CPSC, FDA, trade agencies and intellectual property lawyers, as well as gun-control advocates. When products extruded from local printers are inevitably involved in injuries, which distant parties can be sued? [Bloomberg]

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Talking used cribs

by Walter Olson on March 27, 2013

“I had to [explain she] could not find a second-hand crib because the CPSC basically outlawed” them [CPSC commissioner Nancy Nord, earlier here, here]

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March 7 roundup

by Walter Olson on March 7, 2013

Lenore Skenazy of Free-Range Kids is the guest essayist at Cato Unbound. Excerpt:

..any time a politician, principal, or bureaucrat wants to score points, he or she lets us know that kids are even more precious—and endangered—than we thought….

How far has society gone in dreaming up new dangers to protect our children from? Until you take a step back and look at all the new laws and regulations, you probably have no idea….

Over the summer, according to the Manchester, Connnecticut Patch, a local mom was charged with “risk of injury to a minor and failure to appear after police say she allowed her seven-year and 11-year old children to walk down to Spruce Street to buy pizza unsupervised.” This was a walk of half a mile….

…in the “real world,” stranger abductions are so rare that if for some reason you actually WANTED your child to be kidnapped by a stranger, do you know how long you’d have to keep your child outside, unattended, so that statistically the abduction would be likely to happen?

The answer is about 750,000 years, according to author Warwick Cairns. And after the first 100,000 years or so, your kid isn’t even cute anymore. …

At the same time, there is a parallel process going on the regulatory world, with bureaucrats looking ever more intently for ever less likely dangers, on the grounds that kids can never be safe enough. This explains things like the Consumer Product Safety Commission’s recall of a line of children’s jackets last year because the elastic waistbands had toggles on it “that could become snagged or caught in small spaces or doorways, which poses an entrapment hazard to children.”

Yes, it’s true: Those toggles could snag. Does that make them inherently more dangerous than, say, pigtails that could get caught in a door, or a charm bracelet that could get snagged on an electric window? I’m just free-associating products and problems here, because that’s what it feels like the CPSC does, too.

In the discussion, Skenazy is joined by Anthony Green, James A. Swartz and Joel Best.

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Medblogger Shadowfax (All Bleeding Stops) considers a study on the hazards of children’s bouncers. (via White Coat)

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Urgent alert from the Consumer Product Safety Commission: fail to clean a kid’s bouncy seat and it can get, ew, gross [Free-Range Kids]

December 26 roundup

by Walter Olson on December 26, 2012

  • L.A. County assessor, though in jail, will keep drawing $197K salary plus raise [LAT]
  • IRS lowers the regulatory boom on tax preparers [Institute for Justice video, auto-plays]
  • On Wal-Mart Mexico bribery, NYT has a bit of a blind eye of its own [Stoll; earlier here, here, etc.]
  • Another painful CPSIA regulation: CPSC on testing “representative samples” [Nancy Nord]
  • “Popcorn lung” couple “won a $20 million judgment. Now, they’re broke.” [ABC]
  • From Todd Zywicki: Libertarianism, Law and Economics, and the Common Law [SSRN via Bainbridge]
  • If the courts disapprove of throttling internet speeds, what do they think of throttling class action claims redemption rates? [Ted Frank]