District Of Columbia 2023-2024 Regular Session

District Of Columbia Council Bill B25-0429 Compare Versions

Only one version of the bill is available at this time.

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12	12	July 13, 2023
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14	14	Nyasha Smith, Secretary
15	15	Council of the District of Columbia
16	16	1350 Pennsylvania Avenue, NW
17	17	Washington, DC 20004
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19	19	Dear Secretary Smith:
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21	21	Today, along with Chairman Phil Mendelson and Councilmembers Anita Bonds, Vincent C. Gray,
22	22	Christina Henderson, Janeese Lewis George, and Robert C. White, Jr., I am introducing the
23	23	“Sunshine in Litigation Act of 2023.” Please find enclosed a signed copy of the legislation.
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25	25	Over the years, big business and corporate lawyers have been successful at using sealed
26	26	settlement agreements or protective orders to hide evidence that they compromised consumer
27	27	health and safety. Beginning after the mass asbestos settlements of the 1970s, the corporate
28	28	defense bar turned to protective orders, which are orders from a judge that prevent the
29	29	disclosure of sensitive information except to certain individuals under certain circumstances, as
30	30	a method to conceal and prevent evidence that a company sacrificed its customers’ health and
31	31	safety to maximize corporate profits from getting into the hands of consumers. These protective
32	32	orders have required judges to seal evidence relevant to protecting public health and safety in
33	33	dozens of the biggest defective product cases in federal court over the past 20 years.
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35	35	These legal maneuvers have allowed drug makers and pharmaceutical companies to market
36	36	opioids and other painkillers as safe during the opioid epidemic, car manufacturers to continue
37	37	to sell cars that were lethal in crashes and rollovers, and gunmakers to knowingly sell firearms
38	38	with defects that have injured, maimed, or killed people. While companies do have an interest in
39	39	making sure that certain information is not released to the public, such as trade secrets and
40	40	intellectual property, hiding information that can inform the public about risks to health and
41	41	safety runs contrary to our principles of open courtrooms and equal justice.
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43	43	This legislation would protect the public from potential health and safety risks that could be
44	44	concealed by court orders. It would prohibit parties and courts from keeping information related
45	45	to a defective product or environmental condition hidden through the use of sealed settlement 2
46	46	agreements or protective orders. It would, however, preserve courts’ ability to protect important
47	47	business records that are not relevant to the public interest, like personal, medical, and financial
48	48	information or a company’s trade secrets.
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50	50	Several other states, including Virginia, Arkansas, Florida, Louisiana, and Washington, have
51	51	already adopted similar laws, and California has legislation pending. Congress is also considering
52	52	a bill on the topic. Notably, according to the consumer advocacy organization Public Justice, there
53	53	is no evidence that these anti-secrecy laws have discouraged settlements, exposed proprietary
54	54	interests or trade secrets, increased litigation costs for parties, or imposed burdens on the courts.
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56	56	Please feel free to reach out to me or my Legislative Director, Antonio Nunes, with any questions
57	57	or for additional information.
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59	59	Sincerely,
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61	61	Charles Allen, Ward 6 Councilmember
62	62	Chairperson, Committee on Transportation & the Environment
63	63	Vice Chair, Metropolitan Washington Council of Governments
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65	65	___________________________ ______________________________ 1
66	66	Chairman Phil Mendelson Councilmember Charles Allen 2
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69	69	___________________________ ______________________________ 5
70	70	Councilmember Anita Bonds Councilmember Vincent C. Gray 6
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73	73	______________________________ ___________________________ 9
74	74	Councilmember Christina Henderson Councilmember Janeese Lewis George 10
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77	77	___________________________ 13
78	78	Councilmember Robert C. White, Jr. 14
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82	82	A BILL 18
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84	84	________ 20
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87	87	IN THE COUNCIL OF THE DISTRICT OF COLUMBIA 23
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89	89	_________________ 25
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92	92	To prohibit confidentiality agreements and protective orders in civil actions involving defective 28
93	93	products or environmental conditions that are likely to cause significant harm, and to 29
94	94	allow members of the public to challenge agreements and orders that violate this act. 30
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96	96	BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMB IA, That this 32
97	97	act may be cited as the “Sunshine in Litigation Act of 2023”. 33
98	98	Sec. 2. Prohibition on confidentiality agreements and protective orders in civil actions 34
99	99	involving defective products or environmental conditions that are likely to cause significant 35
100	100	harm. 36
101	101	(a) For agreements made after the effective date of this act, except as authorized by 37
102	102	subsection (c) of this section, a provision within, or an agreement made in connection with, a 38
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104	104	settlement agreement in a covered civil action that purports to restrict the disclosure of factual 39
105	105	information related to the action is against public policy, is void, and shall not be enforced. 40
106	106	(b) Following the effective date of this act, the court shall not enter any order, by 41
107	107	stipulation or otherwise, that has the effect of restricting the public disclosure of a public hazard 42
108	108	at issue in a covered civil action. 43
109	109	(c) Subsections (a) and (b) of this section shall not preclude the court from restricting the 44
110	110	public disclosure of any of the following information; provided, that the court shall restrict the 45
111	111	disclosure of no more records than necessary: 46
112	112	(1) Personal medical information, personal financial information, or other 47
113	113	personally identifiable information commonly treated as confidential by the court; 48
114	114	(2) The amount of a settlement; or 49
115	115	(3) Trade secrets. 50
116	116	(d)(1) Any person shall have standing to challenge a provision, agreement, or order that 51
117	117	violates subsections (a) or (b) of this section by bringing a motion to intervene as of right in the 52
118	118	Superior Court at any time before or after judgment. Such individual need not prove any injury 53
119	119	separate and apart from injury to the rights of the general public to access court records. 54
120	120	(2) In an action under this subsection, the court shall have discretion to award to a 55
121	121	prevailing intervenor costs and reasonable attorneys’ fees. 56
122	122	(e) For the purposes of this section, the term: 57
123	123	(1) “Covered civil action” means a civil action the factual foundation for which 58
124	124	involves, or during the pendency of which discoverable information identifies, a public hazard. 59
125	125	(2) “Public hazard” means a defective product, or an environmental condition, 60
126	126	that has caused or is likely to cause significant or substantial bodily injury, illness, or death. 61
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128	128	(3) “Trade secret” has the same meaning as set forth in D.C. Official Code § 36-62
129	129	401(4). 63
130	130	(f) There shall be a presumption in favor of the public disclosure of a public hazard 64
131	131	identified in a covered civil action except as identified in subsection (c) of this section. 65
132	132	Sec. 3. Fiscal impact statement. 66
133	133	The Council adopts the fiscal impact statement in the committee report as the fiscal 67
134	134	impact statement required by section 4a of the General Legislative Procedures Act of 1975, 68
135	135	approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a). 69
136	136	Sec. 4. Effective date. 70
137	137	This act shall take effect following approval by the Mayor (or in the event of veto by the 71
138	138	Mayor, action by the Council to override the veto), a 30-day period of congressional review as 72
139	139	provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 73
140	140	24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of 74
141	141	Columbia Register. 75