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 The company responded that the incident report was materially inaccurate and should not be published.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.