CPSC Names ALJ as Numerous Filings Occur in Britax Recall Suit

CPSC members April 23 voted 4-0 by ballot to appoint administrative law judge (ALJ) Cameron Elliot to oversee the Britax recall suit. Elliot has been an ALJ with the Securities and Exchange Commission (SEC) since 2011.

According to a 2011 SEC press release (bit.ly/2HvQC1P) as well as Elliot's LinkedIn page, he held a similar position at the Social Security Commission from 2008 to 2011. Prior to that, he was with the law firm Darby & Darby from 2006 to 2008 (it dissolved in 2010).

From 1998 to 2006, Elliot was a Justice Department trial attorney, specializing in patents and copyright, which also were the focus of Darby & Darby. Before that, he clerked for Judge Edward Reed of the Nevada U.S. district court.

He graduated from Harvard Law School in 1998. His 1987 undergraduate degree is in physics from Yale. Between, he was an officer in the Navy and Naval Reserves.

He recently received attention in conservative news outlets – like the Wall Street Journal or Washington Examiner – in critical opinion pieces on SEC's past ALJ appointment practices. Involved is a case now before the Supreme Court – Lucia v Securities and Exchange Commission – seeking to overturn an SEC decision based on questions about appropriate delegation of constitutional powers for appointments.

As for Elliot's current ALJ authority, the SEC last November, issued an order (bit.ly/2HvpNKY) ratifying his and others' appointments. That move was seen as SEC flipping its position to supporting or at least conceding the constitutional arguments. Regardless, it also likely protected Elliot from similar authority challenges going forward. Additionally, CPSC's appointment of him is by agency heads directly – lack of that is at issue in the SEC challenge.

Meanwhile, the Britax case saw numerous recent filings, including a few orders signed by Elliot. They included:

• An order (http://bit.ly/2HQIufv) scheduling a prehearing conference at SEC's Washington, D.C. offices May 3.

 

• An amended discovery schedule (http://bit.ly/2I1bL4J) accounting for a protective order, noting possible need for time extensions, and addressing objection processes.

 

• The protective order (bit.ly/2r2iHGT) allowing for some information to be designated confidential. Types include statutorily protected material; trade secrets; possibly other financial, technical or commercial information; personal medical data; personally identifiable information; and income tax returns or other nonpublic financial material.

 

• An order (bit.ly/2FjMZdd) granting the updated discovery schedule and other matters.

 

• A notice (bit.ly/2r1Q1OU) of Elliot's appointment and of the SEC's March decision to loan him to CPSC.

Commissioners voted 3-1 on party lines earlier this year to begin the litigation (PSL, 2/19/18). The complaint alleges a design defect with B.O.B. strollers involving wheel detachments. CPSC staffers want the remedy to be a refund and are targeting 493,000 units imported between 1997 and 2011.

Last month (PSL, 3/26/18), Britax submitted a 12-point defense, including its assertion that the strollers comply with the wheel retention performance requirements in CPSC's 2014 regulations at 16 CFR 1227. That Section 104 rule is based on ASTM's F833 voluntary standard for strollers and carriages.

Interestingly, the company also raised a presiding officer defense, asserting, "The Commission's procedures for appointing a Presiding Officer are not consistent with the Constitutional requirements for appointments of 'Officers of the United States.'"

Some of the other defenses included rejecting that CPSC met its duties of proof on matters like defects, substantial hazards, unreasonable risks, and others. That filing (bit.ly/2Gb9Qfz) also addressed matters like the company's control over injuries and third-party actions.