Today, Congressman Jerrold Nadler (NY-10), Ranking Member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet and senior member of the House Transportation and Infrastructure Committee, re-introduced the Sunshine in Litigation Act. The legislation would prevent companies from concealing evidence of wrongdoing that puts the public health at risk, protecting consumers from dangerous safety flaws that are often hidden from the public through court-ordered secrecy.
“A company should not be allowed to use courtroom settlements to keep lifesaving information hidden from the public,” said Congressman Nadler. “Current federal court rules make it too easy for defendants subject to lawsuits to protect their profits over saving lives. This is flat out wrong. It represents an abuse of the justice system and an abuse of the public trust and must be set right.”
The danger of concealing essential safety information was seen most recently during last year's recall of General Motors vehicles due to faulty ignition switches. GM was found to have settled cases related to the switches as far back as 2005, but its secret settlements hid information about these defective products from the public and from regulators. Consequently, action could not be taken to improve the safety of these products and just this week, GM approved the 100th death claim related to these ignition switches.
To approve certain protective orders or settlement agreements, the Sunshine in Litigation Act would require a court to find that provisions which restrict information disclosure would not affect that which is “relevant to the protection of public health or safety.” If the provisions in question would shield such information, to approve the protective orders or settlement agreement the court would have to find that there is “a specific and substantial interest” in keeping said information secret that outweighs the public interest and that the order in question not be broader than necessary. The bill also would prevent courts from enforcing provisions of settlement agreements which bar the disclosure of certain terms or discussion of aspects in the case relating to public health and safety unless, similarly, a court finds the interest in keeping the information secret outweighs the public’s need to know. These rules would apply only when the operative pleadings make clear a case involves health and safety issues.
During consideration in the House Judiciary Committee today of the FACT Act, H.R. 526, Congressman Nadler offered an amendment modeled on the Sunshine in Litigation Act. The FACT Act would impose burdensome reporting requirements on trusts established by bankrupt companies to compensate asbestos victims that would reduce the compensation available to these victims and violate their privacy. Many of the companies that establish such trusts have entered into secret settlements that hid information about the damage caused by their products. Rep. Nadler's amendment would require asbestos defendants seeking information from such a trust to allow disclosure of the health and safety effects of their products. The amendment was defeated on a party-line vote of 6-16, with all Republicans voting against it.
In the 113th Congress, the Sunshine in Litigation Act garnered the support of the Alliance for Justice, the Center for Justice and Democracy, the Consumer Federation of America, the Consumers Union, Kids in Danger, the National Association of Consumer Advocates, the National Consumers League, Public Citizen, and the U.S. Public Interest Research Group.
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