Robinson and Buerkle Discuss Differences on Legal Matters

Whether companies should have a right to explicitly deny that defects exist when making Section 15(b) reports was among numerous issues on which Commissioners Ann Marie Buerkle and Marietta Robinson took opposing sides March 2. The two, both lawyers, debated for a session intended for, but not restrict to, attorneys at ICPHSO's Washington, D.C. conference.

On defect denials, Buerkle pointed out that 15(b) reports often occur before there is a determination of a problem, so the denial right serves as a protection in liability cases. Robinson called the situation unique to CPSC and worried that a denial might confusingly suggest safety despite that also not being established. She said phrasing often used elsewhere – neither admit nor deny – could make the uncertainly clear.

Other issues in their discussion included:

• Compliance Programs: Buerkle worried that CPSC is taking a one-size fits-all approach in a list of provisions included in settlement agreements in recent years. She wondered if some staffers' lack of private sector experience might exacerbate this. Robinson countered that the provisions are purposely general so as not to inappropriately inject CPSC into company specifics.

 

• Penalty Predictability: Robinson said CPSC's is very transparent on the matter compared to other authorities in her legal experience, asserting that CPSC legal staffers use the statutory factors well. She also said they seriously review responses to show cause letters, having dropped cases or lowered amounts in reaction. Buerkle suggested much of the confusion involves the language of Section 15 (the primary cause of penalties), especially its containing the word could (see related story in this issue). They also disagreed on whether Chairman Elliot Kaye earlier in the day had set an inappropriate goal of generally higher penalties with Buerkle focusing on it being a desire that "sets the tone" for staff decisions on penalty amounts and Robinson focusing on his linking high penalties to good cause (see related story in this issue).

 

• Recalls: Robinson favored and Buerkle disliked a decision to exempt cases involving deaths from the deferral to staff negotiation (see related story in this issue).