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