Maker of Nap Nanny fights agency's recall effort

The maker of the embattled Nap Nanny baby recliner is fighting back.

Lawyers for Leslie Gudel, founder of Berwyn-based Baby Matters L.L.C., went on the offensive Wednesday, seeking sanctions against the U.S. Consumer Product Safety Commission less than a month after the independent regulatory agency took rare action to get the company's popular chairs pulled from the marketplace through a mandatory recall. The CPSC cited five infant deaths.

Baby Matters is seeking dismissal of that recall effort, filed Dec. 5 as an administrative complaint that the commission brought within its own agency to be handled by an administrative law judge. Typically CPSC recalls are voluntary efforts between manufacturers and the agency. The agency had sought a mandatory recall only three times previously in 11 years.

The CPSC has alleged that the Nap Nanny chairs represent "a substantial hazard" and that consumers who bought them should receive a refund.

In Baby Matters' motion, also filed within the CPSC, and to be decided by an administrative law judge, lawyers Raymond G. Mullady Jr. and Adrien C. Pickard of Blank Rome L.L.P. in Washington accuse the commission of seeking the mandatory recall of Nap Nannys as "a vehicle to give the commission leverage to strong-arm a complete recall without having to prove its case."

The complaint notes that 22 days after the CPSC's motion for a mandatory Nap Nanny recall, the agency issued a news release announcing that four retailers - Amazon.com, Buy Buy Baby, Diapers.com, and Toys R Us/Babies R Us - had agreed to stop selling the $129.99 recliner as part of a voluntary recall.

Of particular focus in the Baby Matters complaint is a sentence at the end of that recall announcement warning that under federal law, "it is illegal to attempt to sell or resell this or any other recalled product."

That statement is "materially false, misleading and deceptive," the complaint contends. That provision of the Consumer Product Safety Act applies only when a product is subject to a voluntary corrective action taken by the manufacturer, Baby Matters' motion asserts.

Lawyers for Baby Matters alerted the commission to the error and, "in an apparent intentional act to manipulate the news cycle, the commission waited until approximately 6:30 p.m. to correct its on-line version of the press release - after the news of the press release had achieved maximum impact," the complaint states.

CPSC spokesman Scott Wolfson issued a statement reiterating the agency's concerns that the Nap Nanny presents risks to infants. He said CPSC staff "will be responding to the Nap Nanny's filing as appropriate and any response will be available for viewing on the public docket."

Baby Matters has asked for an order from an administrative law judge assigned to handle commission work requiring that the CPSC issue a retraction and correction in every news outlet where it issued last week's recall announcement, clarifying that retailers not participating in the recall, as well as consumers, are free to buy, sell and resell Nap Nannys while the CPSC's efforts to secure from an administrative law judge a mandatory recall are pending.

Gudel, who is also a Phillies reporter and anchor for Comcast SportsNet, had been in talks for months with CPSC over a corrective-action plan before the agency sought the mandatory recall. In July 2010, she had agreed to a recall that involved improved warnings and instructions for an earlier model of the Nap Nanny. In January 2011, the latest model was launched with slightly higher sides and a more snug design to address CPSC concerns about children managing to get out of the chairs.

Gudel maintains that Nap Nannys are safe when used properly: on the floor with the three-point harness secured around the child. In four of the five deaths cited by the CPSC, the Nap Nanny was placed in a crib - contrary to use instructions on the seats. Some of those children got out of the chair and were found trapped between it and a crib bumper.

With negotiations dragging on and legal bills mounting, Gudel decided to shut down Baby Matters on Nov. 12. She said Wednesday she has not decided whether she would reopen the company if her lawyers succeeded at getting the CPSC's complaint for a mandatory recall dismissed.

"I really haven't thought that far ahead," she said. "This is about what's right more than anything, and the tactics the CPSC has used since they asked us to recall the product are just plain wrong."