Post-Company Doe
Survey

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* 1. Does the CPSIA provide sufficient safeguards to prevent the publication of erroneous information?

Yes

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* 2. If a "report of harm" indisputably contains materially inaccurate statements, is it sufficient to simply remove those statements that are inaccurate before publishing or should the entire report be discarded?

It is sufficient to remove the inaccurate information.

The report should be discarded.

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* 3. The Fourth Circuit distinguished between the Consumer Groups’ goal of gaining access to the record and publication of the report of harm to the CPSC website. Stated differently, the Fourth Circuit held that Company Doe’s right to pursue an injunction in secret is distinct from its right to have material enjoined from publication. Do you:

Agree with the Fourth Circuit. The rights are entirely distinct.

Disagree with the Fourth Circuit. The distinction is semantic only. Unsealing the record obviates the remedy of the injunction.

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* 4. While, at this point, it is unclear what the full record contains, it is safe to say that, at a minimum, it containsthe report the CPSC sought to publish. Under this assumption, with which statement do you agree:

Publication is publication. Company Doe was deprived of its statutory right to prevent publication of materially inaccurate information.

Publication to the judicial record is completely different than publication to the CPSC website. Company Doe was not deprived of any statutory rights.

Publication is publication, but Company Doe was not deprived of any statutory right as it successfully obtained an injunction.

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* 5. In your opinion, does publicly litigating a claim that the CPSC should not publish a report of harm damage a company’s reputation?

Yes

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* 6. In a concurring opinion, Senior Circuit Judge Hamilton argued that “common sense” decrees that the company would harmed, it would be naïve to think otherwise, and that had concrete proof of harm been submitted or considered by the District Court, the Fourth Circuit’s decision would have been different. Do you agree?

Yes

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* 7. The majority opinion noted held that “[a]n unsupported claim of reputational harm falls short of a compelling interest sufficient to overcome the strong First Amendment presumptive right of public access.” Subsequently and similarly, the court ruled, “[m]easured against the heightened public interests presented n this case, Company Doe has failed to demonstrate any interest sufficient to defeat the public’s First Amendment right of access and to justify continued sealing.”

Has the Fourth Circuit left the door open for “reputational harm” challenges that are supported by expert opinions of economic harm?

Yes

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* 8. Will the Fourth Circuit’s act as a strong precedent that will chill the bringing of challenges to the CPSC’s intentions of publishing similar reports of harm?

Yes

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* 9. Should Fourth Circuit have remanded with instructions to consider evidence pertaining to the likelihood ofreputational and financial harm?

Yes

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* 10. Do you believe this or a similar challenge will wind up before the Supreme Court?

Yes