For the past couple of years, we’ve been telling you about “Company Doe,” a manufacturer of some kind who had successfully convinced a federal court to allow it to sue the U.S. Consumer Product Safety Commission in secret, keeping its name and all relevant details of the case shielded behind black boxes of redacted text. Last month, an appeals court recognized how ridiculous this idea was and ordered that Company Doe be unmasked. And yesterday it was finally revealed to be Ergobaby, the company behind Orbit baby carriers.
For those coming late to this story, here’s the background:
Per a Congressional mandate, the CPSC created the SaferProducts.gov database that collects safety-related complaints and concerns from, among other sources, the public. Complaints filed with the database are not automatically published, but go through a review process during which time the company that makes the product is given a chance to reply.
A few years back, a manufacturer took issue with a complaint filed on SaferProducts.gov, claiming statements made in the complaint were materially inaccurate. A back-and-forth then ensued between the company and the CPSC in an effort to make sure the database listing as was accurate as possible. When the company was not satisfied with the redactions suggested by CPSC, it sued the commission and its then-chair, Inez Tenenbaum.
Rather than use the generally public forum of a lawsuit to make its case and clear its name, the company convinced a court to list it as “Company Doe” in the lawsuit and to hide every material fact about the case — the company’s name, location, the type of product, its brand name, the names of all individuals involved — so that the entire matter has so far been litigated behind a steel door of secrecy.
Our colleagues at Consumers Union and other groups petitioned the court to reveal the name of Company Doe and the relevant facts of the case, but the lower court declined this request without explanation.
The groups then appeals to 4th Circuit, which in April ruled that “the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings” and ordered the lower court to remove the veil of secrecy surrounding this case.
While the court documents remain redacted for the time being (that should be happening in the near future), a statement from Ergobaby sheds some light on its side of the story.
According to Ergobaby, this all began with an incident in 2011, following the tragic death of a baby. It appears that were was a dispute over whether an Ergobaby carrier was somehow involved in the child’s passing or if it was related to a foreign object in the baby’s airway.
Ergobaby says the court ruled in its favor, determining that the carrier was not involved in the fatal incident.
The company says it asked to litigate in secret to prevent “the publication of a misleading report on a governmental website that implied this tragedy was related to our product.”
Ergobaby says that it is now concerned that news articles surrounding identity of “Company Doe” will omit certain details and give the appearance that its product was somehow involved in this death.
Alas, this is the corner that the company painted itself into by attempting to undermine the Constitution and litigate without concern of having to make its defense public.
“The company, Ergobaby, spent years and probably hundreds of thousands of dollars to hide its identity and the substance of its litigation about a report to the CPSC,” says Scott Michelman, an attorney for Public Citizen who has argued for this case to be un-redacted. “Ironically, although the judge in the case vindicated Ergobaby’s position with respect to its product, Ergobaby’s attempt to litigate in secret has probably attracted more attention to the case than if the company had not sought to sidestep the principle that judicial proceedings are generally conducted in the open, so the public can oversee the work of the courts.”
It’s now in Ergobaby’s best interest to be as forthcoming as it possibly can, as it’s almost instinctive to assume that anyone wishing to obscure this level of detail from the public would be doing something that merits hiding.
Michelman says the transparency in the Company Doe case is “better late than never” and that it “will help the public understand how this first-ever challenge to the operation of the CPSC’s database was adjudicated and the ramifications of the court’s decision for the agency’s future operation of the database.”
“This case could have set a very troubling precedent,” said Ami Gadhia, senior policy counsel for Consumers Union. “If a company sues to keep its name out of the complaint database, it shouldn’t be able to use the courts to hide its identity from the public. The court has helped preserve the integrity of the database, and it recognized the importance of transparency in court proceedings, which we think is critical.”