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Consumer groups aim to unmask Company Doe by unsealing secret court record

The company doesn’t want you to know how it kept a safety-related report about its product off SaferProducts.gov

Published: October 30, 2013 03:15 PM

It's somehow fitting that the first case on the docket in the Richmond, Va., federal appeals court tomorrow—Halloween—features a coalition of consumer groups that plan to present arguments in an effort to unmask “Company Doe." The mysterious company, known only by that pseudonym, filed a lawsuit in 2011 that succeeded in preventing the Consumer Product Safety Commission from posting on its SaferProducts.gov public database a report from a local government agency about a child who was allegedly harmed by a Company Doe product.

No public information is available about the Company Doe product, the nature of the alleged injury, or the identity of the manufacturer. That’s because a federal judge in a district court in Greenbelt, Md., was persuaded by the company to conduct the case in complete secrecy. The judge allowed the company to use that pseudonym and participate in nine months of secret court proceedings, after which he ruled in favor of the company and retained the seal on nearly all court documents. Company Doe contended that the report filed with the CPSC was inaccurate and that posting it would cause “irreparable harm to its reputation and financial well-being," according to the opinion made public in October 2012 by the U.S. District Court Judge Alexander Williams.

And while courts generally allow the use of pseudonyms to protect people in cases involving juveniles, sexual assault, and other sensitive issues, it’s highly unusual for a corporation to be permitted to file a suit under a pseudonym to protect its reputation or economic interests, according to Joan Steinman, a professor at Chicago-Kent College of Law who has published studies on court cases involving the use of pseudonyms. “Having this whole thing under wraps does not seem right,“ she said.

As shown below, even the judge’s ruling is heavily redacted, with crucial portions of the document blacked out to avoid revealing anything about the company or any relevant facts underlying the court’s decision.

Few clues appear in this court document, one of only a few that are not entirely sealed.

Who is Company Doe?

Consumers Union, the policy and advocacy arm of Consumer Reports, has joined with Public Citizen and Consumer Federation of America in filing an appeal to unseal the court documents and reveal the identity of Company Doe. Attorneys for the anonymous company not only oppose lifting the veil of secrecy but are also even challenging the consumer groups’ right to appeal.

Bloomberg, Dow Jones, Gannett, NPR, The New York Times, and The Washington Post, and other media organizations have filed a friend of the court brief supporting the consumer groups’ efforts to unseal the court records in this controversial case. “The First Amendment guarantees the right to see justice unfold," Ken Paulson, a First Amendment expert and dean of the College of Mass Communications at Middle Tennessee State University, said. "If a free press is truly to be a watchdog, it has to be in the courtroom, not guessing what blacked out documents mean after proceedings are conducted in private.”

The Company Doe case, being heard by the U.S. Court of Appeals for the Fourth Circuit, appeals the secret proceedings that marked the first legal challenge to SaferProducts.gov, a database started in 2011 by the CPSC to allow consumers, child-service providers, health-care professionals, government officials, and public-safety organizations to file publicly searchable reports about potentially dangerous products.

Before the CPSC posts any report, it is required by law to notify manufacturers and give them a chance to respond. If information submitted is shown to be false or misleading, the report must be corrected in order to appear online, and companies are permitted to post their own responses adjacent to any consumer complaints about their product. The process takes up to 20 business days before anything is made public. This built-in requirement helps ensure that incorrect information is not posted. The website’s easy-to-access, consumer-driven information is an important supplement to the CPSC’s recall process, which is often long.

SaferProducts.gov can help consumers by functioning as an early-warning system, says Pamela Gilbert, former executive director of the CPSC who now is a partner in the Washington, D.C., law firm Cuneo Gilbert & LaDuca. “When I was at CPSC, one of the dilemmas we faced is that it takes time to work with a company to arrange a recall for a product causing injuries or deaths, and our staff would feel guilty during the time period when that product was still on out on the market yet the public had no idea there was anything wrong with it, and by law we couldn’t warn them not to buy it,” she said.

Thanks to SaferProducts.gov, safety-related complaints that the CPSC receives can now be shared with the public, providing important information consumers can use to protect themselves. But Gilbert is among those who fears that the outcome of the Company Doe case could hurt consumers by prompting a flood of similar legal challenges from other companies trying to prevent public posting of negative reports about their products. 

—Andrea Rock

   

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