This was posted on PML today

-chris

        With apologies to our non-US members and non-PGI members, for whom
this has little relevance.

        By now most of you are aware that the judgment in the CSPC case
against Firefox has been rendered.  I would like very much to sugar-coat
this somehow, but the long and the short of it is the government won and we
lost - big.  This will, at the very least, have a huge impact on Firefox,
work a tremendous economic hardship on its proprietors, and threaten ever
more imminently those others in the pyrotechnic chemicals and supplies
business or those that might contemplate entering it.

        What follows deals mostly with what happened, not "where do we go
from here."  Recommendations and advice on the latter will be forthcoming in
the future when we have had a chance to consider the now extant situation
carefully (more on that below).  For now, I will recap briefly for those new
to the subject, and then bring you up to date.  I beg the indulgence of
those of you who already know the following background information.

        Late last year the judge granted the Government's motion for summary
judgment and denied the Defense's motion for summary judgment.  This meant
that he found that there was no significant dispute over the facts of the
case and hence no need to go to trial to determine facts.  In doing so, he
found that the CPSC does have the right to enforce the Federal Hazardous
Substances Act, and that a judicial injunction was the appropriate "relief,"
as the government had requested.  The court instructed the two parties (CPSC
and Firefox, as represented by their respective counsel) to attempt to
negotiate mutually agreeable language for the injunction.  The judge
indicated that it was not his wish to see Firefox put out of business.  He
advised the litigants that it would be in their mutual best interest to
arrive successfully at an agreed wording for the injunction.  If they were
unable to come to an agreement on the wording of an injunction, he would
undertake to craft the injunction himself, and that neither party would be
happy with the result.

        The litigants were unable to come to a compromise wording before the
Court's imposed deadline in January, and the Judge then ordered each side to
prepare a draft injunction and a short supporting brief for his
consideration to be submitted to him by February 28th of this year.  Both
sides met this deadline.  The defense (our side) also provided a report of
some scientific testing undertaken to further support our version of the
injunction.  The Government, in a Motion to Strike, appealed to the court to
disregard the supporting data we had provided (i.e., to not consider it in
rendering his judgment).

        The Court considered the material provided, and decided to issue the
"compromise" injunction and rule on the Government's appeal simultaneously.
These rulings were handed down on Monday.

        Before I continue, I want to clarify exactly what has been going on
and why for those very few of you who reside in the geometric center of the
universe and who are given to testy comments such as "why didn't the Board
post this" and "why did we have to hear about this from the DOJ."  The
judgment was announced by the court late on Monday, 30 April.  In order that
planning for the future could begin promptly, some of us were notified of
the judgment by the Firefox lawyers on the afternoon of Tuesday, 1 May.
This notification was accompanied by a request that public announcement be
delayed for a decent interval to afford those most affected - the Firefox
proprietors - the opportunity to read the judgments, digest them, and begin
to consider a plan of operation for the future conduct of their business in
relative peace before being inundated by telephone calls and emails.  Out of
compassion we have honored that request for the last four days, independent
of the fact that the CPSC and DOJ, apparently in their zeal to gloat over
their victory, were not so thoughtful.  I trust you find this reasoning
satisfactory.  If not, get in touch with me off-list.

        Additionally, rather than post any proclamation or recommendations
for a response immediately, we felt and continue to believe that we should
take the necessary time to craft a response to our community that clearly
addresses what options are open to us at this point, what resources we can
bring to further courses of action, and what our best advice to our
community on this matter should be.  We expect that it will take another
week or two for us to craft a detailed thorough and responsible post
addressing these matters.  As soon as we are able we will post such a
response.

        The judgment is comprised of two documents, both of which are
available, combined into a single pdf file, at http://tinyurl.com/2r5k6x.
The first document in the pdf file is the "judgment," which is the
injunction which will be imposed on Firefox as a result of this decision.
It is, with a single exception, a virtually verbatim rendition of the
government's PROPOSED injunction submitted to the judge in February.  The
singular "compromise" is that the injunction charges the government (vice
Firefox as in the original draft) with paying for duplication and mailing
costs if and when they request documents from Firefox under the injunction.
The second document, called the "Memorandum Decision and Order," provides
the Judge's rationale for approving the various provisions of the
injunction, and denies the government's Motion to Strike.

        These orders do not become final for 60 days.  What that means is
that Firefox and their counsel have 60 days to decide whether or not to
appeal.  If Firefox chooses not to appeal, the order then becomes final
without further action, and the world as they - and we - knew it changes for
the worse.  Obviously, this is a very, very complex and difficult decision,
involving the merits of the case, probabilities of success and failure on
appeal, financial realities and considerations, available energy and
stamina, and lots more.  May I respectfully suggest that - apart from your
orders for merchandise which are MOST strongly encouraged - we leave Firefox
and its proprietors in peace to deal with this issue?  Meanwhile, purchase
whatever you think you're going to need for the foreseeable future to the
extent that you can afford it.