The warning on a bottle from Asda, a large U.K. grocery chain, is “indicative of a policy by supermarkets and food manufacturers to liberally stamp warnings on products to avoid legal complications.” [Daily Mail]
Update: Insurance law Hall of Fame
“An insurance company with a potential $25 million liability from a fatal 2007 Houston office fire announced [Jan. 21] that it will drop its legal argument” that it shouldn’t have to pay for smoke inhalation deaths because they supposedly resulted from “pollution”, a risk excluded under the policy, as opposed to the actual flames. [Houston Chronicle; earlier].
Podcasts on CPSIA: CraftSanity, “America’s Business”
I was a guest this week on the 93rd podcast in Jennifer Ackerman-Haywood’s CraftSanity series, talking about the Consumer Product Improvement Safety Act. As readers know, the CPSC issued a one-year stay of enforcement of some of the law’s provisions on Friday; the interview was recorded two days before that, on Wednesday, so inevitably some of the issues we discuss are of less immediate urgency now (though kicking them down the road is not the same thing as solving them).
Also recorded on Wednesday, I did a (shorter) prerecorded interview on CPSIA as a guest on the National Association of Manufacturers’ weekly audio show “America’s Business”, hosted by Mike Hambrick. Same caveats apply.
February 1 roundup
- A “retired Reserve captain is threatening to sue her local California school board if the board’s members do not address her by her military title” [Navy Times, Popehat]
- Members revolt at Florida bar’s selling their email addresses to marketers; general counsel of bar suggests they maintain multiple email addresses [Daily Business Review]
- “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies” [NLJ; fees awarded to Takeda Chemical Industries against Mylan Laboratories and Alphapharm Pty. Ltd.]
- Much of what you think you know about the Lilly Ledbetter Fair Pay Act is wrong [Stuart Taylor, Jr./National Journal; Point of Law, more]
- Not only prejudicial, but a whiskery urban legend to boot: fictional “Winnebago tale” (man thinks cruise control function will drive RV for him, sues after crash) makes its way into an Australian lawyer’s courtroom argument [Rees v. Bailey Aluminium Products]
- Posner was scathing about the class action lawyers’ conflicts of interest in the Mirfasihi v. Fleet Mortgage Co. case, but Max Kennerly thinks the judge got the case wrong [Litigation and Trial, earlier]
- Fight erupts over fee split in Blue Cross eating-disorder class action settlement [NJLJ, earlier]
- “Many attorneys from both parties also marvel at the sheer number of lawyers Obama has picked so far” in staffing White House [Washington Post]
“Court Rejects Unabomber’s Request to Get Unabombing Stuff Back”
Theodore Kaczynski tried to advance an equitable case for the return of various stuff seized by feds from his cabin, but, Kevin points out at Lowering the Bar, he had “unclean hands”. [U.S. v. Kaczynski, FindLaw, PDF]
More on cosmetics giveaway settlement
Susan Taylor Martin writes in the St. Petersburg Times on problems with class-action settlements, including a recent one in Florida that seems basically to have pitted Florida drivers against Florida taxpayers (she quotes me on how this can empower lawyers to move money from our left pockets to our right pockets at a high overhead cost). She also reports on the national cosmetics giveaway that recently took place following a class-action antitrust suit (see Jan. 29, etc.) A highlight:
I also asked Saveri [San Francisco class-action attorney Guido Saveri, one of the lead counsel] if he thought the giveaway program had been rather loosely administered. Customers didn’t have to prove they were part of the class, and there was nothing to stop them from getting as many cosmetics as they could. The result: Stores quickly ran out and a lot of people who were members of the class didn’t get anything.
“I think it was very well administered,” Saveri said, a bit huffily. “Each person had to file a piece of paper that they were entitled to one product — whether you want to lie about it I can’t control that.”
Before we hung up I asked Saveri if any of his female relatives got free cosmetics. Turns out the giveaway was off limits to attorneys’ families.
But with $24 million, they can afford to shop at Neiman-Marcus. As for me, I’ll wait until L’Oreal goes on sale at my local CVS.
Back in November 2006, we called it a “no-blush, high-gloss, invisible-foundation antitrust class action”.
CPSIA stay II
Yesterday’s extraordinary one-year stay of enforcement on testing/certification by the CPSC was, if nothing else, a tribute to the energy of an extraordinary grass-roots movement that emerged over the past two months and made its voice heard around the country and above all in Congress. It will rightfully be cause for celebration by thousands of businesses whose inventories of books, toys, garments and other childrens’ goods have now suddenly not been rendered valueless and which can continue making selling their wares after Feb. 10, not indeed without legal worries, but at least without being in blatant defiance of the responsible federal agency, the Consumer Product Safety Commission.
After the hugs and confetti-throwing have subsided, there will be time to examine the many ways this relief falls short of solving the CPSIA problem, while leaving product makers and retailers exposed in serious legal ways over the next twelve months as well as afterward.
In the mean time, let us note that while some sectors of the media flopped utterly in covering CPSIA in recent weeks, others distinguished themselves, with much good coverage appearing in local newspapers and also local television (the latter often belittled as a source of original reporting). Above all, this was a triumph of social media: blogs both big and small (including the 350+ who participated in CPSIA Blogging Day on Wednesday), forums (at places like Fashion Incubator and Etsy), and Twitter (which proved its worth as a means of putting concerned people in touch with each other, spreading word about useful articles, documents and resources, and serving as an early alert system on news developments).
(Public domain illustration: Grandma’s Graphics).
CPSIA: CPSC announces 1-year enforcement stay
[Headline updated to reflect full commission approval.]
In a major development this afternoon, the staff of the Consumer Product Safety Commission has proposed (PDF), and the commission itself has agreed by a 2-0 vote to, a one-year stay of enforcement of CPSIA’s testing and certification requirements (but not its introduction of new lead and phthalate standards; products will still need to conform to those standards).
This is, in general, very good news, but two problems need to be pointed out. One is that the action may be vulnerable to legal challenge as violating the CPSC’s legal obligations to regulate, and in particular to enforce CPSIA’s terms faithfully. As if to confirm that danger, prominent “consumer” groups — that is, the same groups that pushed CPSIA through to enactment and have vocally defended the law ever since — issued a letter this afternoon digging into their position that there’s nothing wrong with the law and that Congress should not revisit it. (Consumers Union, Public Citizen — the latter, it will be recalled, being the group whose David Arkush wrote last month “I haven’t heard a single legitimate concern yet” about the law.)
All these pro-CPSIA groups have lawyers; some are governed of, by, and for lawyers. If and when they sue the CPSC, a court could agree with them and disallow the one-year enforcement stay of certification requirements.
Beyond that, the CPSC is not the law’s only enforcer. Today’s letter from the commission states the following:
The Commission trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.
In other words, the commission has at most the power to stay its own enforcement, and cannot stay the 50 state attorneys general from going after makers of children’s goods, small or large, who fail to obtain testing certifications between now and next February. But it expresses a wan hope that they will be reasonable and not do so. You know how reasonable those state attorneys general always are.
In another development today, Sen. Jim DeMint (R-S.C.) has announced that he will introduce a bill that would broadly reform CPSIA’s terms.
CPSIA and religious goods
Just posted at Musings from a Catholic Bookstore:
We currently have received certification from one vendor (about 10 products) which means that we have been forced to discontinue 1ooo products that we currently don’t have in stock to avoid breaking the law after February 10th. We currently have about 600 different kid’s items in stock that are discounted and won’t be available after February 10th unless we get more certificates from vendors.
The upshot of this? The First Communion season (February – May) is usually the second busiest season of the year for Catholic retailers. This year, unless our vendors get their acts together, it will be the worst season ever because there won’t be any First Communion dresses, kid’s missals, kid’s rosaries, etc. available for purchase.
I wonder how many Catholic retailers that are currently on the edge this will put over into failure? Knowing our industry it is quite likely that many, in spite of our contacting them, will continue operating as if the law doesn’t exist. At least until they get fined out of existence.
Anyway, stock up on First Communion and other kid’s items now because they may not be available next month.
Renewable dental treasure
The Massachusetts attorney general’s office says Tod Schaffer of Brookline filed twenty-one injury reports over the same broken tooth and got payments from at least ten restaurants.