An anti-secrecy law aimed at keeping consumers safe
What you don’t know really can kill you. As unconscionable as it seems, sometimes lawsuits are settled on the condition that an enduring danger to public health and safety is kept concealed from you.
Eleven other states expressly prohibit such secrecy deals in legal settlements.
Why are Californians left vulnerable? It’s not because state lawmakers haven’t been pushed by consumer groups to address the issue — or been confronted with real-life examples of where protective orders or secrecy agreements kept consumers from knowing about defective products that led to serious injuries and deaths.
The barrier proved to be our state Legislature’s unwillingness in 2001 and 2005 to stand up to powerful interests that were determined to seal evidence from public view. Each time, too many cowered when it counted on the final Assembly vote.
The issue is back in the form of AB889 by Assemblyman Mark Stone, D-Santa Cruz, now armed with a thick file of additional cases in which lives could have been saved if only consumers had been given earlier warning of serious hazards.
Richard Zitrin, a legal ethics expert at the UC Hastings College of the Law, has cataloged details of dangers that were at one time shielded by court-approved secrecy agreements. He scoffed at the corporate lobbyists’ claim that the anti-secrecy law would force their clients to reveal trade secrets.
“How is a product defect a trade secret?” Stone said. “A trade secret is something that offers a competitive advantage.”
Or as Zitrin put it, “Nobody’s going to copy something that’s going to kill people.”
Stone noted that evidence not related to a hazardous defect — and details such as the dollar amount of a settlement — could still be sealed by the courts.
Among the egregious examples of known dangers hidden by secrecy agreements:
n Belt separation in defective Cooper Tires resulted in driver loss of control, contributing to at least 362 deaths. Researchers have uncovered more than 500 settlements involving defective Cooper Tires, many with secrecy pacts, according to the legislative analysis.
n Faulty trigger mechanisms in Remington rifles sometimes caused the weapon to fire without pulling the trigger. The death of 9-year-old by an inadvertent rifle firing led Montana to pass the Gus Barber Anti-Secrecy Act in 2005. The boy’s father had pushed for the legislation after discovering that Remington had been settling lawsuits with nondisclosure agreements.
n General Motors’ faulty ignition switches caused vehicles to suddenly accelerate, the power steering and brakes to shut down and the air bags to deactivate. At least 20 cases were settled before the defect was exposed to the public in 2014. Zitrin’s research found that the defect was a factor in at least 174 deaths.
Other examples of dangers concealed by secrecy deals include fertilizers that caused plant explosions, ill-designed table saws that resulted in arm amputations, pharmaceuticals with known but undisclosed side effects, air bags that spewed shrapnel when activated, window shade cords that strangle and car seat-backs that collapse in a rear-end collision.
A coalition of business groups opposed to AB889 contend that it “unfairly leverages business to either settle lawsuits that allege a danger to the public health and safety or disclose confidential information during civil litigation.”