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May 8, 2014

Company Doe Unmasked: Ergobaby Tried to Hide Litigation Against Consumer Product Safety Commission From Public

Statement of Scott Michelman, Attorney, Public Citizen

Note: Today, the baby-carrier maker Ergobaby revealed that it is the company, known before today only as “Company Doe,” that sued the federal government in 2011 to prevent a negative report about Ergobaby’s baby carrier from going into the Consumer Product Safety Commission’s online product safety database. Ergobaby persuaded a judge to seal most of the court documents and allow the company to litigate under the pseudonym “Company Doe.” Public Citizen appealed, seeking public access to the case files, and won. In April, the U.S. Circuit Court of Appeals for the Fourth Circuit ordered the record unsealed.

After more than two and a half years of secret litigation, the public finally knows the identity of the mysterious “Company Doe” and – equally important – will soon know the content of the documents filed in the case and the resulting court decision on the merits.

The company, Ergobaby, spent years and probably hundreds of thousands of dollars to hide its identity and the substance of its litigation about a report to the federal Consumer Product Safety Commission (CPSC). Ironically, although the judge in the case vindicated Ergobaby’s position with respect to its product, Ergobaby’s attempt to litigate in secret has probably attracted more attention to the case than if the company had not sought to sidestep the principle that judicial proceedings are generally conducted in the open, so the public can oversee the work of the courts.

In this case, transparency, better late than never, will help the public understand how this first-ever challenge to the operation of the CPSC’s database was adjudicated and the ramifications of the court’s decision for the agency’s future operation of the database.

We applaud the Fourth Circuit for taking a strong stand in favor of transparency in the judicial process, which is a core right under the First Amendment and vital to an open and democratic society. Lifting the veil of secrecy from this case also ensures the smooth functioning of the consumer product safety database; had Ergobaby prevailed, other companies may have similarly tried to challenge inclusion of reports in the CSPC database through secret court proceedings.

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