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Judicial secrecy turns consumer protection case into mystery

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It’s about as secret as a lawsuit can get.

When the Consumer Product Safety Commission two years ago launched SaferProducts.gov, a database allowing consumers to report and learn about hazardous products, it was inevitable that some business would go to court to keep a customer’s complaint private.

But the first legal challenge is blazing new trails in judicial secrecy.

Thanks to closed-door hearings, sealed records and a 73-page ruling with large sections blacked out, even the most basic details are concealed. That includes the identity of the plaintiff — known only as “Company Doe” –along with its product and the incident that led to the complaint.

Adding to the mystery, the commission — for reasons it won’t disclose — decided not to appeal a federal judge’s ruling blocking the posting of the complaint and allowing the company to remain anonymous.

But consumer groups are crying foul, branding the ruling a serious violation of the public’s right to know. The groups—Consumers Union, Public Citizen and the Consumer Federation of America—have asked an appeals court to lift the veil of secrecy by unsealing records in the case.

Company Doe, contending that the groups have no standing in the lawsuit, has asked the court to dismiss the appeal.

Several legal experts said they know of no other case in which a company was allowed to use a fictitious name to protect its reputation.

“The general price tag for wanting to submit things to a court to get a ruling in your favor is that they become public,” said Richard Marcus, a law professor and expert on civil procedure at the University of California Hastings College of the Law in San Francisco.

“We don’t have closed trials in this country,” Marcus said. “ We don’t allow witnesses to come in and testify wearing bags over their heads. Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”

Joan E. Steinman, a professor at Chicago-Kent College of Law who has studied pseudonymous litigation, said plaintiffs who use pseudonyms in court usually are individuals who want to avoid disclosing details that could embarrass or even endanger them. In the landmark case of Roe vs. Wade, for example, Jane Roe was used as an alias for Norma L. McCorvey, the young woman who prompted a national debate on abortion rights.

Unusual circumstances

And experts say only in unusual circumstances, such as when national security is at stake, are so many records sealed in a court case.

Consumer advocates say that the decision in the Company Doe case also threatens the integrity of the consumer product database.

If the ruling stands, “companies who find themselves on the verge of having reports included in the database about their products are going to sue and are going to seek judicial secrecy,” said Scott Michelman, an attorney with Public Citizen.

The database was authorized under the Consumer Product Safety Improvement Act of 2008. The law was prompted by several product-related scandals, including the discovery in the U.S. of Chinese-made toys tainted with unsafe levels of lead.

The Company Doe case against the commission came in October 2011, eight months after the database went public. It was aimed at a complaint submitted by a local government agency regarding a product from Company Doe that, the local agency said, had harmed a child.

The Consumer Product Safety Commission followed standard procedure by notifying Company Doe and giving it an opportunity to post a response to the complaint. But the company argued the complaint was inaccurate. The commission responded by writing four different versions of the grievance to eliminate any inaccuracies, but that wasn’t enough to satisfy Company Doe, and it eventually sued to keep the product complaint out of the database altogether.

Company Doe was represented by attorney Baruch A. Fellner of the powerhouse firm of Gibson, Dunn & Crutcher. Fellner told FairWarning he could not discuss the case.

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Last July, Federal District Judge Alexander Williams Jr. in Greenbelt, Md., issued the ruling in Company Doe’s favor, noting that a link between the product and the harm suffered by the child had not been established.

Most records sealed

Williams also allowed the company to proceed in secret by sealing most of the court records. Currently, only about eight of the approximately 86 documents filed in the lawsuit are publicly available. Though the available documents provide clues in the case, such as a reference to an epidemiological report, it’s impossible to piece together what allegedly happened to the child involved.

The judge’s reason for liberally applying a black eraser was simple: Company Doe filed the lawsuit to protect its reputation. Revealing its identity and unsealing court papers could potentially harm the reputation of the company, defeating the point of the legal challenge.

“Were the court to unqualifiedly unseal the case, plaintiff would sacrifice the same right it sought to safeguard by filing suit,” Williams wrote in his heavily redacted opinion. “Although plaintiff could publicly comment on the…[complaint’s] inaccuracy, ordinary consumers would likely dismiss this measure as disingenuous damage control.”

Darren McKinney, a spokesman for the American Tort Reform Association, which represents drug, auto, insurance and other major industries, said he also believes the district court made the right decision.

“It seems perfectly reasonable why this plaintiff would not want its name in the public realm,” he said. “If it believes, and it has convinced a judge, that it has done nothing wrong, whose interest is served by making that name public?”

Public Citizen, Consumers Union and Consumer Federation of America filed an appeal after learning of the ruling, made public only after months of wrangling between Company Doe and the commission over just how much of the judge’s opinion should be released.

The consumer groups appealed under a rule in Maryland that allows outside parties to contest the sealing of court documents, though they still are prevented from challenging the decision to block posting of the complaint.

The case is now pending in Richmond, Va., before the 4th Circuit Court of Appeals.

Protecting the brand

At issue is “a company’s ability to keep our court system secret and anonymous in order to protect their brand,” said Rachel Weintraub, senior counsel for the Consumer Federation of America.

“It’s all about retaining the status quo that existed before where manufacturers completely controlled information about their product.”

Under the database rules, within five days of receiving a report the commission staff must transmit an electronic copy to the manufacturer named in the complaint.

The company then has up to 15 days to respond and to report any inaccuracies. The company may also request that its response be posted, alongside the complaint.

The commission has a legal obligation to publish the report within 20 business days of receipt.

Because the agency does not investigate every complaint filed, the database, which currently contains close to 13,000 incident reports, carries with it a disclaimer: The agency “does not guarantee the accuracy, completeness, or adequacy of the contents” of the database.

Still, according to Scott Wolfson, spokesman for the commission, the majority of inaccuracy claims relate to consumers not naming the correct manufacturer for the product, an issue officials are frequently able to resolve.

Some business advocates, siding with the district court judge’s decision, say the database’s disclaimer doesn’t provide enough protection against the potentially devastating impact of an unjustified complaint.

No right to know everything

“The public does not have a right to know everything. Records are sealed for many and various reasons, generally to protect the innocent,” said Fran Smith, a board member of the Competitive Enterprise Institute, a think tank based in Washington D.C.

In this case, Smith argues, the innocent party is the company.

“If there isn’t a product that caused harm…what is the public interest in trying to destroy a company?” Smith said. “I just don’t see that the consumers’ interests are being, quote, protected.”

But Pamela Gilbert, a lawyer in Washington D.C. who until 2001 was executive director of the Consumer Product Safety Commission, says there are unlikely to be dire consequences even if Company Doe’s identity is revealed.

“As far as I know no one has ever gone out of business because there has been a complaint made against them in a government database,” Gilbert said.

FairWarning is a Los Angeles-based nonprofit investigative news organization focused on public health, safety and environmental issues.

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citizen.org

A page from the opinion written by Federal District Judge Alexander Williams Jr.

“We don’t have closed trials in this country. We don’t allow witnesses to come in and testify wearing bags over their heads. Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”

— Richard Marcus, University of California Hastings College of the Law in San Francisco

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