New parents have their hands full. Baby bouncy seats and swings offer busy caregivers a way to put an infant down but still allow him or her to see and interact with the surrounding environment. But recent recalls have led parents to think twice before going hands free.
On August 15, 2022, 4moms and the CPSC announced a recall of more than two million 4moms MamaRoo Baby Swings (versions 1.0 – 4.0) and over 220,000 RockaRoo Baby Rockers sold in the U.S. and Canada. According to the announcement, the restraint straps on the 4moms MamaRoo Baby Swing and RockaRoo Baby Rocker can dangle below the seat when the product is not in use, posing a strangulation hazard to crawling infants. On August 29, 2022, residents from North Carolina and South Carolina sued Thorley Industries, LLC (d/b/a 4moms) on behalf of nationwide class of purchasers of the recalled products in federal court in Pennsylvania.
Plaintiffs allege in Demarzio v. Thorley Industries LLC, 2:22-cv-01245 (W.D.P.A. filed August 29, 2022) that 4moms knew of the strangulation hazard after receiving two reports of entanglement incidents involving infants back in August 2018. And plaintiffs claim that after receiving the reports, 4moms unjustly profited from the manufacture and sale of the recalled products and unreasonably put infants at risk of entanglement and strangulation. Despite the potentially harmful consequences of the strangulation hazard, neither plaintiff alleges any personal injury or entanglement incident. Instead, they seek to recover damages for economic loss based on 4moms’ alleged breach of warranty, misrepresentations, omissions, and violations of North Carolina and Pennsylvania consumer protection laws.
This lawsuit is another example of how a voluntary product recall, announced jointly and in cooperation with the CPSC, can sometimes lead to a class action lawsuit, even among consumers who were (1) not physically harmed by the product; and (2) received a CPSC-approved remedy that removes the potential product hazard. In this case, 4moms is providing free strap fasteners to consumers who purchased the product to ensure that the straps will not extend under the swing when in use. Plaintiffs’ asserted legal theory—that the mere risk of harm here resulted in some sort of economic loss—may crate perverse incentives for manufacturers, particularly small businesses, who may hesitate to recall products even when necessary out of concern that a lawsuit might follow.