In an effort to improve transparency following litigation on defective products, the House last week introduced the Sunshine in Litigation Act (H.R. 5884).

Settlements of product safety lawsuits sometimes include secrecy agreements in which the parties agree not to disclose information relating to a product defect that may implicate public health and safety. Introduced by Reps. Robert Wexler (D-FL) and Jerrold Nadler (D-NY), H.R. 5884 restricts the authority of federal judges to approve settlements that include such restrictive measures.

"Too often, American consumers are left in the dark about a defective toy that has resulted in the injury of a child, or an automobile part that has led to deadly car accidents," stated Wexler.

The Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights held a hearing in December 2007 on the Sunshine in Litigation Act (S. 2449), introduced by Sens. Herb Kohl (D-WI) and Lindsey Graham (R-SC). At the hearing, Judge Joseph F. Anderson of the United States District Court for the District of South Carolina said, "Many judges all too often acquiesce in the demands of court-ordered secrecy."

Some predict that if judges are unable to approve settlements that include secrecy agreements, it will result in more cases going to trial and flooding the already overburdened court system. However, Judge Anderson, who presides in the only district to adopt a rule restricting court-ordered secrecy, reported that contrary to expectations, there have actually been fewer such cases going to trial in the five years following the rule's enactment than in the five years before.

The other concern raised against the Sunshine in Litigation Act is that it could violate private agreements reached between parties. The litigating parties should be at liberty to reach an agreement that settles their private matter. Moreover, the disclosure of information may also violate the parties' privacy.

Public interest advocates reply that, though the dispute may be a private matter, many have large public consequences affecting public health and safety. Many of these product defect and liability cases involve goods that are consumed by millions of Americans, and if the agreements would deny the public information about faulty products, as it was with Firestone tires, silicon breast implants, or toys from China, the public's right to know about potential harm outweighs the rights of private litigants to reach an agreement. Moreover, provisions to protect personal privacy and confidentiality are included in the bills.

The House and Senate bills revise the Federal Rules of Civil Procedure to require a showing that the public interest in the disclosure of information is either met or outweighed by specific concerns of privacy and confidentiality in order to allow the inclusion of nondisclosure agreements about product defect information in any settlements.