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Balls of Steel

‘Buckyballs’ creator sues federal agency to stop $57 million penalty

• November 15, 2013 11:00 am

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The creator of a popular adult desk toy is taking a federal agency to court after it tried to hold him individually liable for alleged product safety violations by the now-defunct company he founded.

The Consumer Product Safety Commission (CPSC) is trying to place the full $57 million cost of recalling Buckyballs, magnetic balls marketed as desk toys, on Craig Zucker, the product’s creator.

Zucker announced on Wednesday that he is filing a lawsuit against the CSPC seeking an injunction against the agency’s demand that he foot the full cost of a product recall.

"For too long I have been a target of the CPSC and I am no longer willing to just take it," Zucker said in a statement on the lawsuit. "I am now taking legal action to defend myself against the CPSC’s egregious attempt at rewriting our cherished laws of limited liability."

The lawsuit claims that CPSC lacks jurisdiction to pursue legal action against Zucker individually.

"At a minimum this action is an obvious overreach of the CPSC’s authority and at maximum it is an illegal abuse of power by persons within the Commission who seek to punish Mr. Zucker," said Dan Epstein, executive director of the legal watchdog group Cause of Action, which filed the lawsuit on Zucker’s behalf.

Neither Zucker nor his former company have been accused of illegal activity, Cause of Action noted in a statement on the lawsuit. Therefore, he cannot be held liable in a civil lawsuit involving the sale of Buckyballs.

Zucker dissolved Maxfield & Oberton, the limited liability corporation that manufactured Buckyballs, in late 2012 after CSPC demanded an immediate recall of the product.

The commission said the product was a health hazard because children could swallow the magnetic balls, which could do significant damage to internal organs.

According to CSPC commissioner Nancy Nord, the agency had less punitive tools at its disposal to remove products from the shelves that it felt were dangerous. Instead, it "put Maxfield & Oberton out of business without the company getting a chance to defend itself in court."

After the company folded, CSPC named Zucker individually in a lawsuit demanding he foot the full bill for recalling Buckyballs from shelves around the country.

Corporate law firm Morrison and Foerster warned its clients in May that CSPC’s decision to hold Zucker personally liable carries "sobering implications."

"Extension of this doctrine to the consumer products arena could add another powerful tool to the CPSC’s enforcement toolbox, allowing the CPSC to leverage the threat of personal liability against corporate officers," the firm warned.

Nord said she hopes Zucker prevails in his suit. CSPC’s actions, she wrote in the Wall Street Journal on Wednesday, "provide a powerful disincentive for companies to work cooperatively with the government to advance safety."

Zucker has created a website, UnitedWeBall.org, to raise money for his legal defense.

"I will keep going until the case is won and ensure the CPSC can’t ever do this again to another individual," he pledged.