Tenenbaum’s Exit Possibly Distant Despite Announcement

CPSC Chairman Inez Tenenbaum potentially could be at CPSC another 20 months, until October 2014, despite her announcement February 28 that she will not seek renomination. She told an audience at the International Consumer Product Health and Safety Organization (ICPHSO) annual meeting that she would stay until her successor is confirmed.

Given the slow speed that commission slots become filled historically, it would not be surprising to see her running the agency for a large portion of her remaining time. That could include well into the extra year allowed under CPSC rules and intended to facilitate the naming and confirmation of replacements with minimal risk to the commission’s quorum.

On the other hand, it is possible that she could leave in the coming months as spokesman Scott Wolfson told PSL, “If a nominee is named by the President and confirmed by the Senate prior to October, Chairman Tenenbaum will be prepared to step down from her position.”

Despite the typical lag in getting commissioners in place, that possibility is not necessarily remote. Tenenbaum’s announcement does put pressure on the White House and Congress to pay attention to vacancies on the commission because without replacements, the panel is set to lose its quorum this year regardless of when or whether Tenenbaum leaves.

This is because Commissioner Nancy Nord, a Republican, is serving her final, extra year and will depart in October, leaving just Tenenbaum and Commissioner Bob Adler. Although the CPSA allows a temporary, six-month quorum of only two people, it also specifies that they must be of different parties. Tenenbaum and Adler are both Democrats.

Two other commission seats – those vacated by former Commissioners Thomas Moore and Anne Northup in 2011 and 2012 respectively – remain unfilled. President Barack Obama’s nominee to replace Moore, Marietta Robinson, has remained unconfirmed for 13 months despite having an uncontroversial confirmation hearing in May 2012.

Obama has not named Northup’s replacement and speculation has been that the holdup involves a desire in the Senate to handle a pair – one Democrat and one Republican – together. Tenenbaum’s announcement complicated that scenario and fueled speculation among ICPHSO attendees on how the White House and Senate might handle the situation as there now are two Democrat-Republican pairs needing attention: Moore-Northup and Nord-Tenenbaum.

Speculation also touched on the possibility of limiting the panel to three again, at least temporarily, for budget reasons. However there has been no official indication of that tack.

Filing in Magnets Case Argues Against Individual Liability Sean Oberle

A February 28 filing in CPSC’s ongoing action against makers of strong, small magnets argues that former Maxfield & Oberton CEO Craig Zucker should not be targeted individually. CPSC’s amended complaint seeks to do so (PSL, 2/18/13, p. 1).

The new opposition to motion for leave asserts that CPSC is seeking to “rewrite Section 15 of the [CPSA] to add words that are simply not there.” It points out that while CPSA Section 21 explicitly allows individual liability, Section 15 contains no such language. It argues, “Under well settled principles of statutory construction, when a statue includes language in one section, but omits it in another section of the same statue, the presumption is that Congress acted intentionally in crafting the different provision. The CPSA therefore does not permit Mr. Zucker to be the subject of a recall order.”

The brief also points to the “bedrock principle of corporate law” against individual liability and argues that the “responsible corporate officer” doctrine cited by CPSC does not apply.

The 20-page filing also cites other factors for rejecting CPSC’s move, including the time and money that Zucker would spend defending himself individually. It concludes, “Because it would be futile to allow [CPSC] to amend the Complaint to include Mr. Zucker as a respondent, he should not be put through the time and expense of defending a case that cannot ultimately succeed against him.”

The new document was not on CPSC’s website as of PSL’s deadline but presumably will be at www.cpsc.gov/en/ Recalls/Recall-Lawsuits/Adjudicative-Proceedings. That is the agency’s page for posting the legal documents associated with its ongoing suits against various companies.