[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