[Federal Register Volume 76, Number 155 (Thursday, August 11, 2011)]
[Notices]
[Pages 49751-49753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20463]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 11-C0009]


Perfect Fitness, 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 Consumer Product Safety Act in 
the Federal Register in accordance with the terms of 16 CFR 1118.20(e). 
Published below is a provisionally-accepted Settlement Agreement with 
Perfect Fitness, containing a civil penalty of $425,000.00.

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 August 26, 2011.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 11-C0009, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Jennifer C. Argabright, Trial 
Attorney, Division of Compliance, Office of the General Counsel, 
Consumer Product Safety Commission, 4330 East West Highway, Bethesda, 
Maryland 20814-4408; telephone (301) 504-7808.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: August 8, 2011.
Todd A. Stevenson,
Secretary.

United States of America Consumer Product Safety Commission

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Perfect Fitness and staff 
(``Staff'') of the United States Consumer Product Safety Commission 
(``Commission'') hereby enter into this Settlement Agreement 
(``Agreement'') under the Consumer Product Safety Act (``CPSA''). The 
Agreement and the incorporated attached Order resolve Staff's 
allegations set forth below.

The Parties

    2. Staff is the staff of the Commission, an independent federal 
regulatory agency established pursuant to, and responsible for, the 
enforcement of the CPSA, 15 U.S.C. 2051-2089.
    3. Perfect Fitness is a privately-held Limited Liability Company, 
organized and existing under the laws of the State of California, with 
its principal corporate office located at 1750 Bridgeway, Suite A100, 
Sausalito, California 94965.

Staff Allegations

    4. Between January 2008 and August 2008, Perfect Fitness 
manufactured and distributed approximately ten thousand (10,000) 
``Perfect Pullup'' exercise equipment (``Subject Products''). Retailers 
continued to sell the Subject Products until they were recalled on 
February 17, 2011. The Subject Products sold for approximately $80-$100 
through major sporting goods stores, online retailers, and through 
direct television marketing.
    5. The Subject Products are ``consumer products'' and, at all 
relevant times, Perfect Fitness was a ``manufacturer'' of these 
consumer products, which were ``distribute[d] in commerce,'' as those 
terms are defined or used in sections 3(a)(5), (8), and (11) of the 
CPSA, 15 U.S.C. 2052(a)(5), (8), and (11).
    6. The Subject Products are defective because the handle can break 
during use, resulting in consumers falling to the floor.
    7. Perfect Fitness received its first complaint involving handle 
breakage in

[[Page 49752]]

May 2008. In response, Perfect Fitness initiated an internal review. 
The internal review revealed that an unusual number of purchasers were 
returning or requesting replacement Subject Products. Some purchasers 
of the returned products indicated that the handles had broken during 
use.
    8. In June 2008, Perfect Fitness began re-testing the handle 
design. The firm preliminarily concluded that the handle design was 
defective because the material used to make the handles was not strong 
enough to withstand the pressure load needed to perform properly.
    9. In July 2008, Perfect Fitness redesigned the Subject Products in 
an effort to correct the design defect.
    10. By August 2008, Perfect Fitness received additional 
confirmation through a testing agency that the original design would 
experience handle failure at an average load of 158.3 pounds. The 
testing agency additionally confirmed that the redesigned handles would 
be able to withstand a higher pressure load without handle breakage.
    11. On August 1, 2008, Perfect Fitness began production of the 
redesigned Subject Product, and discontinued distribution of the 
Subject Products without notifying the Commission of the problems 
associated with handle breakage.
    12. By the end of August 2008, Perfect Fitness received at least 
eleven (11) more reports of handles breaking, resulting in injuries to 
consumers.
    13. On March 30, 2010, Perfect Fitness posted a notice on its Web 
site indicating that consumers could replace the Subject Products free 
of charge. In communications with consumers, representatives of Perfect 
Fitness represented that the original handles were ``inferior'' and 
could result in an ``accident.'' By this date, Perfect Fitness was 
aware of at least twenty-three (23) incidents of handle breakage 
causing injury.
    14. Despite knowledge of the information set forth in paragraphs 5-
13, Perfect Fitness did not report to the Commission until December 20, 
2010. By that time, Perfect Fitness was aware of at least forty-five 
(45) specific complaints of injury due to handle breakage and had 
received over two thousand (2,000) requests for replacement of the 
Subject Product.
    15. Although Perfect Fitness had obtained sufficient information to 
reasonably support the conclusion that the Subject Product contained a 
defect which could create a substantial product hazard, or created an 
unreasonable risk of serious injury or death, Perfect Fitness failed to 
inform the Commission immediately of such defect or risk, as required 
by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. Sec.  2064(b)(3) 
and (4). In failing to inform the Commission immediately of the defect 
or advising that the defect involved the Subject Product, Perfect 
Fitness knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 
2068(a)(4), as the term ``knowingly'' is defined in section 20(d) of 
the CPSA, 15 U.S.C. 2069(d).
    16. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Perfect 
Fitness is subject to civil penalties for its knowing failure to 
report, as required under section 15(b) of the CPSA, 15 U.S.C. 2064(b).

Response of Perfect Fitness

    17. Perfect Fitness denies the allegations of Staff that the 
Subject Products contain a defect which could create a substantial 
product hazard or create an unreasonable risk of serious injury or 
death, and denies that it knowingly violated the reporting requirements 
of Section 15(b) of the CPSA, 15 U.S.C. 2064(b).

Agreement of the Parties

    18. Under the CPSA, the Commission has jurisdiction over this 
matter and over Perfect Fitness.
    19. In settlement of Staff's allegations, Perfect Fitness shall pay 
a civil penalty in the amount of four hundred twenty-five thousand 
dollars ($425,000.00) within twenty (20) calendar days of receiving 
service of the Commission's final Order accepting the Agreement. The 
payment shall be made electronically to the CPSC via http://www.pay.gov.
    20. The parties enter into this Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Perfect Fitness 
or a determination by the Commission that Perfect Fitness violated the 
CPSA's reporting requirements.
    21. Upon provisional acceptance of the Agreement by the Commission, 
the Agreement shall be placed on the public record and published in the 
Federal Register in accordance with the procedures set forth in 16 CFR 
1118.20(e). If the Commission does not receive any written request not 
to accept the Agreement within fifteen (15) calendar days, the 
Agreement shall be deemed finally accepted on the 16th calendar day 
after the date it is published in the Federal Register, in accordance 
with 16 CFR 1118.20(f).
    22. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Perfect Fitness knowingly, voluntarily, 
and completely waives any rights it may have in this matter to the 
following: (a) An administrative or judicial hearing; (b) judicial 
review or other challenge or contest of the Commission's actions; (c) a 
determination by the Commission of whether Perfect Fitness failed to 
comply with the CPSA and the underlying regulations; (d) a statement of 
findings of fact and conclusions of law; and (e) any claims under the 
Equal Access to Justice Act.
    23. The Commission may publicize the terms of the Agreement and the 
Order.
    24. The Agreement and the Order shall apply to, and be binding 
upon, Perfect Fitness and each of its successors and/or assigns until 
the obligations described in Paragraph 19 have been fulfilled to the 
satisfaction of the Commission.
    25. The Commission issues the Order under the provisions of the 
CPSA, and a violation of the Order may subject Perfect Fitness and each 
of its successors and/or assigns to appropriate legal action until the 
obligations described in Paragraph 19 have been fulfilled to the 
satisfaction of the Commission.
    26. The Agreement may be used in interpreting the Order. 
Understandings, agreements, representations, or interpretations apart 
from those contained in the Agreement and the Order may not be used to 
vary or contradict the terms or the Agreement and the Order. The 
Agreement shall not be waived, amended, modified, or otherwise altered 
without written agreement thereto, executed by the party against whom 
such waiver, amendment, modification, or alteration is sought to be 
enforced.
    27. If any provision of the Agreement or the Order is held to be 
illegal, invalid, or unenforceable under present or future laws 
effective during the terms of the Agreement and the Order, such 
provision shall be fully severable. The balance of the Agreement and 
the Order shall remain in full force and effect, unless the Commission 
and Perfect Fitness agree that severing the provision materially 
affects the purpose of the Agreement and Order.

Perfect Fitness LLC

    Dated: July 28, 2011
By:--------------------------------------------------------------------
Alden Mills, Chief Executive Officer
Perfect Fitness
1750 Bridgeway
Suite A100
Sausalito, California 94965
    Dated: July 28, 2011
By:--------------------------------------------------------------------
Mark Friedman, President

[[Page 49753]]

Perfect Fitness
1750 Bridgeway
Suite A100
Sausalito, California 94965
    Dated: July 29, 2011
By:--------------------------------------------------------------------
Paul Rubin, Esq.
Patton Boggs LLP
2550 M Street, NW.,
Washington, DC 20037
Counsel for Perfect Fitness

U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF

Cheryl A. Falvey, General Counsel

Mary B. Murphy, Assistant General Counsel

    Dated: August 4, 2011
By:--------------------------------------------------------------------
Jennifer C. Argabright, Trial Attorney
Division of Compliance
Office of the General Counsel

United States of America

Consumer Product Safety Commission

Order

    Upon consideration of the Settlement Agreement entered into between 
Perfect Fitness and the U.S. Consumer Product Safety Commission 
(``Commission'') staff, and the Commission having jurisdiction over the 
subject matter and over Perfect Fitness, and it appearing that the 
Settlement Agreement and the Order are in the public interest, it is
    Ordered that the Settlement Agreement be, and is, hereby, accepted; 
and it is
    Further ordered, that Perfect Fitness shall pay a civil penalty in 
the amount of four hundred and twenty-five thousand dollars 
($425,000.00) within twenty (20) days of service of the Commission's 
final Order accepting the Settlement Agreement upon counsel for Perfect 
Fitness identified in the Settlement Agreement. The payment shall be 
made electronically to the CPSC via http://www.pay.gov. Upon the 
failure of Perfect Fitness to make the foregoing payment when due, 
interest on the unpaid amount shall accrue and be paid by Perfect 
Fitness at the federal legal rate of interest set forth at 28 U.S.C. 
1961(a) and (b).

    Provisionally accepted and provisional Order issued on the 8th 
day of August, 2011.
    By Order of the Commission.

Todd A. Stevenson, Secretary
U.S. Consumer Product Safety Commission
[FR Doc. 2011-20463 Filed 8-10-11; 8:45 am]
BILLING CODE 6355-01-P