In the

United States Court of Appeals

For the Seventh Circuit

No. 18-1785

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SPECTRUM BRANDS, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the 

Western District of Wisconsin

No. 3:15-cv-00371-wmc — William M. Conley, Judge.

ARGUED NOVEMBER 1, 2018 — DECIDED MAY 9, 2019

Before WOOD,ChiefJudge, andMANION and ROVNER,Circuit

Judges.

ROVNER, Circuit Judge. The district court found that Spectrum Brands, Inc. (“Spectrum”) violated section 15(b) of the

Consumer Product Safety Act (“CPSA” orthe “Act”), 15 U.S.C.

§ 2064(b)(3), when its subsidiary failed to timely report to the

government a potentially hazardous defect in its Black &
2 No. 18-1785

Decker SpaceMaker coffeemaker despite years’ worth of

consumer complaints about the product. Following an evidentiary hearing as to the appropriate remedy for the reporting

violation, the court entered a permanent injunction which, in

its final form, requires Spectrum to adhere to its newlyimplemented CPSA compliance practices and to retain an

independent consultant to recommend additional modifications to those practices. Spectrum appeals, contending both

that the government’s late-reporting claim is barred by the

statute of limitations, that the district court had no authority to

enter a forward-looking injunction, and that the court otherwise abused its discretion in awarding permanent injunctive

relief, including the requirement that it engage the expert.

Finding no merit in any of these challenges, we affirm the

judgment.

I.

Spectrum is a global, diversified consumer products

company headquartered in Middleton, Wisconsin. During the

years relevant to this action, Spectrum distributed to retailers

more than 24 million individual products per year across more

than 500 stock keeping units. Among the products it sold was

a line of under-the-cabinet Black & Decker SpaceMaker

coffeemakers, distributed by its subsidiary, Applica Consumer

Products, Inc. (“Applica”).1

1 Applica imported the Black & Decker coffeemakers from China and

distributed them to retailers from 2008 to 2012. Applica became a whollyowned subsidiary of Spectrum in 2010 and then merged with Spectrum in

2014. At the time of the merger, Spectrum assumed all of the assets and

(continued...)
No. 18-1785 3

As a purveyor of consumer products, Spectrum is legally

obligated to notify the U.S. Consumer Products Safety Commission (“CPSC” or “Commission”) of potentially hazardous

defects in any of its products. Specifically, section 15(b) of the

CPSA requires a manufacturer, distributor, or retailer of a

consumerproduct “who obtains informationwhich reasonably

supports the conclusion that such product” contains “a defect

which— ... could create a substantial product hazard” to

“immediately” inform the Commission of said defect, “unless

such manufacturer, distributor, or retailer has actual knowledge that the Commission has been adequately informed of

such defect ... .” 15 U.S.C. § 2064(b)(3). A “substantial product

hazard” is one which poses a “substantial risk of injury to the

public.” Id. § 2064(a)(2). The duty to report such a hazard

“immediately” means within 24 hours of becoming aware of

the hazard. 16 C.F.R. § 1115.14(e).2 And a manufacturer,

distributor, or retailer can be said to have “actual knowledge”

that the Commission has already been adequately informed of

a defect (relieving it of the obligation to make a report) only if

the manufacturer, distributor, or retailer has previously

1

 (...continued)

obligations of Applica, and there is no dispute that the assumed liabilities

include Applica’s liability with respect to the events underlying this case.

For the sake of simplicity, then, we have treated Spectrum as the distributor

of the coffeemakers at issue here.

2

The regulations allow a “reasonable time” for a company to investigate

the problem with its product when the information in its possession is “not

clearly reportable” to the Commission. 16 C.F.R. § 1115.14(c). A period of

up to ten days (excluding weekends and holidays) is deemed a presumptively reasonable time period for that purpose. See id. §§ 1115.14(a), (d). 
4 No. 18-1785

disclosed the defect in a section 15(b) report to the CPSC or if

the Commission itself indicates that it has already been

adequately informed of the defect. 16 C.F.R. § 1115.3(a).

Separately, the statute makes it unlawful for any person to “fail

to furnish information required by section 2064(b).” 15 U.S.C.

§ 2068(a)(4).

By February 2009, Spectrum’s third-party customer call

center had received a number of complaints from consumers

regarding the SpaceMaker coffeemakers, including in particular complaints that the plastic handle on the coffeemaker’s 12-

cup carafe had broken. In one instance, the failure of a handle

had caused a consumer to suffer a burn from the hot coffee in

the carafe. It appears from the record that when the carafe

handle failed, typically its top portion (which was secured by

a screw) detached from the glass carafe, while the bottom of

the handle (which was fastened by a metal band running

around the bottom of the carafe) remained securely in place.

This caused the carafe to tip or wobble in the consumer’s hand.

When the carafe was full of hot coffee, the sudden movement

could cause the consumer to spill the coffee or drop the carafe

altogether.

In April 2009, in the face of continuing complaints about

broken handles, Spectrum commenced an investigation which

culminated in a decision to modify the design of the carafe

handle. The manufacturer was instructed to cease fabricating

the original version of the carafe and to scrap any units already

in production. Spectrum began stocking coffeemakers with the

modified handle beginning in May. Rather than ceasing sales

of the original coffeemakers with the problematic carafe,

however, Spectrum implemented a “rolling change” pursuant
No. 18-1785 5

to which it continued to sell the older versions so long as they

remained in stock. Although Spectrum has assumed that the

engineering change fixed the problem with the carafe handle,

there is no proof in the record as to whether all of the consumer complaints that Spectrum received about the carafe

prior to the eventual recall of the coffeemakers in 2012 were

limited to the original version of the carafe. 

Meanwhile, Spectrum continued to receive complaints

about broken handles on the carafes. By the end of 2009, it had

received an additional 300 such complaints, which included

more than a dozen reports of burns or lacerations. During this

time, the CPSC itself received a report about a faulty handle,

and the Commission, consistent with its practice, passed the

report on to Spectrum without investigation, reminding the

company of its duty under section 15(b) to notify the Commission if Spectrum was aware of a potentially hazardous defect

in its product. Spectrum did not file a section 15(b) report at

that time.

Over the course of the next two years, the company

remained silent about the carafe handle even as more complaints of handle failures and resulting injuries made their way

to Spectrum. During this time, the CPSC itself received and

forwarded another seven broken-handle reports to Spectrum.3

3

The fact that Spectrum did not respond more proactively to the steady

stream of complaints appears to have been the result of both a skepticism

with respect to consumer complaints generally as well as an internal

practice as to when such complaints merited investigatory followup. The

coffeemaker, including the carafe, had been thoroughly tested before it was

(continued...)
6 No. 18-1785

Not until April 2012 did Spectrum finally file a section 15(b)

report with the Commission. The report was what the CPSC

called a “fast-track” report which indicated the company’s

intent to recall the coffeemaker. One month earlier, a class

action suit had been filed against Spectrum alleging that there

was a design defect in the carafe handle, and that suit evidently

persuaded the company that the best course of action was to

recall the product entirely, including models with both the

original and re-engineered carafe handles. The report as

amended advised the Commission that Spectrum had received

3

 (...continued)

placed on the market, so the company had reason to believe that there was

no fault in the design of the carafe. The testimony presented to the district

court suggests that it is not uncommon for a consumer to complain about

a broken product and seek a refund or replacement based on a purported

defect in the product, when in fact it is the consumer who has caused the

product to break through his own misuse or clumsy handling. Spectrum

(really, Applica) thus had a practice of not investigating its products for

potential design and/or safety flaws unless a consumer was willing to

return the broken product to the company for inspection. Early on, two

consumers did return failed carafes to the company, and it was the

company’s investigation as to those failures that resulted in the reengineering of the carafe handle in 2009. At that point, Spectrum evidently

considered any problem with the carafe to have been solved. The company

viewed the ongoing complaints about the carafe as a quality-control

problem with the production of the carafe rather than a safety issue. And

Applica’s prior experience with another coffeemaker, as to which it filed a

report with the Commission but was required to take no remedial action,

lulled the company into thinking there was no need to file a report as to the

Black & Decker carafe.
No. 18-1785 7

over 1,600 complaints of handle failures4

and more than 60

reports of associated injuries to consumers.5 Two months later,

in June 2012, Spectrum and the CPSC jointly announced a

recall of the defective coffeemakers.6 By the time the recall was

announced, Spectrum had sold some 159,000 of the coffeemakers, with the majority of them having been sold by

December 2009.

Despite the recall, due to gaps in its inventory-control

procedures, Spectrum inadvertently continued to sell the

recalled coffeemakers.7 By June of 2013, it had sold another 641

such coffeemakers. A secondary recall was implemented to

reach those coffeemakers. At that point, sales of the product

finally ceased.

4 A long-serving CPSC employee would later testify that this number of

complaints was extremely high for a product—perhaps the most he had

seen in his two decades at the Commission. 

5

Some 900 of these complaints were received after Spectrum took over

Applica, the importer and distributor of the coffeemakers, in 2010.

6 A section 15(b) report would ordinarily trigger an investigation by the

Commission to determine whether, inter alia, a recall of the product was

appropriate. However, because Spectrum had signaled its intention to

voluntarily recall the coffeemaker, no such investigation was necessary. 

7

Spectrum had placed a product hold on the recalled coffeemakers, which

stopped distribution of units already on its warehouse shelves, but the hold

did not reach products in transit from China. When the latter units arrived

at the company’s warehouse, they were erroneously released for distribution.
8 No. 18-1785

In June 2015, three years after Spectrum recalled the

defective coffeemakers, the government filed a civil complaint

against the company in the district court. As relevant here, the

complaint alleged that Spectrum, beginning in February 2009,

obtained information reasonably supporting the conclusion

that the coffeemakers it was distributing contained a hazardous defect or posed an unreasonable risk of injury, failed to so

inform the CPSC for several years thereafter, and thereby

knowingly violated section 15(b) of the Act. § 2064(b)(3).8 The

complaint also alleged that Spectrum committed a second

violation of the Act by continuing to distribute or sell coffeemakers that it had previously recalled. See 15 U.S.C.

§ 2068(a)(2)(B). 

The CPSA authorizes civil penalties of up to $100,000 for

each knowing violation of the Act, not to exceed a ceiling of

$15,150,000 for “any related series of violations.” 15 U.S.C.

§ 2069(a)(1); 76 Fed. Reg. 71,554, 71,554–55 (Nov. 18, 2011)

(providing forinflation-relatedincreases tomaximum penalty).

The statute also authorizes the government to seek injunctive

8

 The statute separately requires the disclosure of a defect which “creates

an unreasonable risk of serious injury or death.” § 2064(b)(4). The government’s complaint contained a count alleging that Spectrum’s coffeemaker

contained such a defect. However, Spectrum disputed the notion that its

coffeemaker posed a risk of causing anything more than minor injuries; and

because the district court found that the defect in the coffeemaker could

create a “substantial product hazard,” see § 2063(b)(3), and Spectrum was

required to give notice to the Commission on that basis, the court saw no

need to determine whether notice was additionally required on the ground

that the product posed a risk of serious injury or death. See United States v.

Spectrum Brands, Inc., 218 F. Supp. 3d 794, 822 n.24 (W.D. Wis. 2016). 
No. 18-1785 9

relief in orderto “[r]estrain any violation of” the Act. 15 U.S.C.

§ 2071(a)(1). The government sought both forms of relief in its

complaint against Spectrum.

Spectrum did not contest its liability for distributing

recalled products, and the district court on summary judgment

deemed the company liable for violating its reporting obligation under section 15(b). United States v. Spectrum Brands, Inc.,

218 F. Supp. 3d 794, 818–22 (W.D. Wis. 2016). The uncontested

facts indicated to the district court that, as early as May 2009

(when the company had already received 60 reports of broken

carafe handles and four consumer burns), and certainly no

later than June 2010 (by which time it was aware of over 700

handle failures and 35 injuries), Spectrum possessed information supporting a conclusion that the carafe handle on the

coffeemakers the company was distributing contained a defect

which could create a substantial product hazard. Id. at 821–22.

Yet, Spectrum did not “immediately” report the problem to the

CPSC, as section 15(b) required, but instead delayed its report

for another two years. See id. at 820–21.

The court rejected Spectrum’s contention that the government’s section 15(b) claims were barred by the applicable fiveyear statute of limitations. 218 F. Supp. 3d at 815–17; see 28

U.S.C. § 2462. Spectrum’s theory was that the limitations

period began to run in May 2009, when (as the district court

postulated) its duty to report arguably first arose, and expired

in May 2014, more than a year before the government filed

suit. Id. at 815. The court reasoned that the reporting obligation

imposed by section 15(b) is a continuing one, such that a

company’s violation of its duty is not complete until such time

as the company finally submits a report to the Commission or
10 No. 18-1785

acquires actual knowledge that the Commission has otherwise

been adequately informed of the product defect. Id. at 817.

Consequently, in the district court’s view, a cause of action for

breach of the reporting requirement does not accrue until this

time. Id. A contrary understanding, the court pointed out,

would encourage a company that has not immediately filed a

section 15(b) report with the Commission to continue to

withhold information about a product defect until such time as

the limitations period has run, and thereby undermine the

statutory goal of encouraging the timely reporting of product

failures in order to protect the public from harm. Id. Deeming

a failure to report as a discrete, time-limited violation struck

the court as “nonsensical,” particularly where the egregiousness of the failure to report increases exponentially over time

with continuing consumer complaints of product failures and

injuries, as occurred in this case. Id.

The court likewise rejected Spectrum’s contention that the

court lacked authority underthe CPSA to impose the forwardlooking injunctive relief on the company that the government

had sought (in addition to monetary penalties) in its prayerfor

relief. Because the statute authorizes injunctive relief as

necessary to “[r]estrain any violation” of the Act, 15 U.S.C.

§ 2701(a)(1), the court inferred that its power to award injunctive relief included the power to enjoin future violations. 218

F. Supp. 3d at 823–25. The government, it concluded, had put

forth a plausible case that Spectrum’s “knowing, arguably

outrageous, conduct” warranted such an injunction. Id. at 825.

The court therefore declined to dismiss this portion of the

government’s prayer for injunctive relief, reserving judgment
No. 18-1785 11

as to whether an injunction was warranted pending further

development of the facts. Id.

Following an evidentiary hearing as to the appropriate

remedies for Spectrum’s violations of the CPSA and a thorough canvassing of the criteria set forth in the statute and

regulations, see 15 U.S.C. § 2069(b); 16 C.F.R. §§ 1119.1, 1119.4;

R. 234 at 5–12, the district court issued a decision imposing

both fines and a permanent injunction. The court ordered the

company to pay civil penalties totaling $1,936,675—$821,675

for the section 15(b) reporting violation and $1,115,000 for the

sale of recalled products. R. 234 at 12–16. The court also

concluded that the government had established a reasonable

likelihood of future violations warranting a permanent

injunctionrequiring Spectrum to reformits internal compliance

programs and procedures. R. 234 at 17–21. The court found

that a key problem contributing to the company’s failure to

timely report the problem with its problematic coffee carafe

was a lack of communicationamong employees responsible for

evaluating consumer complaints, those employees with

knowledge of the product’s design and defect, and senior

management personnel. R. 234 at 18–19. Similar communication failures, along with the failure to implement relatively

simple measures to prevent the distribution of recalled

products, largely explained Spectrum’s continuing sales of the

recalled coffeemaker. R. 234 at 19. The court acknowledged a

report prepared by Spectrum’s expert witness identifying a

number of procedures the company was utilizing to gather,

evaluate, and escalate product information that might require

reporting to the CPSC. But that report did not address whether

these same procedures were in place during prior years, when
12 No. 18-1785

Spectrum had failed to report the carafe-handle defect to the

Commission despite ongoing reports of handle failures and

injuries. Nor did the report discuss whether these procedures

were written, disseminated, and enforced within the company

and whether appropriate company personnel were trained in

these procedures. R. 234 at 19. Moreover, so far as the record

revealed, Spectrum had not commissioned an independent

audit to gauge the efficacy of these measures. R. 234 at 21. The

court found it telling that senior engineering and global quality

personnel at Spectrum could not recall meaningful discussions

of the problems with the carafes priorto 2012, notwithstanding

the receipt of consumer complaints beginning in 2009. R. 234 at

20. Consequently, the court was left with serious doubts as to

the efficacy of the efforts Spectrum had undertaken to address

the faults that had caused the company to violate its reporting

obligations under section 15(b) and to prevent the continued

sales of recalled products. 

[Q]uestions ...remain regarding the extent to which

Spectrum hasundertakenameaningfulindependent

audit of its CPSA reporting and recall obligations,

and addressed the deficiencies in its systems and

programs that led to its violation of these obligations. While Spectrum appears to have made some

efforts to prevent similar violations from occurring

in the future, the seriousness of its offens[es] to date

require that the systems that it has in place to comply with the CPSA should by now be rigorous and

well-defined. ... Accordingly, the court finds that

plaintiff has made an adequate showing of the need

for permanent injunctive relief to address Spec-
No. 18-1785 13

trum’s auditing, compliance and training regarding

compliance with the CPSA’s reporting requirement

and post-recall sale prohibition going forward.

R. 234 at 21. The court went on to enter a forward-looking

permanent injunction which, among other things, required

Spectrum to “maintain sufficient systems, programs, and

internal controls to ensure compliance with the CPSA and the

regulations enforced by the CPSC” and to “implement appropriate improvements to its compliance programs” within six

months of the court’s order. R. 234 at 22. The order also

required Spectrum to disseminate copies of the court’s summary judgment and penalty decisions to its directors, officers,

management personnel, and in-house counsel to the extent

they were involved in the manufacturing and distribution of

consumer products in the United States. R. 234 at 22. 

Spectrum filed a motion asking the court for a partial stay

of its judgment. It asked the court to stay both the penalty

imposed forthe section 15(b) late-reporting violation as well as

the bulk of the injunction the court had entered, both of which

it intended to appeal.9 As to the injunction, Spectrum argued

that a stay was warranted, inter alia, because the terms of the

injunction were so vague as to render it nothing more than a

command to “obey the law.” R. 237 at 5–6; see E.E.O.C v.

AutoZone, Inc., 707 F.3d 824, 841–42 (7th Cir. 2013) (outlining

the concerns presented by such an injunction). Before the court

ruled on the stay request, Spectrum filed its notice of appeal.

9

Spectrum did not seek a stay as to the provision in the injunction

requiring it to distribute copies of the court’s summary judgment and

penalty opinions to appropriate company personnel.
14 No. 18-1785

The district court subsequently granted the stay request in

part, agreeing to place the late-reporting penalty on hold but

not the injunction. R. 243. The court acknowledged that in

setting forth what the injunction required of Spectrum, it might

have “fall[en] short” of the specificity required by Federal Rule

of Civil Procedure 65(d)(1)(B) and (C). R. 243 at 4. With an eye

to correcting that problem, the district court ordered Spectrum

to file a memorandum detailing the specific steps it had

already taken to ensure compliance with the CPSA and the

CPSC’s regulations; it also ordered the government to file a

response as to the sufficiency of the measures Spectrum had

taken along with any proposals of its own. R. 243 at 4. 

After reviewing the memoranda the parties subsequently

submitted, the court issued an opinion which modified the

terms of the injunction in orderto clarify what specific conduct

would constitute compliance with the injunction’s directive to

improve and maintain sufficient systems, programs, and the

like to ensure compliance with the statute and regulations.

United States v. Spectrum Brands, Inc., 2018 WL 502736 (W.D.

Wis. Jan. 19, 2018). Cognizant of the limits on its authority to

alter the injunction in view of Spectrum’s pending appeal, the

court proceeded on the assumption that it could, at a minimum, “preserve the status quo pending appeal and clarify the

injunction’s specific requirements.” Id. at *2; see Fed. R. Civ. P.

62(d) (as amended effective 12-1-2018); Newton v. Consol. Gas

Co. of N.Y., 258 U.S. 165, 177–78, 42 S. Ct. 264, 267 (1922);

Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480 n.14 (9th

Cir. 1994). Toward that end, the court incorporated into the

injunction six specific measures that Spectrum represented it

had already taken to improve its compliance processes and
No. 18-1785 15

which the court found to be “consistent with the spirit of [its]

original permanent injunction, if not its letter.” 2018 WL

502736, at *3.10 As modified, the injunction required Spectrum

to:

(1) Maintain the position of SeniorDirector, Global

Quality (or its equivalent) with qualifications

and authority to monitor (and if necessary,

enhance) Spectrum’s policies to ensure future

product quality and safety;

(2) Regularly track product safety information,

including product return rates, call center data,

and product “star” ratings by consumers on

various websites, and evaluate that information to determine whether issues are being

identified and appropriately handled;

(3) Document calls and written communications

regarding potential and actual incidents and

injury information, collect products that are the

subject of reports by consumers or retail partners of potential safety issues, analyze those

products and bring the results of any such

analysis to the attention of Spectrum’s Senior

Director, Global Quality (orits equivalent), and

10

Spectrum had evidently begun to implement some reforms to Applica’s

complianceprocedures when Applica first became a subsidiary ofSpectrum

in 2010. 
16 No. 18-1785

others as appropriate, to determine whether

Spectrum has a reporting obligation to the

CPSC;

(4) Implement a formal “Request for Corrective

Action” procedure whereby quality engineers

and products safety managers can make a

request to change a product based on various

factors, including consumer complaints and

incidents;

(5) Maintain a “Product Hold Process” (or its

equivalent) through which the manufacture

and distribution of products can be placed on

hold for design issues, manufacturing issues,

performance issues, and safety issues, including any and all such products that may be

returned to Spectrumby a warehouse, distributor, customer or otherwise to prevent the sale

of recalled products; and

(6) Ensure compliance training of responsible

employees on CPSA and/or CPSC regulations,

particularly with respect to section 15(b)’s

reporting requirement under 15 U.S.C.

§ 2064(b)(3)-(4) and the prohibition of the sale

of recalled products under 15 U.S.C.

§ 2068(a)(2)(B).

Id. at *2–*3, *4–*5 (emphasis in original). The court agreed with

the government, however, that these measures by themselves

might not be sufficient to ensure Spectrum’s compliance with

its legal obligations and avoid a repetition of the events that
No. 18-1785 17

had brought Spectrum into court here. Id. at *4. The court

accepted the government’s suggestion that Spectrum be

required to engage a professional consultant from outside the

company to evaluate Spectrum’s compliance processes and

make recommendations for additional improvements. In the

court’s view, “[h]iring an outside consultant is a straightforward, specific way for Spectrum to ensure its good faith

compliance with the permanent injunction, rather than

continuing to live under the vagueness of the admonition to

‘obey-the-law’ currently contained in the permanent injunction.” Id. The court therefore added the following command as

a final measure Spectrum was required to undertake:

(7) Defendant shall retain, at its own expense, an

independent expert, who, by reason of background, training and education is qualified to

assist in reviewing and recommending

changes, if necessary, to Spectrum’s comprehensive safety program for CPSA compliance,

with particular emphasis on compliance with

the section 15(b) reporting requirement and

procedures necessary to prevent the sale of

recalled products.

a. The parties may have 90 days to agree upon

an independent expert, or if the parties

cannot reach agreement, for each party to

designate one expert with whom the court

will consult to identify a neutral expert.

b. Following the retention of the neutral expert and that expert’s review, Spectrum
18 No. 18-1785

shall have 120 days to implement the recommendations made by that expert in good

faith, unless within 30 days of receiving a

recommendation, Spectrum files a written

challenge in this court on the basis that it is

unreasonable (in timeframe or otherwise)

or overreaches the number or severity of

defendant’s past violations of the CPSA, in

which case Spectrum need only implement

that recommendation by further order of

this court.

Id. at *4, *5. The court then added the following provision:

(8) Compliance with ¶¶ 1–7 shall be deemed good

faith compliance with this permanent injunction.

Id. The court recognized that the command to engage an

expert, in contrast with the otherrequirements it had imposed,

went beyond maintaining the status quo. It therefore stayed

enforcement of that requirement pending appeal. Id. at *4.

In view of these alterations to the injunction, the government asked this court to treat the district court’s decision as an

indicative ruling, see Fed. R. Civ. P. 62.1(a)(3), and remand the

case to the district court so that the district court could re-enter

the injunction as modified and eliminate any question about

the district court’s authority to do so with an appeal already

pending. See Fed. R. App. P. 12.1; Seventh Circuit Rule 57; In re

Cent. Ill. Energy Coop., 847 F.3d 873, 874 (7th Cir. 2017) (Ripple,

J., in chambers); United States v. Ray, 831 F.3d 431, 436, 438 (7th

Cir. 2016); United States v. Taylor, 796 F.3d 788, 792 (7th Cir.
No. 18-1785 19

2015); Mendez v. Republic Bank, 725 F.3d 651, 656, 660 (7th Cir.

2013). The government reasoned that although the majority of

the specifications the court had added to the injunction

arguably could be characterized as simple clarifications that

were entirely permissible despite the appeal, the directive to

engage an expert consultant was a more substantive change

that might have exceeded the court’s limited authority.

We granted the government’s motion, remanded the case

to the district court, and dismissed Spectrum’s appeal. 2018

WL 2228179 (7th Cir. Feb. 23, 2018) (Bauer, J.). On remand, the

district court re-entered the injunction as modified, 2018 WL

1704773 (W.D. Wis. Apr. 9, 2018), and Spectrum took a fresh

appeal from the new judgment.

II.

Spectrum’s appeal is focused on two aspects of the remedies the district court ordered for its violations of the CPSA. It

contends that the district court lacked authority to impose the

$821,000 penalty for its section 15(b) reporting violation,

because the government’s suit on that violation was barred by

the statute of limitations. Spectrum does not otherwise challenge the propriety or calculation of the penalty for failing to

report, nor does it challenge in any respect the $1.1 million

penalty the district court ordered for continuing to sell the

SpaceMaker coffeemakers in question afterthey were recalled.

As for the injunction the court entered, Spectrum presses

several arguments: that the court lacked authority to enter

forward-looking injunctive relief; that it abused its discretion

in thinking such relief was appropriate in this case; and that the
20 No. 18-1785

court abused its discretion in requiring the company to engage

an outside expert.

A. Statute of limitations for reporting violations

Section 15(b) does not specify a limitations period for

failure-to-report claims, so we look to the default, catchall

limitations provision for civil penalty actions set forth in 18

U.S.C. § 2462. In relevant part, that provision specifies that “an

action, suit or proceeding for the enforcement of any civil fine,

penalty, or forfeiture, pecuniary or otherwise, shall not be

entertained unless commenced within five years from the date

when the claim first accrued ... .” 

Spectrum argues that because its duty under section 15(b)

was to “immediately” report a potentially hazardous defect in

its product, and because the regulation makes clear that

“immediately”meanswithin 24 hours of obtaining information

reasonably pointing to the existence of such a defect, the

government’s cause of action for Spectrum’s failure to make a

timely report first accrued no later than May 2009, by which

time the company had received from consumers 60 reports of

broken carafe handles and four burns associated with such

failures. In its summary judgment decision, the court found

that Spectrum arguably had a duty to make a report to the

Commission at that point. 218 F. Supp. 3d at 821–22.

11

In

11

The court went on to find that Spectrum had a duty to make a section

15(b) report no later than June of 2010. 218 F. Supp. 3d at 822. But as

Spectrum points out, the court for purposes of calculating the monetary

penalties it imposed on the company took into account the consumer

complaints received in 2009. R. 234 at 13. So for the purposes of resolving

(continued...)
No. 18-1785 21

Spectrum’s view, the five years that section 2462 allowed for

filing suit thus began to run in May 2009 and expired in May

2014, roughly 13 months before the government actually filed

its complaint. 

Like the district court, and for the same reasons, we reject

Spectrum’s contention that the government filed suit too late.

Because, as we shall explain, Spectrum’s failure to report is

properly understood to constitute a continuing violation of its

statutory reporting obligation that did not end until Spectrum

finally submitted a section 15(b) report in 2012, the statute of

limitations did not begin to run until that time. The government thus had five years from the filing of Spectrum’s section

15(b) report to file suit, and it did so well before the limitations

period expired in 2017.

Spectrum contends that the Supreme Court’s decision in

Gabelli v. SEC, 568 U.S. 442, 133 S. Ct. 1216 (2013), forecloses the

notion that the failure to make the report required by section

15(b) is a continuing violation, but because that case addressed

the discovery rule—which the government is not relying upon

here—the case is, in our view, inapposite. In Gabelli, the

government had filed a civil enforcement action charging the

defendants with securities fraud and seeking monetary

penalties for the fraud some six years after the alleged scheme

of securities fraud had ended; as here, section 2462 supplied

the applicable statute of limitations—five years. The government contended the suit was timely because it had only

11

 (...continued)

Spectrum’s argument, we shall assume that its duty to report arose in May

2009.
22 No. 18-1785

discovered the fraud after the scheme was over, and less than

five years before filing suit. However, after noting that the

“standard rule” in such cases was that a claim accrues “when

the plaintiff has a complete and present cause of action,” i.e.,

when the fraud occurs, id. at 448, 133 S. Ct. at 1220 (quoting

Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091, 1095 (2007)),

the Court concluded that this was “the most natural reading of

[section 2462],” ibid. The Court rejected the government’s

invitation to invoke the discovery rule in order to lengthen the

time in which it could bring a suit in such a case. The Court

found no “textual, historical, or equitable reasons to graft a

discovery rule onto the statute of limitations of § 2462.” Id. at

454, 133 S. Ct. at 1224. “The discovery rule exists in part to

preserve the claims of victims who do not know they are

injured and who reasonably do not inquire as to any injury.”

Id. at 450, 133 S. Ct. at 1222. The government was not in a

position to claim the benefit of this rule in Gabelli. 

The government was not a victim seeking recompense for

a self-concealing fraud; rather, it was a regulator seeking to

enforce the securities statutes through civil penalties. And in

the Court’s view, the equities did not warrant giving the

government in the latter capacity the benefit of an extended

statute of limitations. Whereas the typical fraud victim “do[es]

not live in a state of constant investigation” and will have no

reason to cause to search for wrongdoing in the absence of an

apparent injury, the very purpose of a regulatory agency like

the S.E.C. is to root out fraud, and such an agency—unlike the

ordinary private plaintiff—has any number of tools at its

disposal to do so. Id. at 450–51, 133 S. Ct. at 1222. And, whereas

a private victim of fraud typically brings suit seeking recom-
No. 18-1785 23

pense for his injury, the government in an enforcement action

seeks “penalties, which go beyond compensation, are intended

to punish, and label defendants wrongdoers.” Id. at 451–52, 133

S. Ct. at 1223. Moreover, given the arsenal of investigatory

tools available to the government, determining when it should

have been able to discover that a fraud had occurred presents

unique and difficult questions not ordinarily presented in a

case of a fraud perpetrated upon a private person. Id. at 452–53,

133 S. Ct. at 1223–24. “Applying a discovery rule to Government penalty actions is far more challenging than applying the

rule to suits by defrauded victims, and we have no mandate

from Congress to undertake that challenge here.” Id. at 454, 133

S. Ct. at 1224.

The government in this case is not arguing that the statute

of limitations should be extended until such time as it had

reason to know of Spectrum’s failure to comply with its

reporting obligation under section 15(b). It is, instead, arguing

that Spectrum’s failure to report the defect in its product was

a continuing violation that did not cease until such time as the

company at last filed a section 15(b) report with the CPSC.

Gabelli sheds no light on whether a defendant’s violation of any

statute, let alone section 15(b), amounts to a continuing

violation.

The discovery rule and the continuing violation doctrine

are both equitable doctrines, but they serve different purposes

and operate in different ways. The discovery rule is designed

to protect a plaintiff who through no fault of his own does not

learn that a defendant has caused him harm until the limitations period has already run; the discovery rule thus delays the

accrual of his cause of action until such time as he reasonably
24 No. 18-1785

couldhavediscovered the defendant’s wrongdoing. SeeGabelli,

568 U.S. at 449, 133 S. Ct. at 1221; Rodrigue v. Olin Employees

Credit Union, 406 F.3d 434, 444 (7th Cir. 2005); Ellul v. Congregation of Christian Bros., 774 F.3d 791, 799, 801 (2d Cir. 2014). The

continuing violation doctrine, on the other hand, is aimed at

ensuring that illegal conduct is punished by preventing a

defendant from invoking the earliest manifestation of its

wrongdoing as a means of running out the limitations clock on

a course of misconduct that persisted over time; the doctrine

serves that end by treating the defendant’s misconduct as a

continuing wrong and deeming an action timely so long as the

last act evidencing a defendant’s violation falls within the

limitations period. See Karraker v. Rent-A-Center, Inc., 411 F.3d

831, 837 (7th Cir. 2005); Shanoff v. Ill. Dep’t of Human Servs., 258

F.3d 696, 703 (7th Cir. 2001); Selan v. Kiley, 969 F.2d 560, 564

(7th Cir. 1992); Miami Nation of Indians of Ind., Inc. v. Lujan, 832

F. Supp. 253, 256 (N.D. Ind. 1993), j. aff’d, 255 F.3d 342 (7th Cir.

2001); see also O’Loghlin v. Cnty. of Orange, 229 F.3d 871, 875 (9th

Cir. 2000). Thus, where the violation at issue can be characterized as a continuing wrong, the limitations period begins to

run not when an action on the violation could first be brought,

but when the course of illegal conduct is complete. Taylor v.

Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983) (“the statute of

limitations does not begin to run on a continuing wrong till the

wrong is over and done with”).

Our decision in United States v. Yashar, 166 F.3d 873 (7th Cir.

1999), addresses the question of when a defendant’s statutory

transgression is properly understood to be a continuing

violation to which this doctrine would apply. Yashar, a criminal
No. 18-1785 25

case,12

recognized that an offense is ordinarily deemed to have

been committed—thus triggering the statute of limitations—when each element of the offense is present. Id. at 875.

But continuing offenses, Yasharrecognized, are an exception to

that rule. We explained that a criminal offense is treated as

continuing only if the substantive criminal statute explicitly

compels that conclusion orif “‘the nature of the crime involved

is such that Congress must assuredly have intended it be

treated as a continuing one.’” Id. (quoting Toussie v. United

States, 397 U.S. 112, 115, 90 S. Ct. 858, 860 (1970)). “The hallmark of the continuing offense is that it perdures beyond the

initial illegal act, and that ‘each day brings a renewed threat of

the evil Congress sought to prevent’ even after the elements

necessary to establish the crime have occurred.” Id. (quoting

Toussie, 397 U.S. at 122, 90 S. Ct. at 864). We later added that

when assessing the nature of an offense, the appropriate focus

is not on the nature of the defendant’s actions, but rather on

the statutory language defining the offense. Id. at 877. “If the

statute describes an offense that by its nature continues after

the elements have been met, then the offense is a continuing

one regardless of the nature of defendant’s actions beyond that

point.” Id.

In our view, the terms and purpose of section 15(b) leave no

doubt that the failure to report a defect is a wrong that continues beyond a company’s initial failure to report. The statute

requires a consumer products manufacturer, retailer, or

12

The continuing violation doctrine, of course, is not limited to the

criminal context. See, e.g., Taylor, 712 F.2d at 1118; Miami Nation, 832 F.

Supp. at 256.
26 No. 18-1785

distributor which comes into possession of information

supporting the conclusion that its product has a potentially

hazardous defect to file a report with the Commission; the

company is relieved of that obligation only if it knows that the

Commission has already beenproperly informed of that defect.

Although, as Spectrum naturally emphasizes, the company’s

duty is to make an immediate report, which the regulation

defines to mean within 24 hours of the company coming into

information regarding the hazard posed by its product, there

is no reason to think that the company’s dereliction of its duty

is a one-time defalcation that is complete for statute of limitations purposes once 24 hours have passed without the filing of

a report. The statutory obligation, after all, is to convey

information to the Commission so that it may take action as

necessary to protect the public from the potential harm posed

by the company’s product. See Zepik v. Tidewater Midwest, Inc.,

856 F.2d 936, 944 (7th Cir. 1988) (“The Commission had come

to rely heavily on reports from manufacturers and sellers and

views underreporting as a serious problem.”); Drake v.

Honeywell, Inc., 797 F.2d 603, 611 (8th Cir. 1986) (“Compliance

by manufacturers, distributors, and retailers with section 15(b)

obviously is critical to the fulfillment of the congressional

purpose, to ‘protect the public against unreasonable risks of

injuries associated with consumer products.’”) (quoting 15

U.S.C. § 2051(b)(1) (1982)); United States v. Advance Mach. Co.,

547 F. Supp. 1085, 1090 (D. Minn. 1982) (“Congress intended to

increase the likelihood that a substantial product hazard will

come to the attention of the Commission in a timely fashion so

that it c[an] act swiftly to protect the consuming public.”).

Nothing about the significance of that information or the need
No. 18-1785 27

for governmental intervention changes with the passage of

time in and of itself: So long as the defective product is offered

for sale and otherwise remains in use by consumers, the

potential danger presented by the product and the need for

action to address that dangerremain unabated. Thus, although

a product distributor may have breached its obligation under

section 15(b) by sitting on information regarding a product

hazard for more than 24 hours, its transgression continues so

long as it fails to file the requisite report with the CPSC. To

paraphrase Yashar, once a company has omitted to “immediately” inform the Commission of a potentially hazardous

product defect, the elements of its statutory breach are present,

but the wrong manifested by its silence perdures beyond the

initial failure to make a timely report. The fact that the statute

relieves the manufacturer, distributor, orretailer of the duty to

report only when the company has actual knowledge that the

Commission already knows about the defect reinforces the

point: the duty is tied to the Commission’s awareness of the

defect rather than the passage of any arbitrary period of time.

See United States v. Michaels Stores, Inc., 2016 WL 1090666, at *2

(N.D. Tex. Mar. 21, 2016) (duty to report under section 15(b) is

continuing one and limitations period does not begin to run

until defendant has actual knowledge that Commission is

adequately informed of product defect); Advance Mach., 547

F. Supp. at 1089–92 (same); cf. Postow v. OBA Fed. Sav. & Loan

Ass’n, 627 F.2d 1370, 1379–80 (D.C. Cir. 1980) (construing

mortgage lender’s failure to make specified disclosures to

borrower regarding certain fees and closing costs before loan

commitment letter is issued, as required by Truth-in-Lending

Act, 15 U.S.C. § 1639(b) (1976), to constitute limited continuing
28 No. 18-1785

violation—inhibiting buyer’s ability to compare bank’s offer

with others—that lasted beyond issuance of commitment letter

until such time as disclosure was made at settlement, at which

point borrower could still walk away without signing loan

agreement).

The facts of this case reveal that Spectrum’s failure to report

the potential danger posed by its carafe was continuing in a

second sense. Spectrum did not come into information revealing the hazard on one occasion, but on many occasions in the

years that it remained silent. Recall that by the time Spectrum

finally filed its section 15(b) report, it had received over 1,600

complaints from customers. Each time it received a consumer

complaint regarding a carafe failure, Spectrum had a fresh

opportunity and obligation to considerthe potentially hazardous nature of its product and to reassess its reporting obligation. And with each new complaint, it would have become

more clear to Spectrum that the incidents its customers were

reporting were not flukes, and that carafe failures and consumerinjuries would continue so long as the defective version

or versions of the carafe remained in circulation. To say then,

as Spectrum does, that both its duty to report and its failure to

report were ripe at a single point in time—May 2009—and that

the limitations period began to tick irrevocably at that time, is

to ignore that the potential hazard posed by its product

persisted beyond that point, and with each additional complaint of a carafe failure, the company was placed on renewed

notice of an ever more compelling need to act. These complaints continued right up until the time that Spectrum finally

filed its section 15(b) report with the CPSC in 2012. To paraphrase Yashar’s rationale again, each day that Spectrum didnot
No. 18-1785 29

make a report to the Commission brought a renewed threat of

the evil that Congress sought to prevent by requiring a

company to report a possible hazard with its product. 166 F.3d

at 875. Whether one views Spectrum’s silence in response to

each new complaint as a separate violation of section 15(b), or

instead sees the unending stream of complaints as a manifestation of the continuing risks posed by the company’s failure to

report the hazard to the Commission, it is clear that the nature

of Spectrum’s wrongdoing cannot logically be confined to one

point in time but must be seen as a continuing wrong. See

O’Loghlin v. Cnty. of Orange, supra, 229 F.3d at 875 (“an important purpose of the continuing violation doctrine is to prevent

a defendant from using its earlier illegal conduct to avoid

liability forlaterillegal conduct of the same sort”); cf. Birkelbach

v. S.E.C., 751 F.3d 472, 479 (7th Cir. 2014) (on review of order

disciplining securities principal for failure to supervise associate, it would be “absurd” to treat failure to supervise as single

indivisible act which accrued, forlimitations purposes, on first

day of failure to supervise and to ignore fact that failure of

supervision persisted thereafter: “Under [defendant’s] interpretation,if an unethical supervisor were to avoid detection for

five years, he could continue his unethical behavior forever

without [the government] being able to discipline him.”). 

Against this logic Spectrum invokes our decision in United

States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013),

which declined to construe the failure to obtain a pre-construction permit as required by statute to be a continuing violation.

The provision of the Clean Air Act at issue in Midwest Generation required the operator of power plants and other “major

emitting facilities” to obtain a construction permit before
30 No. 18-1785

commencing substantial modifications to their facilities. 42

U.S.C. § 7475(a). A permit was required, in relevant part, in

orderto give regulators the opportunity to condition approval

of the proposed modifications upon the installation of the bestavailable pollution-reducingmeasures.Between1994 and 1999,

Commonwealth Edison Co. (“ComEd”) made modifications to

five of its coal-fired power plants without first obtaining

permits;ComEd contended that the nature of the modifications

it made to the plants did not require permits. The government

disagreed, but it did not file suit to enforce the permit requirement until 2009, a decade or more afterthe modifications were

made. ComEd invoked the five-year limitations period

specified by section 2462 and argued that the suit was untimely. As relevant here, the government excused the delay by

arguing that ComEd’s failure to obtain the permits mandated

by the statute was a continuing violation that persisted beyond

the point at which work on the modifications began. 

We understood the government’s argument to posit that

“every day a plant operates without a § 7475 permit is a fresh

violation of the Clean Air Act.” 720 F.3d at 647, and we rejected

that contention:

The violation is complete when construction commences without a permit in hand. Nothing in the

text of § 7475 even hints at the possibility that a fresh

violation occurs every day until the end of the

universe if an ownerthat lacks a construction permit

operates a completed facility. Gabelli tells us not to

read statutes in a way that would abolish effective

time constraints on litigation.
No. 18-1785 31

Id.We went on to reject the government’s follow-up contention

that the suit was nonetheless timely because ComEd’s failure

to obtain the requisite permits—the issuance of which would

have been conditioned on ComEd’s installation of the bestavailable pollution control technologies—had resulted in

continuing injury to the public in the form of power plant

emissions that were higher than they would have been had

permits been sought. Current plant emissions were governed

by rules other than section 7475, we pointed out, and those

emissions could not be characterized as “unlawful” simply

because ComEd had never obtained construction permits

within the (expired) limitations period. Id. at 648. “Once the

statute of limitations expired, Commonwealth Edison was

entitled to proceed as if it possessed all required construction

permits.” Id.; accord Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d

666, 672 (10th Cir. 2016) (“It is the act of constructing itself

[without a permit] that is unlawful.”).

Midwest Generation is distinguishable in material respects

from this case. The statute at issue in Midwest Generation

incorporated an explicit and obvious external deadline for the

obligation it imposed: the company was required to obtain a

permit before construction commenced. There is no comparable deadline set forth in section 15(b): the statute calls for a

timely (i.e. immediate) disclosure, but it does not tie that

disclosure to some other event or point in time akin to the

commencement of construction. See Colo. Dep’t of Public Health

& Environ. v. U.S., 2019 WL 1147601, at *8 (D. Colo. Mar. 13,

2019). Moreover, when the deadline in Midwest Generations

came and went with the commencement of construction, the

nature of the problem changed materially from a regulatory
32 No. 18-1785

standpoint. Once the utility company had modified its power

plants, permits were a moot point; there was no longer an

opportunity for regulators to review the proposed modifications and condition those modifications upon the installation

of better pollution controls. The harm post-construction was

now higher emissions of pollutants, and that harm, as we

pointed out, was subject to remedy via different statutory

provisions. By contrast, the wrongfulness of Spectrum’s failure

to disclose the potential defect in its product neither ended nor

transmogrified into a different form as of any particular time.

At all times, the failure to disclose deprived the Commission of

the opportunity to investigate the product and take appropriate action (including a product recall) in order to protect

consumers; and that wrong and the hazard it posed could be

addressed no matter how long it took for Spectrum to make its

disclosure to the Commission.

Nor are we persuaded by Spectrum’s contention that the

single express reference to a continuing violation inone section

of the CPSA’s civil penalty provision, 15 U.S.C. § 2069, rules

out treating a section 15(b) violation as a continuing wrong.

The provision in question treats each failure to keep appropriate records and allow an inspection of those records, see 15

U.S.C. § 2068(a)(3), as a separate violation of the act for

purposes of calculating the appropriate penalty (to be capped

at $100,000 per violation), and “if such violation is a continuing

one,” treats each day that the violation persists as a separate

offense (subject to a maximum penalty of $15 million, as

adjusted by inflation), § 2069(a)(1). The recognition that one

type of violation of the CPSA (a failure of record-keeping) can

be a continuing offense, for penalty assessment purposes, does
No. 18-1785 33

not rule out the possibility that another violation, including the

failure to report a potentially hazardous product defect, can be

a continuing offense for limitations purposes. See Advanced

Mach., 547 F. Supp. at 1090.

We have not overlooked a recurring theme in Spectrum’s

arguments—that treating a failure to report as a continuing

violation is, if nothing else, inconsistent with the “first accrues”

language of section 2462. The company reasons that so long as

Spectrum had come into the requisite information about a

possible product hazard and failed to make a report within 24

hours, it was in violation of the statute and all elements of the

government’s cause of action were established; thus, the

government’s reporting claimfirst accrued at that time, and the

limitations clock began to tick, giving the government five

years from that date to commence suit.

There is a superficial logic to this line of argument, but it

fails to recognize the underlying rationale of the continuing

violation doctrine. Cases applying this doctrine recognize that

the elements of a crime or a civil statutory violation may be

present early on in the course of a defendant’s wrongdoing, so

that the government, if it were aware of the wrongdoing,

would be free to pursue a charge. But given the continuing

nature of the underlying wrong, thedoctrine delays the accrual

of the government’s cause of action, for limitations purposes,

until the defendant’s last act. See United States v. Elliott, 467

F.3d 688, 690 (7th Cir. 2006) (“All continuing offenses work the

same way. Someone commits the crime of conspiracy by

agreeing to commit a future crime (and, for some conspiracy

statutes, by committing an overt act); he may be prosecuted

even if he repents ere the clock strikes midnight. The offense
34 No. 18-1785

nonetheless continues (for limitations purposes) until he

withdraws or is captured. Likewise the crime of escape,

complete when the prisoner leaves custody, continues until he

turns himself in or is nabbed.”); Yashar, 166 F.3d at 875–76;

Womack v. Brady McCasland, Inc., 2017 WL 2828708, at *6

(S.D. Ill. June 29, 2017) (civil case) (applying Illinois law). So

although nothing would have prevented theCommission from

bringing suit in May 2009 had the Commission been aware of

the material facts, the continuingviolation doctrine delayed the

clock from running on the government’s right to bring suit

until such time as Spectrum filed its section 15(b) report and its

ongoing violation of the statute ended.

We recognize that Gabelli admonishes us not to construe a

statute of limitations in such a way as to “abolish effective time

constraints on litigation.” Midwest Generating, 720 F.3d at 647.

But, for all of the reasons we have explained, the duty to report

a potentially dangerous defect in a product so that the Commission can take appropriate action to protect consumers is

necessarily an ongoing duty which, by the terms of section

15(b), does not end until such time as the product’s maker,

distributor, or seller either makes a report or actually knows

the Commission has been properly informed. At all times, it

was within Spectrum’s ability to start the clock running on the

government’s cause of action by filing a section 15(b) report.

The filing of such a report entails minimal time and effort.13

It

could not have been the intent of Congress to treat the failure

13

Testimony presented to the district court indicates that the appropriate

reporting form can be filled out and submitted to the Commission via the

internet within a matter of minutes.
No. 18-1785 35

to make such a report as a “one and done” event that confines

a company’s duty, for limitations purposes, to the earliest

possible point in time and effectively ignores the stream of

consumer complaints presented to the company in the ensuing

months and years, the many opportunities the company had to

reevaluate its obligation to report, and the missed opportunities for the Commission to take remedial action to protect

consumers.

This action is therefore timely. For purposes of the statute

of limitations, Spectrum’s wrongdoing did not end, and the

government’s cause of action did not first accrue, until April

2012, when the company finally complied with its section 15(b)

obligation by filing a report with the Commission. 

B. Propriety of permanent injunction

Spectrum also challenges the permanent injunctive relief

awarded by the district court. As we have noted, Spectrum

contends in the first instance that the court had no authority to

enter a permanent, forward-looking injunction in the absence

of an ongoing violation of the CPSC. Beyond that, the company

argues that it was an abuse of discretion for the court to order

such relief here, and in particular to require the company to

engage an expert to evaluate its compliance procedures and

make recommendations for improvements.

We reject at the outset Spectrum’s contention that the CPSA

does not authorize forward-looking injunctive relief. Section

22(a) of the Act authorizes a district court to “[r]estrain any

violation of section 2068 of this title.” 15 U.S.C. § 2071(a)(1).

“Any” is a broad term that to our mind, and contrary to

Spectrum’s understanding, is not limited to ongoing violations
36 No. 18-1785

of the statute but also encompasses prospective violations as

well. See Affiliated Ute Citizens of Utah v. United States, 406 U.S.

128, 151, 92 S. Ct. 1456, 1471 (1972) (recognizing that “any” is

a broad, inclusive term); cf. Manning v. United States, 546 F.3d

430, 436 (7th Cir. 2008) (rejecting plaintiff’s contention that

provision of Federal Tort Claims Act, 28 U.S.C. § 2676, specifying that judgment in FTCA action constitutes a complete barto

“any action” by claimant, applies only to future actions:

“Section § 2676 applies to ‘any action’; ‘any’ means ‘any,’

regardless of the sequencingof the judgments.”). Indeed, given

that an injunction by its nature regulates the conduct of the

enjoined party going forward, Shore v. United States, 282 F. 857,

859 (7th Cir. 1922) (“Relief by injunction looks toward the

future.”), the natural assumption, in the absence of an express

limitation on the court’s power, would be that Congress

intended to authorize injunctive relief aimed at a preventing a

repetition of the wrongful acts that the court has found to have

already occurred. See N.L.R.B. v. Express Pub. Co., 312 U.S. 426,

435, 61 S. Ct. 693, 699 (1941) (“A federal court has broad power

to restrain acts which are of the same type or class as unlawful

acts which the court has found to have been committed or

whose commission in the future unless enjoined, may fairly be

anticipated from the defendant's conduct inthepast.”); Russian

Media Grp., LLC v. Cable America, Inc., 598 F.3d 302, 307 (7th Cir.

2010); Lineback v. Spurino Mat’ls, LLC, 546 F.3d 491, 504 (7th Cir.

2008). Thus, we are not persuaded that the lack of express

statutory authorizationforforward-looking injunctive relief, cf.

15 U.S.C. §§ 77t(b), 78u(d)(1) (authorizing injunctions to

restrain imminent violations of securities laws), deprived the

district court of the power to enter such an injunction.
No. 18-1785 37

Nor has Spectrum persuaded us that the district court

abused its discretion in deciding that injunctive relief is

appropriate in this case. The burden of proof on this point of

course belonged to the government, and the court did not

improperly shift the burden to Spectrum, as the company

suggests it did. R. 234 at 17 (recognizing that burden belonged

to government as plaintiff); R. 234 at 21 (“the court finds that

plaintiff has made an adequate showing of the need for

permanent injunctive relief ...”). The burden was not onerous:

once the government “has demonstrated a past violation, it

need only show that there is a reasonable likelihood of future

violations in order to obtain injunctive relief.” SEC v. Yang, 795

F.3d 674, 681 (7th Cir. 2015) (quoting S.E.C. v. Holschuh, 694

F.2d 130, 144 (7th Cir. 1982)). The district court did not clearly

err in finding that the government met this burden. Spectrum

describes its violations as an “isolated occurrence.” Spectrum

Reply Br. 22. That may be true in the sense that its violations of

the CPSA involved a single defect in one line of coffeemakers.

But it is not isolated in any other sense of the word. For three

years after Spectrum itself concluded that the original handle

on its SpaceMaker carafe was defective and ordered changes

to the design, the company failed to report the defect to the

CPSC, notwithstanding the many hundreds of complaints it

continued to receive during that period and the knowledge

that the handle failures resulted in consumer injuries with

some regularity. And when it finally recalled the coffeemaker,

Spectrum (inadvertently) continued to sell the product. The

evidence produced at the remedies hearing showed—and the

district court found—that Spectrum’s violations of the statute

were due to serious and systemic defalcations within the
38 No. 18-1785

company, among them: a failure of communication between

staff who were familiar with the defects in the design of the

original carafe handle and staff who handled customer

complaints; a failure among senior managers to meaningfully

confront the situation with the coffeemaker’s carafe until 2012

despite knowing as early as April 2009 that there were problems with the product; the lack of systems to prevent the

continued distribution of recalled products; and the failure to

train staff on compliance with the CPSA.

Given the gravity of these failures and the company’s delay

in complying with its reporting obligation, the district court

justifiably concluded that there was a reasonable likelihood

that Spectrum might again commit similar violations of the

statute in the future. To be sure, Spectrum by the time of the

remedies hearing had undertaken significant efforts to address

the weaknesses in its corporate culture that had resulted in its

continued sales of the defective coffeemaker and its failure to

timely report the hazard posed by the defect to the Commission. But, as the district court pointed out, Spectrum had not

submitted to an independent audit to evaluate its compliance

systems or processes and to solicit external advice as to what

additional changes, if any, might be prudent. Nor, we would

add, was there evidence before the court as to how effective the

remedial measures undertaken by the company in the wake of

the coffeemaker matter had thus far proven to be in practice.

The court reasonably concluded that a permanent injunction

requiring the company to take specified categories of proactive

measures was a necessary and appropriate step aimed at

reducing the likelihood that the company would, in the future,

commit violations similarto those that had led the court to fine
No. 18-1785 39

the company. And, of course, pursuant to Fed. R. Civ. P. 60(b)

and Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 112 S. Ct.

748 (1992), Spectrum retains the right to seek a modification

and/or lifting of the injunction at a future date as any material

change in the circumstances warrant.

Finally, the district court did not err in ordering the

company to employ an independent auditor as one of these

proactive measures. Spectrum’s objections to this requirement

fall into two categories: procedural and substantive.

Spectrum’s first contention is that the district court lacked

authority to amend the injunction to add the consultant

requirement. In Spectrum’s view, the requirement constituted

not a mere clarification of the original injunction but a new,

substantive requirement that represented a substantial change

from the terms of the injunction as originally entered; and

although the district court had the authority to modify the

judgment, see Rufo, 502 U.S. 367, 112 S. Ct. 748; Protectoseal Co.

v. Barancik, 23 F.3d 1184, 1187 (7th Cir. 1994), the government

itself never made a motion pursuant to Rule 60 asking the

court to entertain such a modification.

Given the sequence of events that led to the final injunction

as amended, however, the district court was within its rights to

consider a modification of this nature. Recall that in its first

iteration, the injunction ordered Spectrum to “maintain

sufficient systems, programs, and internal controls to ensure

compliance with the CPSA and the regulations enforced by the

CPSC” and, within a period of six months, to “implement

appropriate improvements to its compliance programs.” R. 234

at 22. When Spectrum subsequently sought a partial stay of the
40 No. 18-1785

district court’s judgment pending appeal, including most of the

requirements imposed by the injunction, the company argued

among other things that the injunction was impermissibly

vague and overbroad. It was in response to that line of argument that the court, recognizing that its injunction may not

have been as specific and concrete as it ought to have been,

treated Spectrum’s motion as one to clarify the obligations

imposed by the injunction. R. 243 at 3–4. Following briefing as

to the nature and sufficiency of the improvements Spectrum

had already made to its compliance procedures and programs,

the court endeavored to do just that. It modified the injunction

to include six specific requirements tracking the improvements

Spectrum averred were already in place; the court viewed

these improvements as sufficient to resolve Spectrum’s

concerns about the vagueness of the injunction and to ensure

preservation of the status quo pending appeal. 2018 WL

502736, at *2–*3. But the court agreed with the government that

these improvements might not be sufficient, in and of themselves, to ensure compliance with the spirit of the court’s

injunction and to avoid a repetition of the events that led to the

company’s violation of the CPSA. For that reason, the court

accepted the government’s proposal that Spectrum also be

required to engage an outside consultant to assess the efficacy

of its compliance systems. Id. at *4. The court viewed the

consultant as “a straightforward, specific way for Spectrum to

ensure its good faith compliance with the permanent injunction, rather than continuing to live under the vagueness of the

admonition to ‘obey-the-law’ currently contained in the

permanent injunction.” Id. Recognizing, however, that engag-
No. 18-1785 41

ing a consultant went beyond the status quo, the court stayed

enforcement of that specific requirement pending appeal. Id.

To the extent the requirement to engage a consultant

constituted a substantive modification, as opposed to a simple

clarification, of the original injunction, it was well within the

court’s authority to make this modification in response to

Spectrum’s arguments that the injunction’s vagueness made it

impossible for the company to know how precisely to comply

with the court’s command. R. 237 at 6. True, Spectrum did not

formally ask the court to modify the injunction and neither did

the government separately make such a motion. But it was well

within the court’s power to look beyond the label to the

substance of Spectrum’s motion and to treat the request for a

stay not only as one to clarify the injunction, but also as one to

modify the injunction as necessary to address Spectrum’s

concerns—which is precisely how the court construed the

motion. R. 243 at 3–4 & n.1. Our subsequent remand of the case

to the district court eliminated any question as to whether the

court had jurisdiction to make this change and the other

amendments to the judgment. See Doctors Nursing & Rehab. Ctr.

v. Sebelius, 613 F.3d 672, 677–78 (7th Cir. 2010); Chicago Downs

Ass’n v. Chase, 944 F.2d 366, 370 (7th Cir. 1991); Textile Banking

Co. v. Rentschler, 657 F.2d 844, 849–50 (7th Cir. 1981). 

Nor did the district court abuse its discretion in concluding

that an outside consultant was warranted. As the parties agree,

this provision is commonly included in consent decrees as a

means of insuring that the problems that have given rise to

litigation are, in fact, resolved. See R. 254 at 9 n.4 (collecting

consent decrees in CPSA cases requiring employment of
42 No. 18-1785

outside experts); NW Environ. Defense Ctr. v. H&H Welding,

2015 WL 7820958, at *4 (D. Ore. Oct. 13, 2015); F.T.C. v. Nat’l

Urological Grp., Inc., 2006 WL 8431977, at *1 (N.D. Ga. Jan. 9,

2006); E.E.O.C. v. Harvest Med. Clinic, Inc., 2005 WL 2484668, at

*2 (D. Az. Sept. 14, 2005). Spectrum, of course, did not enter

into a consent decree, but that by no means undermines the

utility or propriety of requiring it to engage an outside expert.

See, e.g., United States v. Blue Ribbon Smoked Fish, Inc., 179

F. Supp. 2d 30, 50–51 (E.D.N.Y. 2001) (sustaining government’s

request that defendant be ordered either to pay for agency

inspections or to hire outside consultant to monitor food

safety), j. aff’d in part, vacated in part on other grounds, & remanded, 56 F. App’x 542 (2d Cir. 2003). The omissions that gave

rise to Spectrum’s liability in this case were significant and

prolonged, and unnecessarily exposed a significant number of

consumers to physical harm. There appears to be no dispute

that wholesale reforms to Spectrum’s regulatory compliance

systems and culture were called for; the number of consumer

products that Spectrum distributes only makes the need for

those reforms more imperative. Although the company had

endeavored to make the changes needed, those reforms, as we

have said, had not been subjected to independent scrutiny. It

was reasonable for the district judge to think that a second

opinion as to the sufficiency of these reforms would be useful

as an additional means of ensuring that Spectrum did not

commit similar violations in the future. Moreover, Spectrum

itself, in seeking a partial stay of the judgment, had expressed

concern about its ability to comply with the spirit of the court’s

injunction. It complained of the “difficulties inherent in

operating a large consumer business pursuant to a vague
No. 18-1785 43

injunction that does not specify what Spectrum must do in

order to ensure that it is complying with the Court’s order.”

R. 237 at 6. The advice of an independent consultant would no

doubt help to address this very concern. We add, finally, that

the district court included a procedure for judicial review of

any proposals by the consultant that Spectrum found objectionable, which will serve as a check on the consultant’s

authority.

III.

For all of the reasons we have discussed, the judgment of

the district court is AFFIRMED.
44 No. 18‐1785

MANION, Circuit Judge, concurring in part and concurring

in the judgment. I write separately to note a narrow point of

disagreement with the court’s detailed opinion relating to the

statute of limitations issue.1 I agree Spectrum’s2 conduct

amounts to a “continuing violation” that lasted into 2012, and

therefore the government’s complaint was timely. I disagree,

however, concerning the nature of that continuing violation.

The court relies on United States v. Yashar, 166 F.3d 873 (7th

Cir. 1999), and concludes a failure to report is a single contin‐

uing wrong that lasts until a report is filed3 because the failure

“perdures beyond the initial failure to make a timely report.”

Maj. Op. at 27. I, on the other hand, view the failure to report

as a series of isolated acts that continue to occur each time

when an entity fails to report within 24 hours of obtaining suf‐

ficient information to trigger the requirement. See 15 U.S.C. §

2064(b); 16 C.F.R. § 1115.14(e).

Nevertheless, given the facts in this case, my understand‐

ing does not change the outcome. Because Spectrum did not

report to the Commission when its duty first arose in 2009,

each new consumer complaint and subsequent failure to re‐

port amounted to a recurring series of violations of the

                                                 

1 I join in full the court’s opinion as it concerns the appropriateness

of the district court’s injunction.

2 Like the court, I treat Spectrum and its former subsidiary Applica

Consumer Products, Inc., as one and the same company. See Maj. Op. at

2 n.1.

3 The failure also ends if the requirement to file a report is obviated

by the Commission “inform[ing] the subject firm” it is already “ade‐

quately informed.” 16 C.F.R. § 1115.3(a).
No. 18‐1785 45

reporting requirement.4 Thus, Spectrum’s persistent failure to

file a report with the Commission as it continued to obtain

information showing its product was dangerously defective

was a “continuing violation” that continued into 2012,5 and

the government’s 2015 complaint was timely.6 See Shanoff v.

Ill. Dept. of Human Servs., 258 F.3d 696, 703 (7th Cir. 2001)

(“The continuing violation doctrine allows a plaintiff to get

relief fortime‐barred acts by linking them with acts within the

limitations period.”); Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.

1992) (announcing the same rule); Taylor v. Meirick, 712 F.2d

1112, 1118 (7th Cir. 1983) (“[T]he statute of limitations does

not begin to run on a continuing wrong till the wrong is over

and done with ... .”).

*****

From January 2009 to April 2012, Spectrum received 1,620

customer complaints; a rate of more than one per day. Spec‐

trum could have filed its report to the Commission much

sooner than it did, and that date, at the latest, would be the

                                                 

4 The court acknowledges this as a possibility, but it does not con‐

sider it dispositive. See Maj. Op. at 29. I think it is dispositive.

5 When Spectrum finally filed its report with the Commission in

April 2012, it definitively prevented further violations of the reporting

requirement. At that point, information may have triggered a duty to

supplement the report already filed, see 16 C.F.R. § 1115.13(d), but there

could no longer be violations of the initial duty to report because the

Commission would have knowledge of the defect, see 15 U.S.C. 2064(b).

6 I point out that in February 2014—within the limitations period as

even Spectrum would have it—the government sent Spectrum a letter

explaining its belief Spectrum had violated the reporting requirement

and penalties were appropriate. Nevertheless, for some reason it delayed

filing its complaint until June 2015.
46 No. 18‐1785

start of the five‐year limitations period. The government

would then have five years to file a complaint, probably not‐

ing that customers continued to complain. If Spectrum and

the government had proceeded accordingly, this case would

not be here.

But as it is, Spectrum engaged in a series of violations of

the reporting requirement that lasted into 2012. It cannot hide

behind the untimeliness of its self‐imposed delay in reporting

a problem that developed months and years earlier. The gov‐

ernment timely filed its complaint in 2015.