the party in question to get the word to the consumer product safety commission either through reporting or there's the option if the commission finds out through other and you know that there's actual knowledge doesn't make sense for reporting obligation to to go up in smoke if you can somehow manage to avoid reporting for a certain period of time whether it's forty eight hours or twenty four hours or two years or whatever that your client didn't hit you didn't complete the report i will say until it actually reports to the commission and so why is why is not doing a report something that makes any sense well your honor that the government's really was that it was may two thousand and nine no that was that was when the the trigger for the duty but the do right  reporting duty it's not a duty to get a permit where if you get a permit if you can do something if you go ahead and build the building without a permit you you've already you've you've done everything you need to do to violate that law but you until you didn't report why your honor the the duty to report here doesn't rise for the first time the government says in may two thousand and nine and the court found that in the penalty hearing but when you listen to yourself i mean so all you have to do is just brazen it out and keep your secrets very close to the chest and you can completely avoid the entire reporting scheme under the consumer product safety  limitations begin to run then we're going to have battle over how a company was first obliged to make a report and that might be difficult to resolve when you  have you know a long period of time of rich many complaints were received and perhaps various investigations are conducted and modifications were implemented and for heaven's sake congress want the you have to report as soon as you know that a product might be dangerous to the course they want that siri but on the other hand put yourself in the position of the government for a moment why would you say that if somebody manages to keep quiet and know that means the consumer product safety commission has no idea that these coffee pots are breaking or the correct handles are falling off or whatever is going on with these things are the of when was the duty triggered and of course there's a claim of concealment you didn't report to the commission they said we violated duty to report which started in may of two thousand and nine because they recognized that there was a defect in the coffee pot at that point that's quite different from a discovery well but your honor that that meets out of the statute the notion of first accrued and if i may just to make this point the government's point was that you should have reported in may of two thousand  not because you knew there were a lot of claims out there there have been sixty some reports and for minor injuries reported but because you knew there was a defect and you knew this was hot coffee and therefore there was a potential for harm and the court today and you  here is there was no evidence of any catastrophic failure there's no situation where the whole hand of falls on what happened is a screw comes loose and it becomes wobbly that's what the evidence is your honor and that's why they didn't report and usually because they were under the mistaken impression that because the injuries were minor they didn't have an obligation to report so the question here for the government is very important they were trying to send a message which they did  safety goals of the statute and i mean you make the injuries are minor but immediately to inform the commission until you know for sure that the commission has been informed already you don't have just pile on but if you don't have that actual knowledge that the commission has been continuing obligation there are various statutes that fall into this category you know whether you're found in the united states without the permission of the attorney general you can say up we didn't find me the first day and sierra case in the tenth circuit where there was a continuing obligation from the beginning of construction to the end the court said it didn't matter because you look for the first crew to get that's a permit situation so i think we'll have procedures much more helpful changes because they said if you do the following things you will be deemed to be in compliance with the injunction then the judge said go out and hire a neutral expert to go and it's very common and injunctions you've probably seen lots of them but your honor here the court never really found that spectrum was likely reason likely to re offend that the court was not happy with the way spectrum had handled this particular situation the consult now under rufo you know after a year or so or some period of time you're free to go and ask the court to eliminate that the court thought it was for the time being important but your honor it was the government's burden to show that it was recently likely the something bad would happen and that's now it's your burden to show that the district court abused its discretion right in choosing that form of injunction right but what the judge stammered is i can't say whether it goes procedures that you have in place now or good or bad the government put in no evidence on that we had an expert came in and said they were and the judge said i can't tell maybe they're not enough so complete until either a report is filed or the government has actual knowledge of the defect and what's not and so what do you do with the language that minnesota receives relying on first of all the language about first a cruel and secondly i'd like to hear what you have to say midwest generation where there's a continuing violation and you effectively violate the statute each day that you don't meet that obligation so a new crime accrues each day and then the effect of that is that the extension time occasions really doesn't begin to run until  is complete because you have a new violation each day alternatively it has been discussed in other cases that the claim does not first accrue until the violation itself is complete but in either case you are the point being and i think this is summarized particularly well in the that if you have a continuing obligation to do something as long as you're in violation of that obligation during the limitations period there's no way that the the statue of limitations on a twenty four sixty two as has been run if that were the case you'd have the circus votes that have already been thousand and twelve after after the company well the company reported in april two thousand and twelve and then there was discussions with the consumer product safety commission and that resulted in a recall  f the product and so that's really the first thing that the consumer product safety commission does any time it gets a report it wants to know what they have to take corrective action so that's the first the day they break ground yesterday yes exactly in effect in that case i think this court mentioned if the statute had said that you need to get a permit while you're operating that would be a continuing offense because that would continue while the operation of the of the plant was an aberration and i think another problem with the tenth circuit case as well is there's a bit of a nomenclature problem it uses the phrase continuing violation to it distinguishes repeated violations where i think this court has used the term continuing relationship more in  that day you violated the statute that as long as you did that within the statute of limitations period done it's timely and i think you know in this case it's particularly egregious what happened here because you have a company that's saying yes we back in ma if you know sixty or so reports are going to duty to report but because we you know if we had managed to hide that for five years you know there was mounting evidence of problems six hundred reports by the end of the day so these are trivial prop any you're hospitalized or anything as a result but we're talking about hot coffee that's being pulled out from underneath a desk or i'm going to happen under way out and it's like the handles breaking off and so you know the fact that no one was more seriously hurt is fortunate but but certainly this was a serious problem and it wasn't a case where there were a couple isolated reports of something going wrong this was a case where there were sixteen under the ultimate lee reports that were mounting over time occluding multiple reports of burns and so forth whatever happened to the that their products meet safety standards and so forth they have for example a consumer facing department that takes consumer complaints and so they have an engineering department that engineer admit i have a couple of things at home that i had to take and screw you know and who's the handle she you know the night maybe that's a typical problem with other products well their brief says they sell more than twenty four million products per year cross we're having a little technical problem this morning but you guys will take care of that anyway sorry assume that there are other companies who prosecuted for this and would be under a similar  the independent consultant apartment for example is a common feature of these settlements is that it's a common feature of settlements but it's also with judges equitable exactly to do that it's a way of making things concrete actually which usually companies like because if you're faced with a contempt possibility it's very important that an injunction not be vague you would strike it down if it were yesterday if you are in fact that's that was spectrums argument initially that the that this injunction is to be right if you're the judge we went through this systems for compliance and i see so this is one time one time and then make recommendations and then you know then they can litigate the recommendations that they want or they can implement them and they'll have satisfied i think that aspect of the injunction ok one thing i had to keep in mind is that there's no dispute that spectrum already had a lot of compliance systems in place and what the court found is that they made a mistake by treating this as a quality proper me safety problem and there was a lack of communication between the engineers and the safety compliance people so like spectrum is a large company itself a lot of consumer products appliances and it has this whole  advocacy in place for compliance and what the court did here is it didn't find that the current procedures are inadequate in any way the government didn't argue that they were inadequate in any way because the government says that's your you know it's for a company to do and yet we get an injunction to say behave in the future even though the isolated occurrence happened what five years ago that they didn't report that they did and they said it was yourself are saying to do anything that they're not already doing other than listen to the recommendations of this consultant i'm going to report you'll go back to the court and you'll say ok we've got the report here's our response the court says you don't have to implement anything that you don't moving on so i you know and i thought you were actually make a more ambitious argument that the statute didn't even allow well your interactions and i mean his well that requires a strange reading of the word any in my opinion but there are other statutes that say restraining pre professional work some kind of restrict one that is friendly but they do say any and you junctions very frequently are forward looking right b the class action and they actually recalled everything they we called both the defective units and the ones that they had sold after they fixed and so they just recall everything and shortly after that they discontinued the pro and yet they said and so this is not the kind of place well where we were going off and deliberately trying to hide ok thank you very much thanks to both counsel we will take the case