A company using a pseudonym in the U.S. Court of Appeals for the Fourth Circuit is fighting to keep documents under seal in a dispute rooted in whether the public should be allowed to see a consumer product safety report.
The plaintiff, identified only as "Company Doe" in court papers, successfully sued the Consumer Product Safety Commission to block publication of what the company’s lawyers at Gibson, Dunn & Crutcher call a materially inaccurate incident report about a product the company manufactures and sells.
At the request of the company, and over the objection of consumer safety advocates, U.S. District Judge Alexander Williams Jr. of Maryland allowed much of the litigation, which began in 2011, to proceed under seal. He also agreed to let the company litigate under a pseudonym.
Williams last year ruled against the government, issuing an opinion that kept secret the name of the plaintiff and certain details of the case. In the Fourth Circuit, the commission isn’t challenging the substantive decision. The question, rather, is whether private consumer safety advocates have standing to pursue the legal fight.
"No company would hazard the costs and uncertainty of litigation to challenge an inaccurate incident report if a third party could appear, unseal any document revealing the identity of the product’s manufacturer or the content of the report, and render a carefully considered 73-page decision no more than a Pyrrhic victory," Company Doe’s attorneys, including Gibson partner Baruch Fellner, wrote in a brief filed on May 10.
Fellner wrote that "the request to unseal the particular documents protected in this case is not supported by common sense, logic, or case law."
The consumer safety commission maintains a database of company reports at saferproducts.gov. More than 14,000 reports concerning a range of products, from clothing to appliances have been posted on the web site since its launch in March 2011.
The commission, according to rules governing the database, must prevent publication of "information that is false or misleading." Company Doe’s suit marked the first challenge of the commission’s online database of reports.
"Companies faced with this possibility might instead hazard that it is better to permit publication of libelous reports and hope that they are buried among the thousands of other submissions on the database; litigation would only spotlight the false incident report," Company Doe’s lawyers wrote. "But that is precisely the opposite of what Congress intended when it provided companies with a right to identify and rectify any material errors."
The private consumer groups were denied the ability to intervene in the trial court proceedings. The groups should not be permitted to appeal as a non-party, the Gibson attorneys argued.
Three consumer groups Public Citizen, the Consumer Federation of America and Consumers Union have asked the Fourth Circuit to reverse the trial judge’s sealing decision and the ruling that allowed the company to proceed under a pseudonym.
Public Citizen lawyers, including Scott Michelman and Allison Zieve, argued in court documents that courts across the country "have consistently rejected the proposition that a threat to business or professional reputation justifies hiding the identity of a plaintiff."
The challengers argued that the public has a "strong interest in government transparency" and, in particular, the substance of Company Doe’s lawsuit: the availability of product safety information.
"This appeal concerns judicial secrecy," the consumer advocates wrote. "The underlying action concerns whether a particular report of harm concerning a consumer product may be published in the online consumer product safety database maintained by the Consumer Product Safety Commission."
This article originally appeared in The National Law Journal.
