In September 2011, ErgoBaby — a small California-based maker of baby products – received potentially ruinous news. The Consumer Product Safety Commission intended to post a report on its public database of an incident in which a month-old baby in Maryland died while he was in an ErgoBaby carrier. The baby’s mom had been strawberry picking in hot weather with her infant strapped to the front of her body. The carrier’s coverlet was up, and, according to the initial autopsy report, “rebreathing in a hot environmental condition could have contributed to death.”
ErgoBaby brought in lawyers from Gibson, Dunn & Crutcher, who quickly protested that the CPSC’s proposed report contained materially inaccurate information. There was simply no link, ErgoBaby argued, between its carrier and the baby’s death because the autopsy’s note about rebreathing was sheer speculation. The CPSC revised the incident report twice, eventually removing a reference to the possibility that the baby’s death was related to recirculated hot air and stating that the cause of death was undetermined.
ErgoBaby believed that even the revised report would have a devastating impact on its business — and, moreover, according to CEO Margaret Hardin, that the CPSC public database was not intended to include such vague and unsubstantiated reports. In October 2011, the company’s lawyers filed a suit in federal court in Greenbelt, Maryland, to block the CPSC from publishing the stripped-down incident report. But ErgoBaby didn’t sue in its own name. That would have defeated the whole purpose of the litigation by exposing ErgoBaby’s fight with the CPSC over the incident report — exactly what the company was trying to avoid. So, in what Gibson partner Baruch Fellner called “an historic first,” ErgoBaby was identified in the complaint only as “Company Doe.” It asked the court to allow it to proceed under that pseudonym and to seal the entire docket of the case.
Over the next 10 months of litigation with the CPSC — in which it established that the baby in Maryland had choked on an unidentified object — ErgoBaby managed to keep its identity secret. The litigation went so well for the company that even the CPSC’s main expert ended up agreeing that the direct cause of the infant’s death was choking. In a 74-page ruling in July 2012, Judge Alexander Williams enjoined the CPSC from publishing the incident report. He also kept the case records under seal, agreeing with ErgoBaby that its victory over the CPSC would be hollow if its identity were revealed.
ErgoBaby and Gibson Dunn appeared to have blazed a new path for corporate defendants: They could litigate anonymously to clear their names, even in a matter of great public interest, so long as they could persuade the court of the dire consequences of their exposure.