Current thinking from public health experts is that COVID-19 will affect the American economy for several months. But during this period businesses still have responsibilities to their brands and obligations under law. And unlike during last year’s government shutdown, the pandemic has forced government agencies like the U.S. Consumer Product Safety Commission (CPSC) to operate differently, but it hasn’t closed its doors. For that reason, businesses will still have legal obligations and face the possibility of CPSC enforcement efforts.

Here are three steps companies can take to protect their brands and reduce the risk of CPSC enforcement.
Continue Reading COVID-19: Three Steps Companies Can Take to Reduce Risk of Regulatory Side Effects

Frequently the U.S. Consumer Product Safety Commission (CPSC) shares big news at the annual meeting of the International Consumer Product Health & Safety Organization (ICPHSO), the body that brings together all stakeholders in the product safety space, from consumer advocates to industry to regulators. A few years ago, then-Chairman Elliot Kaye shared his desire to see penalties in the “double-digit millions.” That statement preceded – by mere weeks – the announcement of a $15.45 million penalty against Gree Electric Appliances, Inc., the maximum penalty allowed by CPSC’s statutes.
Continue Reading CPSC to Industry: Talk to Our Lawyers

The Supreme Court recently granted certiorari in Spokeo v. Robins, a case that has the potential to redefine standing in federal court. The Ninth Circuit’s February 2014 decision permitted plaintiff Thomas Robins to establish standing under the Fair Credit Reporting Act (“FCRA”) with nothing more than a speculative injury. This contravenes Supreme Court precedent, which finds standing when a plaintiff suffers a harm that is actual, distinct, palpable, and concrete; attenuated and hypothetical injuries do not constitute an injury-in-fact. The implications of the Ninth Circuit’s holding in Spokeo v. Robins have grabbed the attention of companies in nearly every industry. Their concern, as expressed by the U.S. Chamber of Commerce – granting standing to plaintiffs who have not suffered an injury-in-fact will open the flood gates to no-injury class actions brought under statutes that authorize a private right of action. But, in truth, the implications to businesses could extend beyond this.
Continue Reading No Injury? No Problem.

Almost every day we are bombarded with reports of scientific studies purportedly proving that exposure to, or consumption of, some substance will cause us harm. Recent examples include claims that vaccines cause autism, BPA kills, and genetically modified foods engender disease. While there is little to no filter on what “science” is presented to the general public through the available forms of media and communications, what jurors are allowed to hear in courts of law is very different. Courts require much tougher standards before admitting scientific evidence. Good science proposes a hypothesis then sets about to try and disprove it – – not just seek “proof” supporting the hypothesis. Good science results from research, application of the scientific method, and peer review. Courts look to these criteria when determining whether to admit scientific evidence under the Frye or Daubert standards. Judges thereby serve a “gate-keeping function[] to differentiate serious science from ‘junk science.’”   

But outside of the courtroom there are no judicial gatekeepers. As a result junk science has crept its way into the headlines. So how can the public differentiate between legitimate science and junk science? One answer is to trust credited experts, not sensationalized headlines. Three recent examples highlight the pitfalls of jumping to conclusions: 
Continue Reading Spring Cleaning: Throwing Junk Science Where It Belongs

The Third Circuit Court of Appeals will soon be deciding an issue that could dramatically impact the liabilities aircraft product manufacturers may face.  Specifically, the court will address the question of whether a certificate issued by the FAA precludes design defect claims against aircraft product manufacturers. 

The appeal stems from the U.S. District Court for the Middle District of Pennsylvania’s dismissal of certain product liability claims in Sikkelee v. AVCO Corp.  The district court relied on the 1999 case of Abdullah v. American Airlines, Inc., a passenger-injury case against American Airlines, in determining that the claims are preempted by the Federal Aviation Act. 
Continue Reading Manufacturers Await Decision on Whether Federal Aviation Act Precludes Design Defect Claims