The Invisible Case Against the Consumer Product Safety Commission

An anonymous company’s secret challenge to the agency’s new database of safety complaints.

Chairman of the US Consumer Product Safety Commission Inez Moore Tenenbaum.
Chairman of the Consumer Product Safety Commission Inez Moore Tenenbaum

Photograph by John Thys/AFP/Getty Images.

Sometime before October 2011, an unknown child was injured by an unknown product that was produced by an unknown manufacturer. The Consumer Product Safety Commission published a report of the injury in its online database of safety complaints. Company Doe, as the manufacturer is known, believed the report was “materially inaccurate,” and so the manufacturer brought suit—in secret.

The details are all weirdly unknown, and it’s the last part that has consumer advocates particularly worried.

Company Doe was the first company to successfully challenge the commission’s relatively new online consumer product safety database, which was launched (per congressional fiat) in March 2011. The database is supposed to give consumers an early warning about products that might pose safety risks. Company Doe argued that there was no factual, scientific, or medical link between its product and the injury at issue, saying that the commission’s report unfairly damaged the manufacturer’s reputation. Company Doe asked a federal court in Maryland to let its suit proceed anonymously and under seal, because making the case a matter of public record would defeat the suit’s purpose by revealing that one of Company Doe’s products allegedly injured a child, thus causing the precise kind of reputational damage the commission’s report could have caused. The judge agreed with Company Doe. Last July, he issued a 73-page opinion telling the commission not to publish its report and allowing Company Doe to proceed in secret, as requested. “The challenged report is materially inaccurate, injurious to [Company Doe’s] reputation, and risks hard to [Company Doe’s] economic interests,” the court held. The opinion itself, which wasn’t released until October, is so heavily redacted that it reads like a Mad Libs.

The government decided earlier this month that it wouldn’t appeal the district court’s decision, but Public Citizen and two other consumer-advocate organizations, granted permission to intervene by the court in October, are pressing on. Not surprisingly, they’re worried about all the secrecy. “It’s at odds with the First Amendment and our tradition of open judicial proceedings,” said Scott Michelman, the Public Citizen attorney representing the consumer advocates on appeal.

The First Amendment, as well as good old common law, favors public access to court proceedings. The basic principle is that the courts, like the other branches, must be subject to public scrutiny. Public Citizen argues that this is particularly important when the health and safety of consumers is at stake. What’s more, courts have consistently rejected the notion that any court can bar the public’s access to proceedings simply because a company may be embarrassed by what could be disclosed. And Public Citizen worries that allowing Company Doe to litigate under seal and with a pseudonym will lead other manufacturers to follow suit—resulting in a lot of anonymous litigation about the Consumer Product Safety Commission’s findings, obstructing the entire purpose of the new database.

Baruch Fellner, the Gibson Dunn attorney who represents this mysterious Company Doe, countered that the government’s decision not to appeal says something, too. “The government knows these issues considerably better than Public Citizen,” Fellner told me. “If anyone wants to vindicate its own database, it’s the government.”

Now it’s up to Public Citizen and its companion groups to wage a litigation battle in the dark, and for the 4th Circuit to fill in the blank: Can a company like Doe, fearful its reputation will be tarnished by a report of the Consumer Product Safety Commission, proceed this invisibly in federal court?