Opinion

Alison Frankel

‘Company Doe’ cites gay marriage ruling to block consumer group appeal

By Alison Frankel
July 12, 2013

Well, that didn’t take long.

Two weeks ago, the U.S. Supreme Court held in Hollingsworth v. Perry that an advocacy group opposing same-sex marriage could not stand in the shoes of California officials to appeal a trial court ruling that the state’s ban was unconstitutional. Yesterday, the firm that argued in the Supreme Court for same-sex couples, Gibson, Dunn & Crutcher, filed a letter brief at the 4th Circuit, arguing that under Perry, three public interest groups do not have standing to appeal a trial court ruling against the Consumer Products Safety Commission.

The issue of the consumer groups’ standing is just the latest development in this precedent-setting litigation over the Consumer Product Safety Improvement Act of 2008. Among other things, the 2008 law required the CPSC to establish a publicly accessible database for reports of unsafe products. In 2011, an unidentified local government agency submitted an incident report to the commission, which alerted the company that makes the purportedly problematic product. The company responded that the incident report was materially inaccurate and should not be published. There was considerable back-and-forth between the company and the commission, in which the commission suggested revisions to the incident report that the company rejected as materially inaccurate. In October 2011, the company sued to enjoin the commission from publishing its third version of the incident report, arguing that it would suffer irreparable harm from a baseless and inflammatory accusation.

You’ve probably noted my repeated references to “the company” and wondered what company I’m talking about. You’ve also probably wondered what the allegedly unsafe product is, and what’s in the inflammatory local government report on it. Keep on wondering. Gibson Dunn filed the injunction suit in federal court in Greenbelt, Maryland, on behalf of “Company Doe.” Through two years of subsequent litigation, the identity of the company and the nature of its product have remained a secret. U.S. District Judge Alexander Williams permitted Company Doe to try its case anonymously, with all factually-specific filings under seal.

That didn’t sit with Public Citizen, the Consumer Federation of America and the Consumers Union, which intervened in Doe’s case to move that the records be unsealed. Company Doe and its lawyers argued that unsealing the court record would have exactly the same undesirable effect as publishing the supposedly misleading incident report. “Any organization must have the right to go to court to prevent erroneous entries on government databases without suffering the damage that would be caused by publication of the litigation,” Doe counsel Baruch Fellner of Gibson Dunn told me.

In a 73-page merits opinion last October, Judge Williams agreed. He ruled that the commission may not publish the incident report and also granted Company Doe’s motion to keep the record of the case sealed.

Public Citizen and the other consumer groups considered that a dangerous precedent in this first-ever litigation of a corporation’s right to block publication of incident reports to the CPSC public database. “This very much thwarts Congress’s goal,” said Scott Michelman of Public Citizen. Keeping records sealed also thwarts faith in the court system, since it means there’s no public accountability, he said. So the consumer groups, along with the CPSC, appealed Alexander’s ruling to the 4th Circuit. The CPSC’s appeal focused on publication of the incident report; the public interest groups wanted the appellate court to unseal the trial court record.

Last December, without explanation, the commission dropped its appeal at the 4th Circuit. (I left a message for the Justice Department lawyer who signed the notice of withdrawal but didn’t hear back.) Company Doe went back to Judge Williams in the trial court to ask for reconsideration of the public interest groups’ status as intervenors. In a ruling in January, the judge revoked their intervention.

The company then asked the 4th Circuit to dismiss the appeal. The only remaining dispute was the collateral question of sealed court records, argued Doe’s lawyers at Gibson Dunn. And because the public interest groups had been denied intervention and the only real defendant had dropped out, “no extant case or controversy in which consumer groups may properly intervene survives.” The consumer groups countered in a response brief that Williams’s order sealing the case records presents a live controversy and that they have standing to appeal it because they were involved in the trial court litigation and are bound by the adverse ruling.

The 4th Circuit deferred action on Company Doe’s motion, which had the effect of permitting the appeal to proceed. Merits briefs have been filed and amici have begun weighing in. Then, on Thursday, Gibson Dunn filed its letter arguing that the Supreme Court’s ruling in Perry only strengthens Company Doe’s position on the consumer groups’ lack of standing. “Perry confirms that the consumer groups lack standing to pursue this appeal in the CPSC’s absence,” the letter said. “The Supreme Court held that proponents of a ballot initiative lack a ‘personal stake’ in defending its enforcement that is distinguishable from the general interest of every citizen. It follows a fortiori that the consumer groups lack a ‘personal, particularized injury’ in unveiling clearly-erroneous facts under a statute that provides no private cause of action, in a case the government declined to appeal.” (Doe counsel Fellner declined to comment on the Perry letter.)

Michelman of Public Citizen told me that there are key procedural differences between the appeals in the same-sex marriage case and the Doe case that make the Perry precedent inapt. Public Citizen, unlike the ballot initiative groups in Perry, isn’t claiming authority to stand in for the government. It’s not even challenging the merits ruling that the CPSC may not publish the incident report. “We’re litigating the collateral issue of whether we have a right to the underlying records,” Michelman said. “It’s a common practice across courts of appeal: Parties who seek access to records are permitted to appeal the denial of access.” Moreover, Michelman said, the consumer groups have standing to appeal Judge Williams’s revocation of their right to intervene. Late Friday, the consumer groups filed a formal letter response to Company Doe’s Perry letter.

To my surprise, Company Doe’s letter brief is not the first citation of the Supreme Court’s Perry decision. The ruling has already popped up in an Alabama federal court decision on the standing of a plaintiff who’s in Chapter 7 bankruptcy to pursue a job discrimination suit; U.S. District Judge Virginia Hopkins held that the plaintiff didn’t have standing because he lost a direct stake in the outcome of the discrimination suit when he filed for bankruptcy protection.

I predicted that Perry’s legacy wouldn’t be in civil rights but in civil procedure. So far, it looks like that prediction is coming true.

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