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The Peril of the Unreported Coffee Pot: Why a Failure to Report Is a Continuing Violation

By Stephanie Crawford & Scott L. Winkelman on May 13, 2019
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“The hallmark of the continuing offense is that it perdures beyond the initial illegal act, and that ‘each day brings a renewed threat of the evil Congress sought to prevent’…” Toussie v. United States, 90 S. Ct. 858, 864 (1970). In a ruling issued May 9, the Seventh Circuit determined that a failure to report under the Consumer Product Safety Act is a continuing violation by affirming the lower court decision fining Spectrum Brands, Inc. for failing to report an alleged coffee pot defect.[1] This rare instance of a court ruling on CPSC activity highlights the need for companies to report when a product may contain a potential safety defect.

A Failure to Report Is a Continuing Violation

The Seventh Circuit found a failure to report to be a continuing violation until the day a company’s Section 15(b) report is made because the peril of the unreported coffee pot – physical harm – continues to be a risk for the public. The debate in this case turned on when the five-year default statute of limitations for federal statutes containing no time bar begins to run on CPSC enforcement actions. The lower court found the CPSC enforcement action against the company for late reporting not time-barred, and the Seventh Circuit agreed.

The Seventh Circuit looked at the issue in two ways: First, that every report the company received that should have been reported was a separate violation. And, second, that the stream of complaints the company received could be viewed as evidence of the continuing risks posed by the allegedly defective coffee pot.

The company had argued that the CPSC’s enforcement was barred by the Gabelli doctrine – the principle that a claim accrues when fraudulent conduct occurs, not when discovered, and that generally refuses to apply a discovery rule to a statute of limitations for government enforcement. The Court found the Gabelli doctrine did not apply because it was not the discovery rule that made the government’s case timely. The Gabelli doctrine, originating from an SEC case, is an equitable doctrine seeking to protect plaintiffs from a malefactor’s fraudulent actions. An individual plaintiff is not expected to be in a constant state of investigation to suss out fraud. This equitable doctrine does not apply similarly to the government, whose resources and non-individual nature are not consistent with the purpose of the Gabelli doctrine. On the other hand, a separate equitable doctrine, the continuing violation doctrine, exists to prevent wrongdoers from using their earliest wrongdoing as a way to avoid liability for wrongdoing that continued over time. It is this doctrine that the Seventh Circuit found to apply to make CPSC enforcement timely. The majority and concurring opinions differed only on how to characterize the continuing violation: as one continuous wrong of non-reporting (the majority) or as a series of isolated wrongful acts of non-reporting, each one restarting the clock (the concurrence).

The Court’s decision reinforces that the CPSA intends that consumer reports and other evidence of potential defects that present a risk of injury be promptly reported in order to protect public safety. See also U.S. v. Michaels Stores, Inc. et al., 2016 WL 1090666 (N.D. Tex. Mar. 21, 2016) at 2. A failure to report presents a continuing risk to public safety, therefore a failure to report is a continuing violation.

Turning on the Statute of Limitations Clock

It is rare to find courts interpreting sections of the CPSA. In doing so, the Seventh Circuit’s decision continues to reinforce, as in the district court decision, that the five-year statute does not start to run until a company has filed a Section 15(b) report. At that time, the five year statute of limitations on penalty claims by the CPSC will begin to run. 28 U.S.C. § 2462.

[1] The Seventh Circuit also found that the district court had authority to enter and did not abuse its authority by entering an injunction requiring the company to implement a compliance program and retain an expert. The district court ruling imposed a failure to report fine, a fine for the sale of recalled products, and an injunction requiring the company to adhere to its new compliance practices and to retain an independent consultant to recommend modifications to those practices.

Photo of Stephanie Crawford Stephanie Crawford

Stephanie Crawford is a trusted counselor to a broad range of industries facing reorganizations, transactions, national security issues, and questions of supply chain management. Stephanie provides related mergers and acquisitions, counseling, litigation, international arbitration, and investigations services to clients in the aerospace and

…

Stephanie Crawford is a trusted counselor to a broad range of industries facing reorganizations, transactions, national security issues, and questions of supply chain management. Stephanie provides related mergers and acquisitions, counseling, litigation, international arbitration, and investigations services to clients in the aerospace and defense, communications, energy, information technology, and consumer products sectors.

Stephanie has substantial experience with both buy-side and sell-side transactions. She has led government contracts diligence for numerous private equity entities and defense contractors. She assists clients with navigating post-closing government requirements, including unique license transfers and approvals; novation and change of name regulations; and Defense Counterintelligence and Security Agency communications and foreign ownership, control, and influence (FOCI) mitigation.

Stephanie counsels clients on supply chain, sourcing, and national security regulations and requirements. Such counseling includes compliance with the Defense Production Act, including priority orders, ratings and associated regulations; the Public Readiness and Emergency Preparedness Act; and National Industrial Security Program Operating Manual (NISPOM) regulations. She is also known for her ability to solve immediate and business-threatening System for Award Management (SAM) and Defense Logistics Agency (DLA) CAGE Code problems.

Stephanie defends government contractors facing potential tort litigation with a nexus to their government contracts and facing supply chain and national security-related investigations, litigation, and arbitrations.

Stephanie’s pro bono practice focuses on a broad range of veterans’ issues, including disability ratings and discharge upgrades

Read more about Stephanie CrawfordEmail
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Photo of Scott L. Winkelman Scott L. Winkelman

Scott L. Winkelman is a partner in the firm’s Litigation Group and co-chair of the firm’s Transportation Practice. Scott co-founded the firm’s Product Risk Management Practice, has served on the firm’s Management Board and Executive Committee, and for a time managed the firm’s…

Scott L. Winkelman is a partner in the firm’s Litigation Group and co-chair of the firm’s Transportation Practice. Scott co-founded the firm’s Product Risk Management Practice, has served on the firm’s Management Board and Executive Committee, and for a time managed the firm’s New York office and its Regulatory initiative.

Scott represents clients in class actions, force majeure and other contract disputes, multidistrict proceedings, arbitrations, and other complex litigation in products and commercial matters nationwide.

Scott represents clients in agency proceedings before the National Highway Traffic Safety Administration (NHTSA), the Consumer Product Safety Commission (CPSC), and related product regulatory bodies, including in connection with four of the largest automotive recalls in United States history.

Scott conducts product and business risk assessments; performs crisis management; and counsels on liability prevention, commercial contracting, warranty, and best practices in law functions and legal management.

Scott is a certified “black belt” in Six Sigma methodology and brings project efficiencies to his client engagements.

Scott has been recognized by BTI Consulting Group as a 2020 Client Service All-Star. The honor, bestowed by corporate counsel, recognizes attorneys who “stand above all the others in delivering the absolute best in client service. Amid all the changes and unexpected events, they stand tallest.”

Since 1997, Scott has been selected by his peers for inclusion in The Best Lawyers In America as a “Best Lawyer” in the area of product liability litigation, and has been ranked in Super Lawyers.

Scott served as judicial clerk to the Honorable John Pratt of the U.S. District Court for the District of Columbia.

Scott is married with two children and roots for all Detroit sports teams.

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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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