Page 12 - Public Citizen News November-December 2013

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12
November/December 2013
Public Citizen News
By Barbara Holzer
The 2008 Consumer Product
Safety Improvement Act created
an electronic database (avail-
able at www.SaferProducts.gov)
through which consumer com-
plaints about safety issues, de-
fects and health hazards relating
to products can be viewed by the
public.
Pushback from companies was
to be expected, but it’s unlikely
anyone envisioned the extent
to which one manufacturer has
gone to prevent the Consumer
Product
Safety
Commission
(CPSC) from applying this por-
tion of the law to that company.
Welcome to the odd case of
Company Doe v. Public Citizen
,
the first legal challenge to the
congressionally mandated CPSC
database.
The case centers on a complaint
that the CPSC received about a
product that allegedly harmed
a child. The CPSC is required by
law to post consumer complaints
within 20 business days of re-
ceiving them. Prior to the post-
ing, product manufacturers are
notified and given a chance to re-
spond, and reports that the CPSC
determines to be inaccurate are
not posted.
In the fall of 2011, after the
CPSC had decided to post the
consumer complaint concern-
ing Company Doe’s product, the
company sued the CPSC to block
the posting of what it claimed
was an inaccurate complaint.
Claiming its professional repu-
Public Citizen Pushes for Transparency in Consumer Product Case
tation would be irreparably dam-
aged by the very mention of its
name or the name of the product
in court records, the company
took the unusual step of seeking
to litigate under the pseudonym
“Company Doe.” The company
took the further step of asking
the court to seal the entire case.
After hearing about this un-
identified company’s attempt to
litigate in secret, Public Citizen,
on behalf of itself, Consumers
Union and Consumer Federation
of America, objected to the seal-
ing and pseudonym requests.
The groups wanted to ensure
that they and other members of
the public could monitor the liti-
gation and the work of the court,
and be able to assess the law-
suit’s effect on the CPSC’s actions
going forward.
The groups’ argument was
based on the public’s First
Amendment
and
common-
law rights of access to judicial
proceedings.
The court, however, grant-
ed the company’s request and
sealed, among other things, the
company’s lawsuit outlining its
claims, the company’s evidence
and even parts of the court’s own
opinion explaining its ruling. At
the same time it granted the seal-
ing motion, the court ruled for
the company on the merits, ef-
fectively ending the case.
On behalf of the consumer
groups, Public Citizen appealed
the sealing order to the U.S.
Court of Appeals for the Fourth
Circuit. Public Citizen attorney
Scott Michelman argued before
the appellate court on Oct. 31 —
the first public hearing in the two
years this case has been litigated.
“The district court’s decision
we’re appealing is based on nine
months’ worth of secret proceed-
ings that resulted in a 73-page
judicial decision with the facts,
name of the company, names of
certain witnesses, and evidence
completely blacked out,” Michel-
man said.
“It’s not the court’s job to de-
cide what the public hears. When
things go into court, they are pre-
sumptively public, so it turns the
First Amendment on its head to
suggest that the court is going to
become the censor of what type
of claims the public may hear,”
Michelman told the three-judge
appellate court panel. “The pub-
lic has a strong interest in the
outcome of this lawsuit and an
equally strong right to learn who
is involved and why.”
Public Citizen’s appeal is sup-
ported by an amicus brief filed
on behalf of news organizations
including The New York Times,
NPR and The Washington Post,
and by an amicus brief from the
ACLU.
The court is expected to rule on
the case within a few months.
By Bridgette Blair
On Dec. 3, Public Citizen will argue be-
fore the U.S. Supreme Court that a Minne-
sota man who was kicked out of a frequent
flyer program has a right to sue the airline
under state law.
A member of Northwest’s frequent flyer
program since 1999, Rabbi S. Binyomin
Ginsberg was dropped from the program
in 2008 — shortly after Northwest an-
nounced its merger with Delta Air Lines.
Northwest told Ginsberg that he had
“abused” the frequent flyer program, but
he did not receive a clear explanation of
what he had done. The airline said that it
had total discretion to end membership in
the program.
Ginsberg sued Northwest, alleging
claims including breach of the obligation
of good faith and fair dealing. The issue
before the Supreme Court is whether Gins-
berg can bring that claim or whether it is
pre-empted by the federal Airline Deregu-
lation Act (ADA) — that is, whether the fed-
eral law bars such lawsuits.
Representing Ginsberg before the Su-
preme Court, Public Citizen will argue that
the ADA does not pre-empt Ginsberg’s
claim.
“The Airline Deregulation Act does not
give airlines freedom to breach the obli-
gation to perform their contracts in good
faith,” said Adina Rosenbaum, the Pub-
lic Citizen attorney arguing
Northwest v.
Ginsberg.
“Moreover, claims that are about
membership in a frequent flyer program
are not sufficiently related to air travel to
fall within the scope of the act’s pre-emp-
tion provision.”
If the court agrees with Public Citizen’s
argument, Ginsberg will be able to move
forward with his lawsuit in the district
court.
For more information about this case,
see http://pubc.it/NorthwestvGinsberg.
Supreme Court to Hear Frequent Flyer Pre-Emption Case
Public Citizen’s appeal is
supported by an amicus
brief filed on behalf of news
organizations including The
New York Times, NPR and The
Washington Post, and by an
amicus brief from the ACLU.