03-31495. Lifelike Co., d/b/a My Twinn, a Corporation, Provisional Acceptance of a Settlement Agreement and Order

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice.

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 [phone].

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 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®, 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® 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.