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CPSC Issues $15.45 Million Penalty at the Statutory Maximum

By Cheryl A. Falvey & Natalia R. Medley on March 25, 2016
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The CPSC announced a civil penalty today against Gree Electrical Appliances that hit the statutory maximum of $15.45 million. CPSC Chairman Elliot Kaye had previously expressed his desire at a recent trade conference for the Commission to hit a “double digit” million dollar civil penalty and to pursue more criminal charges. Today’s announcement achieved one of those goals.

There are many lessons learned here, even based on initial impressions.

  • The CPSC is serious about accelerating penalty enforcement, which could include maximum civil penalties and criminal action for violators.
  • The CPSC will seek penalties for misrepresentations to staff in the course of a compliance investigation.
  • The CPSC is going after products sold with UL certification marks that do not meet UL standards.
  • Maximum penalties may result even where there have been no serious injuries or deaths, only claims of property damage.
  • Foreign entities are not necessarily out of the CPSC’s reach.  The settlement agreement names a party based in China and another in Hong Kong, both which agreed to CPSC jurisdiction, as well as a U.S. company that sold the products in the U.S.

Gree had engaged in a series of messy recalls of the product, a dehumidifier, over time, potentially driven by the misrepresentations alleged in the settlement agreement. The recall was first announced in September 2013, updated in January 2014, and then expanded in May 2014. But the settlement agreement is too vague and does not tie those public recall announcements to the alleged misrepresentations. Commissioner Joseph Mohorovic’s statement on the penalty calls for more disclosure in these agreements to inform the regulated community about the actions that will lead to higher penalty amounts so that “they can better understand what behavior they should avoid.”

Photo of Cheryl A. Falvey Cheryl A. Falvey

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with…

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with rapid response.

An experienced trial lawyer, and a former general counsel of the United States Consumer Product Safety Commission (CPSC), Cheri defends class actions, unfair competition, product liability and other mass tort claims arising out of consumer, occupational, and environmental exposures. She also provides brand and consumer protection counseling services, with a focus on product safety and security, including the Internet of Things; privacy; anti-counterfeiting; and digital media. Cheri represents a wide range of clients, from emerging companies to multinational Fortune 500 conglomerates.

Cheri is widely recognized as a leader in her field. She is one of an elite group of attorneys to be ranked in Chambers USA, Band 1 for Product Liability: Regulatory. She is highly regarded for her considerable experience advising clients on regulatory issues, including risk assessments, product recalls and CPSC investigations.

She represents clients on litigation and counseling matters regarding:

  • Compliance with statutes and regulations enforced by the CPSC, FDA, NHTSA, and the FTC.
  • Handles product recalls conducted in cooperation with NHTSA, CPSC, and FDA, and defends clients in agency enforcement actions seeking civil and criminal penalties.
  • Advises manufacturers faced with the potential release of unfair and inaccurate information by the government.
  • Counsels and defends clients on the sale and marketing of consumer products on the Internet, including compliance with the Children’s Online Privacy Protection Act, the FTC’s Green Guides, and state and federal privacy laws.

Prior to joining Crowell & Moring, Cheri served as the general counsel of the CPSC. In that capacity, she oversaw all federal court litigation, including civil and criminal cases referred by the Commission to the Department of Justice. Her tenure at the CPSC included advising the agency on the implementation of the Consumer Product Safety Improvement Act, a sweeping change to its statutes that had an impact across diverse industry sectors.

Cheri serves as Vice -chair of the American Bar Association’s Consumer Products Regulation Committee, Administrative Law & Regulatory Practice Section. She was named to the National Law Journal’s 2014 list of Governance, Risk & Compliance Trailblazers & Pioneers. Prior to joining the CPSC, Cheri had over 20 years of private practice experience as a partner with another international law firm where she chaired the firm’s D.C. litigation practice. Cheri is also a former member of Crowell & Moring’s Management Board.

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  • Posted in:
    Administrative and Regulatory
  • Blog:
    Retail & Consumer Products Law Observer
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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