About the author

Lilly Fowler is assistant editor at FairWarning.

4 comments to “Judicial Secrecy Turns Consumer Protection Case Into a Mystery”

  1. Notty

    Here again we see the purveyors of so-called “tort reform” piling on with their specious “facts” that the public’s right to know and to sue when wronged is somehow a bad thing, when in fact it is a part of everyone’s Constitutional right to redress of grievance. The false argument that only by taking away this right can the Republic be saved is getting downright insane. All these corporations want is to be unbridled to run rampant and rapacious over the hapless consumer whose money they want but whose trust they cannot win through any practice of corporate responsibility. These corporate shills cannot go unchallenged any longer – the truth will win the day.

  2. Expat

    Congratulations on an excellent, informative article. If anything, you understate the monstrous secrecy that clouds the American judicial system these days and completely undercuts its function in a democratic society. Every time these corporate shenanigans are exposed to the pure light of sunshine, society is served. The previous commenters clearly have a financial or similar interest in protecting this process, and their comments should be discounted proportionately.

  3. Regan Sweeney

    I understand the concern about judicial proceedings being conducted in secrecy, but this is blowing it far out of proportion and misses the point entirely. The entire reason this decision and the related proceedings needed to be kept confidential (and let’s use the right term here – confidential – we’re not talking about secret Guantanamo Bay proceedings that don’t even have a transcript or record of having happened) is most likely because the company name is the same as the product involved. Simply listing its name in the caption would’ve revealed the product at issue and made the entire case moot. Company Doe didn’t reinvent legal proceedings here, it simply invoked its legally available option to proceed under the name “Company Doe” to protect itself.

    But the outcry over the confidentiality of the suit detracts from the real issue, which is that the suit was necessary in the first place. After five rounds of back-and-forth with the CPSC over what the company properly asserted was a materially inaccurate complaint, the CPSC wouldn’t budge off of its unreasonable position. Company Doe was left with two options – give in to the CPSC’s bullying and allow the improper complaint to be published thereby tarnishing the company’s reputation, or sue the CPSC to force it to obey the law. Which would you choose? Sadly, this is the state of the CPSC these days, it bullies companies into complying with what are often improper and unfounded requests, knowing most companies don’t want to foot the legal bill involved in fighting. I tip my hat to Company Doe for having the guts to stand up to them and hope that they inspire others to do the same.

    To clarify a few other points raised in the article:

    The reason the CPSC isn’t appealing the decision is clear – it has absolutely no grounds on which to appeal. The agency got thoroughly benchslapped in the opinion for behavior the court called “rank speculation,” and “self-serving and unsubstantiated assertion,” to pick some of the nicer descriptions. It summed up the CPSC’s actions as “erratic behavior, beyond being a gross abuse of discretion, emblematiz[ing] the arbitrary and capricious standard that [other landmark court decisions] embody. … [T]he Commission’s decision is unmoored to the CPSIA’s public safety purposes and runs afoul of bedrock principles of administrative law and the sound policies that buoy them.” Appealing that would be a further waste of taxpayer money.

    The court’s decision also hinted at collusion between the groups and the CPSC by noting that the consumer groups managed to file objections in the litigation before the docket had been unsealed, and that the consumer groups’ arguments parroted those of the CPSC. The District Court has already dismissed them from the underlying case, and logic dictates that the 4th Circuit should similarly dismiss the groups as they are no longer party to the decision being appealed.

    Finally, this decision doesn’t “threaten the integrity of the consumer product database,” it strengthens it. The database is only useful if it contains accurate, relevant information, and this court case makes it clear that the CPSC sought to publish a complaint that didn’t meet the statutory requirements for publication. Distilled down – absent this lawsuit and decision, the CPSC was going to violate the law. The database, and the public, are better off for Company Doe’s fight, and I hope it’s inspiring others to do the same.

  4. Darren McKinney

    Nothing I write here is to be construed as a defense of truly dangerous products or their manufacturers. But when a story running more than 1,400 words affords less than 160 words to dissenting opinions — in this case those defending the anonymity of a product maker deemed falsely accused by a judge – such lopsidedness suggests significant bias, if not the wholesale abandonment of basic journalistic standards. (Use and non-use of headshots for those quoted comprise more subtle bias.)

    In any case, if a consumer or consumers believe a given product is dangerous, there’s nothing stopping them from contacting media, consumer groups, members of state legislatures and Congress, and/or tort lawyers for assistance in pursuing their allegations and claims for the benefit of public safety. Of course, those they contact for assistance would act as filters, making independent judgments about the claims’ validity. But a federal government-based system that invites any Jenny McCarthy-like crackpot, disgruntled former employee or common prankster to level wholly unfounded attacks against upstanding, wealth- and job-creating manufacturers with brand reputations to uphold in a competitive marketplace is one of utter Orwellian madness.

    Company Doe and Judge Williams have pulled back the proverbial curtain to reveal the true anti-corporate bias that animates SaferProducts.gov. And assuming the Fourth Circuit similarly stands up against unfiltered libel, the Doe case could set precedent that properly amends the use of and procedures for this database. If the government is to post claims about product dangers on a publicly accessible, taxpayer-funded website, common decency demands that it should verify said claims beforehand. Any and all arguments to the contrary are absurd.

    Darren McKinney
    American Tort Reform Association
    Washington, D.C.

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