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Sometimes the Good Guys Win: Unmasking “Company Doe”

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Last week a federal district appeals court issued a decision that is a victory for scientific integrity, transparency,  and consumer protection.

The court refused to permit a company to be basically treated like a rape victim—to have its lawsuit against the Consumer Product Safety Commission (CPSC)—to be conducted entirely in secret. The company, called only “Company Doe” in its complaint, sued CPSC in October 2011 asking the court to block the agency from posting a complaint about one of its products on the agency’s public online consumer complaint databaseThe company said the report was inaccurate, but CPSC disagreed. This was the first legal challenge to the database.

This complaint was not trivial. It was a report that linked the death of an infant to a product made and sold by the company. Nevertheless, the court case went on in secret, and Company Doe won; the court ruled that the complaint could not be posted on the public database. Even the court’s decision was heavily redacted.

Consumers will finally know the identity of "Company Doe." Photo: Public Domain

Consumers will finally know the identity of “Company Doe.”

Public Citizen, along with Consumer Federation of America and Consumers Union, sued to open the court proceedings and identify Company Doe.  On April 16, the public won. In a unanimous decision, the Fourth Circuit Court of Appeals held that “the district court’s sealing order violates the public’s right of access under the First Amendment.” The court found that the district court “abused its discretion” in permitting Company Doe to “litigate pseudonymously.” The appellate court ordered the district court to “unseal the case in its entirety.” The public, finally, will get to know the identity of Company Doe.

The decision not only protects American families from being harmed by defective products, it also advances scientific integrity at the agency.

A major victory

To understand why the decision is so important, you have to know the story of how the consumer complaint database became part of Congress’s groundbreaking effort to strengthen the CPSC in 2008.

The law that created CPSC has a provision that prevents the agency from warning the public about potential harms from a consumer product until it has gone through a delicate dance with the product maker. CPSC has to negotiate even its press release announcing the harm. Needless to say, these negotiations take time, putting thousands of consumers at risk. Compounding the problem a decade or so ago was an agency that for years had been vulnerable to political and corporate interference and denied the resources to do its job. There have been tragic stories of toddlers who have died or been seriously injured because the warnings and the recalls happened months after the product caused harm.

Congress could have simply taken these restrictions out of the law, but politically there was too much pushback from corporate America. So it opted for the next best thing: CPSC would create a public consumer complaint database. The online database was part of the sweeping Consumer Product Safety Improvement Act, which strengthened the agency, required higher standards for dangers to children, and gave the cash-starved agency more financial support.

The database would require specific information about the product—cribs, toys, lawnmowers, you name it. It would take complaints from consumers, first responders and health care providers. CPSC would give companies a heads up about these reports, and the opportunity to respond to them, and challenge their accuracy. And the database would state emphatically and clearly that this was a publicly accessible forum for listing consumer concerns, but not an official CPSC assessment of the product.

The concept of publicly posted consumer complaints is hardly revolutionary. Hotels, computers, hair stylists, restaurants, handymen—you name it, and likely you can find consumer reviews. Commerce has not stopped in its tracks because of these public forums.

But that didn’t stop companies from launching a massive lobbying effort to block or weaken the complaint database. They warned that trial lawyers would roam the database looking for potential litigants, that the agency would be swamped with tens of thousands of complaints, many of them bogus, and that consumers would not be smart enough to read the disclaimer that this was not CPSC’s official assessment.

Our Scientific Integrity program joined with consumer and public interest groups to support the CPSC reform law, and to protect the database. We had heard from former and current CPSC scientists who had told us that their efforts to warn the public through their studies of products, such as All-Terrain Vehicles, had often been blocked by senior officials at the agency. We knew that one way to help the science emerge was for the public to help the agency track emerging safety hazards. We knew that the delays that kept product dangers out of the public eye had caused deaths and serious harm, often to children.

Under the leadership of Inez Tenenbaum, who ran the agency from June 2009 until  November 30, 2013, CPSC responded to the complaints, carefully and thoroughly, and created its database.

This thing is working

All the warnings about chaos did not materialize. In June 2011, Rep. Henry Waxman (D-CA) released an analysis of the database’s first three months of operation. The database received 1,624 reports of defective or harmful products, one-third of them about products that caused death or injury. Only 202—or less than 13 percent—of the reports were challenged by companies for accuracy. Of that number only 154 were deemed by the CPSC to be inaccurate. The agency either corrected information on the database or removed the posted complaint altogether. Currently, the database contains more than 18,000 reports.

And the database is providing information to the public. During its first quarter, it got 305,000 visits and visitors conducted 1.8 million product searches. It was helping the CPSC identify emerging hazards. It was offering companies the opportunity to respond to and correct complaints. In short, it was working.

But if Company Doe’s gambit had succeeded, it would have inspired many other companies to try the same thing. The time and resources CPSC would devote to fighting these lawsuits would be substantial. And if a company could keep its lawsuit secret, there was no downside to trying. Even if it lost, it could effectively delay news about product defects, for months, even years.

Company Doe may appeal the decision. But at least for now, it’s time to celebrate. Sometimes, the good guys do win.

 

Posted in: Science and Democracy, Scientific Integrity Tags: , , , , , ,

About the author: Celia Wexler is a senior Washington representative for the Scientific Integrity Initiative at UCS. A former award-winning journalist, Wexler is the author of Out of the News: Former Journalists Discuss a Profession in Crisis, published in 2012 by McFarland. At UCS, Wexler’s issue portfolio includes food and drug safety, protections for scientist whistleblowers, and government transparency and accountability. See Celia's full bio.

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  • Joyce P

    I would just like to that all the organizations who fought so hard to get this decision. Not only does it protect our right of access under the FIrst Amendment, it protects the safety of our children and our families. And we can only hope that the public database will continue to be protected.
    If we researched death reports long enough we might be able to find out what caused this death. We know it’s an infant and since CPSC is involved we know it’s a product (not a food or medicine). So we are probably looking at a pacifier, some type of bedding or baby carrying device. And some company that’s NOT posted on the recall list because they fought to hide their name.

  • Suzanne Strassberg

    So Right! Like Celia’s article so eloquently explains, the whole purpose of this database is to protect the public. There were concerns about agencies keeping information away from the public and this court case is all about a manufacturer trying to keep information away from the public. I am extremely pleased with the decision to release the name of Company Doe and pleased about the progress and defense of the consumer database. Any other court decision would have been a huge blow to transparency.

  • Walker Smith

    Don, Sounds like you are a company insider and hiding just like the company, since you will not publish your full name. There is no way for the public to assess whether or not the product caused the death of a child because there is no way for the public to evaluate the case. The company has kept this information hidden, obviously in an attempt to protect their financial interests. Let the world review the facts, and let the company have the courage to defend themselves under their own names. Refusing to do so merely makes them look guilty and at fault and has brought a lot more attention to them than they would have had if they had simply allowed this to be addressed in the database. Now everyone is waiting to hear who they are and they will become a household name which, now, thanks to the lawsuit and publicity, may put them out of business. Someone gave them terrible legal advice. Millions of product assessments hit the internet every day, from Amazon reviews and everywhere else, alleging safety, ease of use, and related issues, whether you like it or not. If a company is not willing to have the courage to allow themselves to be identified in the court of public opinion in this day and age then they do not belong in business.

    • Cal Reed

      Well said Walker! I thought this comment section required people to use their real names. That means a whole name. Guess it’s becoming a habit… hiding the name in comments sections… hiding the name in court… I was certainly glad to hear this court decision, and like others, am waiting enthusiastically for the release of the name of the company that tried to hide from the public.

    • Markert Tee

      Well close, but I’ll bet Don works for the attorneys. He writes “the original court ruling looked at all the facts and sided with the company that there was no way their product was linked to the incident.” We can’t research this ourselves because we cannot find the original court ruling now because we do not know the company name. But Don does, don’t you Don? Hope your boss doesn’t read this. You are close to spilling the beans.

      • Enid

        Great article and great decision that will affect our future to monitor the safety of consumer products. Thanks to God that all the lobbying efforts and money, lots of money, to keep the company secret have not succeeded, or else the future of the database would be worthless.
        In regard to Don’s assertions about the original case, he is just spitting back the plaintiff’s argument and not the facts. There is so much text from the redacted decision (found at http://www.scribd.com/doc/143011416/Company-Doe-decision) that it’s impossible to make a determination about the details of the original case in Maryland Federal District Court. The Commission’s decision to post was anything BUT arbitrary and capricious (as plaintiff contends). The Commission revised their report several times at plantiff’s request, making all attempts to be as factual as possible. Still this was not good enough for Company Doe who did not want their reputation sullied by allowing the true facts to come out. Shame on them. We need the model and serial number as well as the product name to come out as soon as possible so we can make sure no more infant deaths occur. If this product was not responsible for the death, then Company Doe has nothing to be concerned about.

  • Don

    So let me get this straight. Someone files a claim on the database that is factually incorrect (meaning the facts and details surrounding this “linked the death of an infant to a product made and sold by the company” was not true), and you consider the publishing of this slanderous material a “major victory”? Keep in mind, the original court ruling looked at all the facts and sided with the company that there was no way their product was linked to the incident, yet the CPSC was going to publish the information anyway.

    If any site or news organization would post this complaint, the company would have recourse to go after them for slander and force them to remove the information as being false and malicious. However, the CPSC database has no such recourse; the mere publishing of the information gives it credibility and a company has no recourse but to post a statement along with it.

    You want to talk about abuse, let’s talk about government sanctioned slander without any recourse. This is the true issue in this case.

    • Laura Brown

      Ms. Wexler’s article makes it clear that there’s a method the CPSC uses and companies can proceed with to rectify misstatements and errors in the CPSC database. The company gets an opportunity to address the assertions to be posted before they are posted. And these are arbitrated by Federal personnel. The heinous action taken by this company is that they sued to keep their information secret, and even kept their name secret in the lawsuit, refusing to be part of a national plan to keep children safer. This tells you all you need to know about how much company doe really cares about protecting the nation’s children. While this case has been pending, children’s lives may have been put in jeopardy. I am sure company doe would say that is not true. But how are parents to know when the company and the product name are kept secret and information withheld from the database? How long is this going to go on? Those of us who have an infant wonder if they are safe at this moment because we know there could be a potential hazard in our home, but we just don’t know which one.

    • Mike Fork

      No “factually incorrect” information is posted in the CPSC public database. It is first checked and verified. That’s the whole point. While CPSC does not endorse what is posted there, it doesn’t just allow anyone to post willy-nilly. All sorts of information must be provided, including individuals identifying themselves so that CPSC can follow up. The company also gets a chance to respond before any information is posted.

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