Earlier this month the CPSC dropped its Fourth Circuit appeal of Company Doe v. Tenenbaum, 8:11-cv-02958, a Maryland District Court's ruling that it could not publish on the Safeproducts.gov database a misleading complaint about an anonymous company's product.  To the extent manufacturers and businesses may have breathed a sigh of relief, their celebration may have been premature.  Consumer groups Public Citizen, Consumers Union, and Consumer Federation of America maintain their separate challenge to the decision.

Although the consumer groups' appeal does not challenge the entirety of the District Court ruling, it attacks the Company Doe's ability to remain anonymous and suppress the content of the complaint during litigation.  If the groups' challenge succeeds, it could undercut the benefit of the District Court's ruling.

Presumably, the reason the anonymous company challenged the CPSC's decision to publish the misleading complaint was to prevent public dissemination of misinformation about the company and its product.  If the consumer groups succeed in their appeal, a company wishing to challenge the CPSC would be forced to disclose both its name and the content of the complaint.  Essentially, to prevent the dissemination of what it perceives to be misinformation, a company would be required to first publish that same misinformation.

Clearly, the CPSC's retreat is not the end of the story.  If the consumer groups succeed in their appeal, companies will be faced with a catch-22.  They can either allow the CSPC to publish information in the Safeproducts.gov database or they can publish the information themselves by filing a complaint that identifies both the companies involved and the complaints against them.  Either way, the information would be disseminated.

William F. Auther is a partner in the Phoenix, Arizona office of Bowman and Brooke LLP, where he has an active trial practice in product liability and business litigation.  Amanda Heitz is an associate at Bowman and Brooke.

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