E-Alert Case Updates

Actions to enjoin publication under CPSIA cannot be sealed from the public

Doe v. Public Citizen, et al.
--- F.3d--- (April 16, 2014) (not yet published)
by Gregory Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In 2008, Congress passed the Consumer Product Safety Improvement Act (the “Act”), which, in part, required that the Consumer Product Safety Commission (“Commission”) publish a publicly available database regarding children’s products and “reports of harm” (“Reports”) about the products’ safety. The Act included a procedure for manufacturers to dispute Reports that they alleged were misleading.

In 2011, the Commission received a Report about a particular children’s product from a local government agency. The manufacturer (“Doe”) disputed the report, indicating that the information provided was misleading as to the product’s safety and could not be published. The Commission attempted to negotiate a redacted version of the Report that Doe would permit to be published. When the parties hit an impasse, the Commission indicated its intent to publish the Report. Doe filed suit to enjoin the publication of the Report in the database.

Doe also filed a motion to litigate the case under seal and proceed under a pseudonym, claiming that the publicly available litigation documents would vitiate the relief being sought in the action, and potentially exposed the company to severe reputational harm. The District Court’s local rules required that the motion to seal not be ruled upon for (14) days to permit interested parties to file oppositions. Both the Commission and two consumer groups (“Consumer Groups”) filed briefs, and filed to have the sealing motion itself unsealed. The sealing motion was not ruled upon by the District Court until nine (9) months after being filed, when it ruled on the parties’ motions for summary judgment, finding in favor of Doe and holding that the Report failed to indicate a harm relating to the use of the product and the Report was materially inaccurate. As a result, the entirety of the litigation occurred under seal. The Court then ruled on the motion to seal and file under a pseudonym, finding that Doe’s interests outweighed the presumption favoring public access to judicial proceedings, but required that Doe propose redactions to the record necessary to protect its confidential information. The commission objected, but the Court ultimately permitted Doe’s redactions, including those to the Court’s own published opinion.

The Commission appealed and the Consumer Groups filed a post-judgment motion to intervene for the purpose of appealing the sealing and pseudonym orders. The court failed to rule on the motion prior to the time to appeal, and the Consumer Groups appealed the constructive denial of their motion, and the other orders of the case. After the Commission dismissed its appeal, Doe moved to dismiss the Consumer Groups’ appeal as being inextricably intertwined with the injunction, and when the Commission was enjoined from publishing the Report, the Consumer Groups’ objections became moot.

The Fourth Circuit addressed a few preliminary issues, holding that the Consumer Groups had a continuing interest in the matter, and thus had standing to intervene and the right to appeal. The Court further held that the Consumer Groups had a sufficient injury to confer jurisdiction under Article III of the U.S. Constitution, similar to the press in prior sealing order cases.

The Court then addressed the sealing order, noting that the right of access to litigation documents extended to both the Court’s orders, as well as the motions for summary judgment. The Court also held that the public had a presumptive right to inspect the docket sheets in civil cases as a necessary aspect of access to civil proceedings.

The Court addressed Doe’s countervailing interests “(1) Company Doe’s interest in “preserving its reputational and fiscal health”; (2) Company Doe’s interest in ensuring the efficacy of the injunctive relief awarded by the district court; and (3) Company Doe’s First Amendment right to petition the courts.” Id. at 17. The Court noted that while there were some instances that warranted sealing a document to protect a corporation, no cases could be found that permitted sealing the record based on “reputational harm.” Further, the Court found that harm would not result if the proceeding were not sealed. The Court noted that neither the Act nor the Constitution permitted a proceeding to be held in secret. The Act merely allowed the manufacturer the right to keep challenged Reports from the online database. The Court also dismissed the First Amendment argument, noting that the First Amendment did not provide a right to petition the court in secret. Further, the public had an increased interest in this litigation as it involved the first challenge to publication of a Report under the Act.

After admonishing the trial court for the delay in ruling on the motion to seal, the appellate court addressed the pseudonym ruling. While the Federal Rules of Civil Procedure required the parties of a case to be disclosed, in certain circumstances anonymity was permitted.

Whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent nonparties; the ages of the person whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

Id. at 22, quoting James v. Jacobson, 6 F.3d 233, 239 (4th Cir.1993). When a party seeks to proceed under a pseudonym,” a district court has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party’s stated interest in anonymity against the public’s interest in openness and any prejudice that anonymity would pose to the opposing party.” Id. In this case, the court held that Doe had failed to demonstrate the exceptional circumstances to outweigh the interests of the public.

The Court vacated in part, reversed in part, and remanded the action back to the trial court with instructions to unseal the record in its entirety.