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Monday January 21, 2013

CPSIA Database Appeal Will Continue

Headlines in this week's issue of



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Commission Is Moving on Third-Party Testing Rule


CPSC Targets Two Fireworks Issues


CPSC Relies on Three Exemptions in FoIA Denials


UL Panel Debates Changes to Table Saw Standard


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A January 11 judicial order denying a request by consumer groups to unseal documents in the CPSIA database case does not mean their appeal has stopped. Scott Michelman, the Public Citizen attorney handling the case, confirmed to PSL that the case will go forward. The order by Judge Alexander Williams was filed in the southern Maryland U.S. District Court. In it, Williams notes that his decision does not stop the appeal, concluding, “Needless to say, however, it is the Fourth Circuit’s purview to decide whether and/or to what extent the Consumer Groups should be able to prosecute their appeal.”


Williams’ argument for denial included the observation that the rights that the unnamed company filed suit to protect and the information that consumer groups’ sought to unseal are “inextricably intertwined.” He said that the decision thus must be on jurisdictional considerations and asserted that his court has jurisdiction to “issue postappeal decisions that act in aid of the appeal.”


He concluded, “Here, a narrow decision vacating the Court’s Order conditionally granting the Consumer Groups’ Motion to Intervene acts to aid the Fourth Circuit’s resolution of the appeal by making it clear that…the Court does not believe that this is an appropriate case for permissive intervention.”


Williams also denied a previous request by the unnamed company for allowance of sole discretion to reveal specific information if “certain events unfolded,” pointing out that the “emergency situation that Plaintiff contemplated has not materialized.”


The case, Company Doe v. Tenenbaum et al., filed in 2011 (PSL, 10/12/11, p. 1), involves a company’s action to bar disclosure of a report posted on the database. The company asserted that the agency had received information showing the report to be materially inaccurate.


The court placed the company’s identity and other information about the situation under seal, pending the outcome of the case, because revealing it would have been tantamount to denial. The court found for the company, calling CPSC’s actions “arbitrary and capricious” (PSL, 10/29/12, p. 1).


CPSC and the Department of Justice initially intended to appeal but did not, leaving Consumer Federation of America, Consumers Union and Public Citizen alone to pursue their appeal to unseal the documents (PSL, 12/24/12, p. 1).


The groups argue that the company’s interest in protecting its reputation meets neither the First Amendment compelling interest test nor a common law standard or secrecy. They also argue that sealing the case violates the common law right of access.