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Scott L. Winkelman

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Scott L. Winkelman is a partner in the firm's Mass Tort, Product, and Consumer Litigation Group. Scott is co-founder of the Product Risk Management Practice, and head of the firm’s Transportation Practice. He has held roles on the firm’s Management Board and Executive Committee.

Scott represents clients in class actions, multidistrict proceedings, arbitrations, and other complex litigation in products and commercial matters nationwide.

Scott also represents clients in agency proceedings before the National Highway Traffic Safety Administration, the Consumer Product Safety Commission, and related product regulatory bodies.

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Mopeds fall within NHTSA’s jurisdiction when they can go over 20 mph and are meant to be used primarily on roads.  They’re considered “motor-drive cycles,” which are a subset of motorcycles.  In NHTSA’s world, a motorcycle is “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.”[1]  A motor-drive cycle is “a motorcycle with a motor that produces 5–brake horsepower or less.”[2]  Since these mopeds are regulated by NHTSA, they cannot be imported into or sold in the United States without complying with the FMVSS.[3]

Since NHTSA is focused on vehicles meant for road use, one might wonder whether the use of bike paths changes NHTSA’s jurisdiction over mopeds.  Ultimately, though, NHTSA is focused on speed.  According to NHTSA’s published interpretations of its regulations, the agency “believe[s] that vehicles with speeds of over 20 mph are capable of on-road operation,” and therefore fall within their purview.  NHTSA makes classifications for vehicles in interstate commerce.  The classifications are meant to be as applicable in California as they are in Tennessee or Maine.  Some cities may have ample bike lanes such that it would be reasonable for the bikes to never be used on roads, but most do not. NHTSA’s classifications will not change from location to location.…

Continue Reading NHTSA versus CPSC Jurisdiction Over Certain Micromobility Products

“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’…” Toussie v. United States, 90 S. Ct. 858, 864 (1970). In a ruling issued May 9, the Seventh Circuit determined that a failure…

On June 7, the U.S. Consumer Product Safety Commission provided administrative law followers a fascinating case study. For the first time in two decades, the CPSC’s five Commissioners heard an appeal put on by CPSC staff in administrative litigation. In its appeal, the staff seeks to overturn an administrative law judge’s opinion finding that Zen Magnets’ controversial high powered, small rare earth magnets (SREMs) are not defective and are not a substantial product hazard when sold with appropriate warnings. Novel already, what made this argument all the more interesting was an additional wrinkle:  four of the five Commissioners who heard the appeal had voted previously to approve a final safety standard that has the practical effect of banning such magnets outright.

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Continue Reading CPSC Hears Rare Oral Argument in Zen Magnets Recall Litigation

© iStock
© iStock

Last month, our colleague Joshua Foust analyzed the then-newly introduced Fairness in Class Action Litigation Act of 2017.  The bill, sponsored by House Judiciary Chairman Bob Goodlatte (R-VA), amends procedures used in federal court class action and mass tort litigation.  Last week, on March 9, just one month after Chairman Goodlatte (R-VA) introduced the bill, the full House of Representatives passed the bill by a vote of 220-201.  The legislation will now be considered by the Senate.   

Now that the bill has passed the House, we have drafted an alert providing additional analysis. Click here to read the alert on Crowell.com or read below.

The U.S. House Sets Out To Reform Class and Mass Actions

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Continue Reading Update: Class Action Reform Bill Passes House 220-201

First 100 Days LogoJoin Us for a Webinar – Thursday, March 30, 2017 1:00 – 2:00 p.m. Eastern

Aggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Please click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics to be discussed:…
Continue Reading Webinar: The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days

On Tuesday, September 8, 2015, the House passed the E-Warranty Act of 2015, which, if enacted, would require the FTC to revise the Magnuson-Moss Warranty Act to allow manufacturers to satisfy the Act’s requirements by digitally posting consumer product warranties on their websites.

The E-Warranty Act would permit manufacturers to provide warranty information online…

On November 13, 2013, the U.S. Consumer Product Safety Commission (CPSC) voted 3-1 to publish notice of a proposed interpretive rule that would establish standards for voluntary product recalls, revising 16 CFR part 1115. As approved, the proposed rule, which originally focused on the form and content of recall notice, incorporates several substantive amendments introduced…