I plow through a lot of appellate opinions. Few of them make me want to stand up and read aloud in the Reuters newsroom. But a couple of sentences, from a ruling Wednesday by the 4th U.S. Circuit Court of Appeals, just about pushed me out of my chair. “A corporation very well may desire that the allegations lodged against it in the course of litigation be kept from public view to protect its corporate image, but the First Amendment right of access does not yield to such an interest,” the three-judge 4th Circuit panel wrote. “Whether in the context of products liability claims, securities litigation, employment matters or consumer fraud cases, the public and press enjoy a presumptive right of access to civil proceedings and documents filed therein, notwithstanding the negative publicity those documents may shower upon a company.” What an unwavering endorsement of open courts!
It’s all the more appropriate that the 4th Circuit underscored the public’s right to know because the case that prompted its ruling implicates the government’s discretion to protect public safety. In 2011, an unidentified local government agency submitted an incident report to the Consumer Product Safety Commission. The CPSC notified the company that manufactures the supposedly dangerous product, which insisted that the report was materially inaccurate and should not be published on the recently-established CPSC database for reports of unsafe products. The Commission agreed to some concessions, but ultimately said it intended to publish the report. The company sued in federal court in Greenbelt, Maryland, to enjoin the publication. It also moved to seal the litigation and to proceed under the pseudonym “Company Doe.”
Public Citizen, the Consumer Federation of America and the Consumers Union intervened to join the CPSC in opposing the company’s request to litigate in secret, but U.S. District Judge Alexander Williams sided with Company Doe. If the company were forced to reveal its identity in the litigation, the judge reasoned, it would suffer exactly the same reputational harm it was trying to avert through its injunction suit. The only way to protect the company from unwarranted damage, Williams said, was to permit the pseudonym and sealing until he reached a determination.
The judge ended up granting Company Doe summary judgment, barring the CPSC from publishing the dangerous product report and maintaining the seal order on the records of the case. Even his 73-page ruling is heavily redacted to remove any clues about Company Doe’s identity or the allegedly harmful product it makes.
Both the CPSC and the consumer groups appealed the case to the 4th Circuit; the government challenged the injunction, and the public interest groups focused on the seal order. The CPSC dropped the appeal without explanation in December 2012. Company Doe’s lawyers at Gibson, Dunn & Crutcher asked Judge Williams to reconsider the standing of Public Citizen and the other groups. He revoked their intervention, and Gibson Dunn moved to dismiss the 4th Circuit appeal, arguing that the public interest groups don’t have an interest in the underlying litigation and don’t have constitutional standing.