[Federal Register: December 23, 2003 (Volume 68, Number 246)]
[Notices]
[Page 74220-74221]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de03-47]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 04-C0001]
Lifelike Co., d/b/a My Twinn, a Corporation, Provisional
Acceptance of a Settlement Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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SUMMARY: It is the policy of the Commission to publish settlements
which it provisionally accepts under the Flammable Fabrics Act in the
Federal Register in accordance with the terms of 16 CFR Part 1605.
Published below is a provisionally-accepted Settlement Agreement with
The Lifelike Company, d/b/a My Twinn, a corporation.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
request with the Office of the Secretary by January 7, 2004.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 04-C0001, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney,
Office of Compliance, Consumer Product Safety Commission, Washington,
DC 20207; telephone (301) 504-7587.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated:December 16, 2003.
Todd A. Stevenson,
Secretary.
Consent Order Agreement
The Lifelike Company, d/b/a My Twinn (``Respondent''``Lifelike''),
a corporation, enters into this Consent Order Agreement (``Agreement'')
with the staff of the Consumer Product Safety Commission (``the
staff'') pursuant to the procedures set forth in section 1605.13 of the
Commission's Procedures for Investigations, Inspections, and Inquiries
under the Flammable Fabrics Act, 16 CFR part 1605.
This Agreement and Order are for the purpose of settling
allegations of the staff that Respondent sold purple satin pajamas made
from 100% polyester and rosebud nightgowns made from 100% polyester
that failed to comply with the Standards for the Flammability of
Children's Sleepwear (``Sleepwear Standards''), 16 CFR parts 1615 and
1616.
Respondent and the Staff Agree
1. The Consumer Product Safety Commission (``Commission'') is an
Independent regulatory agency of the United States Government. The
Commission has jurisdiction over this matter under the Consumer Product
Safety Act (CPSA), 15 U.S.C. 2051 et seq., the Flammable Fabrics Act
(FFA), 15 U.S.C. 1191 et seq., and the Federal Trade Commission Act
(FTCA), 15 U.S.C. 41 et seq.
2. Respondent is a corporation organized and existing under the
laws of the State of Delaware with its principal corporate offices
located at 5655 South Yosemite Street, Suite 2121, Greenwood, Village,
CO 80111.
3. Respondent is now, and has been engaged in one or more of the
following activities: The sale, or the offering for sale, in commerce,
or the importation into the United States or the introduction, delivery
for introduction, transportation or causing to be transported, in
commerce, or the sale or delivery after sale or shipment in commerce,
children's sleepwear garments that are subject to the Sleepwear
Standards.
4. This Agreement is for the purpose of settling the allegations of
the accompanying Complaint. This Agreement does not constitute an
admission by Respondent that it violated the law. The Agreement becomes
effective only upon its final acceptance by the Commission and service
of the incorporated Order upon Respondent.
5. The parties agree that this Consent Order Agreement resolves the
allegations of the Complaint and the Commission shall not initiate any
civil or administrative action against Respondent for those alleged
violations set forth in the Complaint.
6. Upon final acceptance of this Agreement by the Commission and
issuance of the Final Order, Respondent knowingly, voluntarily, and
completely waives any rights it may have in this matter (a) to an
administrative or judicial hearing, (b) to judicial review or other
challenge or contest of the validity of the Commission's actions, (c)
to a determination by the Commission as to whether Respondent failed to
comply with the CPSA, FFA, FTCA, and the underlying regulations, (d) to
a statement of findings of fact and conclusions of law, and (e) to any
claims under the Equal Access to Justice Act.
7. Upon provisional acceptance of this Agreement by the Commission,
this Agreement shall be placed on the public record and shall be
published in the Federal Register in accordance with the procedures set
forth in 16 CFR 1605.13d). If the Commission does not receive any
written objections within 15 days, the Agreement will be deemed finally
accepted on the 20th day after the date it is published in the Federal
Register.
8. In settlement of the staff's allegations of the Complaint,
Respondent agrees to comply with the attached Order incorporated herein
by reference.
9. Upon a violation of the attached Order by Respondent, the
Commission reserves the right to take appropriate legal action against
Respondent for all violations listed in the Complaint and for all
violations occurring after the date of this Agreement and respondent
waives the statute of limitations.
10. For any violation occurring after the date of this Agreement,
if the Commission finds that Respondent has manufactured for sale,
sold, or offered for sale, in commerce, or imported into the United
States, or introduced, delivered for introduction, transported or
caused to be transported, in commerce, of any product, fabric, or
related material which fails to comply with the Sleepwear Standards,
Respondent will pay to the Commission upon demand a penalty in the
amount of five (5) times the retail value of the product in question.
This provision does not preclude the Commission from taking additional
action including, but not limited to, civil, administrative, and/or
criminal actions under sections 5, 6, and 7 of the FFA, 15 U.S.C. 1194,
1195, and 1196; sections 2 and 21 of the CPSA, 15 U.S.C. 2069 and 2070;
and
[[Page 74221]]
sections 10 and 17(b) of the FTCA 15 U.S.C. 50 and 57(b).
11. Respondent reserves its right to challenge the Commission's
findings under paragraphs 9 and 10 of this Agreement before the
Commission and to have the court review whether the Commission's
decision was arbitrary and capricious.
12. The Commission may publicize the terms of this Consent Order
Agreement.
13. This Agreement, and the Complaint accompanying the Agreement,
may be used in interpreting the Order. Agreements, understandings,
representations, or interpretations, made outside this Consent Order
Agreement may not be used to vary or contradict its terms.
14. Upon acceptance of the Agreement, the Commission shall issue
the following Order.
15. The provisions of this Agreement shall apply to Respondent and
each of its successors and assigns.
Dated: September 29, 2003.
Respondent, the Lifelike Co.
Dennis W. Scruggs,
Executive Vice President and Chief Financial Officer, The Lifelike
Company, d/b/a My Twinn, 5655 South Yosemite Street, Suite 212,
Greenwood Village, CO 80111.
Commission Staff
Alan H. Schoem,
Assistant Executive Director, Office of Compliance, Consumer Product
Safety Commission, Washington, DC 20207-0001.
Eric L. Stone,
Director, Legal Division, Office of Compliance.
Dated: September 29, 2003.
Dennis C. Kacoyanis,
Trial Attorney, Office of Compliance.
Order
It is hereby ordered that Respondent, its successors, and
assigns, agents, representatives, and employees, directly or through
any corporation, subsidiary, division, or other business entity, or
through any agency, device, or instrumentality, do forthwith cease
and desist from manufacturing for sale, selling, or offering for
sale, in commerce, or importing into the United States or
introducing, delivering for introduction, transporting or causing to
be transported, in commerce, any product, fabric, or related
material that fails to comply with the flammability requirements of
the Standards for the Flammability of Children's Sleepwear, 16 CFR
parts 1615 and 1616.
It is further ordered That following service upon Respondent of
the Final Order in this matter, Respondent will notify the
Commission within 30 days following the consummation of the sale of
a majority of its stock or following a change in any of its
corporate officers responsible for compliance with the terms of this
Consent Agreement and Order.
By direction of the Commission, this Consent Agreement and Order
is provisionally accepted pursuant to 16 CFR 1605.13, and shall be
placed on the public record, and the Secretary is directed to
publish the provisional acceptance of the Consent Order Agreement in
the Commission's Public Calendar and in the Federal Register
So ordered by the Commission, this 16th day of December, 2003.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
Complaint
Nature of Proceedings
Pursuant to the provisions of the Flammable Fabrics Act (FFA), as
amended, 15 U.S.C. 1191 et seq.; the Federal Trade Commission Act
(FTCA), as amended, 15 U.S.C. 41 et seq.; and the Standards for the
Flammability of Children's Sleepwear (Sleepwear Standards), 16 CFR
parts 1615 and 1616, the Consumer Product Safety Commission having
reason to believe that the Lifelike Company, d/b/a My Twinn[reg], 5655
South Yosemite Street, Suite 212, Greenwood, CO 80111, has violated the
provisions of said Acts; and further, it appearing to the Commission
that a proceeding by it in respect to those violations would be in the
public interest, therefore, it hereby issues its complaint stating its
charges as follows:
1. Respondent the Lifelike Company, d/b/a My Twinn[reg] is a
corporation organized and existing under the laws of the State of
Colorado, with its principal place of business located at 5655 South
Yosemite Street, Suite 212, Greenwood Village, CO 80111.
2. Respondent is now and has been engaged in the sale, or the
offering for sale, in commerce, or the importation into the United
States, or the introduction, delivery for introduction, transportation
or causing to be transported, ion commerce, or the sale or delivery
after a sale or shipment in commerce, as the term ``commerce'' is
defined in section 2(b) of the FFA, 15 U.S.C. 119(b), ``children's
sleepwear'' as defined in 16 CFR 1615.1 and 1616.1.
3. From October 15, 1999, through December 3, 1999, Respondent
imported into the United States, sold, and offered for sale, in
commerce, introduced, delivered for introduction, transported or caused
to be transported, in commerce, and sold or delivered after a sale or
shipment in commerce 4,366 pairs of purple satin pajamas made from 100%
polyester that failed to meet the flammability requirements of the
Children's Sleepwear Standards, 16 CFR parts 1615 and 1616, in
violation of section 3(a) of the FFA, 15 U.S.C. 1192(a).
4. In 2001, Respondent sold, and offered for sale, in commerce,
introduced, delivered for introduction, transported or caused to be
transported, in commerce, and sold or delivered after a sale or
shipment in commerce, 2,103 pairs of purple satin pajamas, GPU 072899,
made from 100% polyester that failed to meet the flammability
requirements of the Children's Sleepwear Standards, 16 CFR parts 1615
and 1616, in violation of section 3(a) of the FFA, 15 U;.S.C. 1192(a).
5. In 2001, Respondent sold, and offered for sale, in commerce,
introduced, delivered for introduction, transported or caused to be
transported, in commerce, and sold or delivered after a sale or
shipment in commerce 3,564 rosebud nightgowns, GPU 072600, made from
100% polyester that failed to meet the flammability requirements of the
Children's Sleepwear Standards, 16 CFR parts 1615 and 1616, in
violation of section 3(a) of the FFA, 15 U.S.C. 1192(a).
6. The acts by Respondent set forth in paragraphs 3 through 5 of
the complaint are unlawful and constitute an unfair method of
competition and an unfair and deceptive practice in commerce under the
FTCA, in violation of section 3(a) of the FFA, 15 U.S.C. 1192(a), for
which a cease and desists order may be issued against Respondent
pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and section 5
of the FTCA, 15 U.S.C. 45.
Relief Sought
7. The staff seeks the issuance of a cease and desist order against
Respondent pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and
section 5 of the FTCA, 15 U.S.C. 45.
Wherefore, the premises considered, the Commission hereby issues
this Complaint on the 11th day of December, 2003.
By direction of the Commission.
Alan H. Schoem,
Assistant Executive Director, Office of Compliance.
[FR Doc. 03-31495 Filed 12-22-03; 8:45 am]
BILLING CODE 6355-01-M