Bank of America National Trust and Savings Association, a National Banking Association v. Hotel Rittenhouse Associates, a Pennsylvania Limited Partnership, Jack L. Wolgin, Jack L. Wolgin Associates, Inc., a Pennsylvania Corporation, Both General Partners of Hotel Rittenhouse Associates, and Jack L. Wolgin and Muriel Wolgin, Husband and Wife v. Nilsi, N v. Abohar Investments, N v. Khalid Y. Al-Marzook, Jassim Y. Al- Marzook, and Faisal Y. Al-Marzook. Appeal of Fab III Concrete Corporation. Fab III Concrete Corporation v. Bank of America National Trust and Savings Association

In this appeal, we are faced with an issue that this court has confronted with increasing frequency in recent years: under what circumstances documents filed in the district court may be sealed from public access.

The dispute that forms the basis for this case arose out of the construction of the Hotel Rittenhouse in Philadelphia, which is not yet completed. The factual record before us is spare. There appears to be little dispute about the relevant historical facts, which we present briefly from the appellant's perspective.

In 1981, the Bank of America (the Bank), contracted with Hotel Rittenhouse Associates (HRA) and other developers to finance the construction of the hotel. FAB III, the appellant here, was the concrete contractor on the project.

In June 1983, the Bank filed suit against HRA, its partners and some involved individuals (referred to collectively as HRA) in the United States District Court for the Eastern District of Pennsylvania to foreclose on the Hotel Rittenhouse property and to collect on a loan. HRA counterclaimed on numerous state and federal law grounds.1

In April 1984, FAB III filed suit in federal court against the Bank, but not against HRA, seeking over $800,000 on the basis of an alleged assurance by the Bank of direct payment for FAB III's HRA work. The Bank moved to dismiss on the ground that HRA was an indispensable party and that joinder of HRA would destroy diversity of citizenship. Apparently, this motion has never been decided.

The Bank-HRA action proceeded to trial in January 1985. Before the case was sent to the jury, the parties reached a settlement and the jury was discharged. At the parties' request, the settlement agreement was filed under seal in the district court. Prior to this time, all proceedings in the litigation had been open to the public.

Shortly thereafter, there was a disagreement between the Bank and HRA about the settlement. On March 11, 1985, HRA filed a "Motion to Enforce Settlement Agreement." The Bank responded the next day with a similar motion. A series of documents regarding this dispute was filed under seal in the district court. According to the appellees' brief, release of the documents filed to enforce the settlement would reveal the contents of the settlement agreement.

In March and April 1985, the district court rendered a series of orders in the Bank-HRA litigation which apparently were pursuant to the motions asking it to enforce the settlement agreement. On March 25, the court gave judgment for the Bank against HRA for over 38 million dollars on one count of its complaint and dismissed all other counts of the Bank's claim and all of HRA's counterclaims. This judgment also ordered the Hotel Rittenhouse property sold at a Marshal's sale and set some of the terms of the sale. App. at 71a-73a. On April 12, the court filed another order setting the terms of payment for the Marshal's sale. The district court docket sheet also shows an entry on April 26 that "Order of Court is Filed Under Seal and Not to be Opened Until Further Order." The subject of this order is not otherwise explained but FAB III surmises that it refers to another part of the district court's judgment.

At about this time, FAB III began its efforts to obtain the settlement agreement and the documents filed in federal court to enforce the settlement. In April 1985, FAB III and other creditors of HRA met with the district court and requested it to unseal the documents. This request was denied without a written order.

In June 1985, FAB III moved to submit its dispute with the Bank to arbitration before the American Arbitration Association. The district court stayed the federal proceedings while the arbitration proceeded. The arbitration is still pending.

On July 1, 1985, FAB III filed a complaint in state court against the Bank and HRA charging them with a continuing conspiracy to deny it money owed for its work on the Hotel Rittenhouse project. In that complaint, FAB III charges that as part of the conspiracy "the Bank and the Wolgin Group [HRA] agreed to seal certain portions of the otherwise public proceedings in the federal court action." App. at 15a.

Shortly thereafter, FAB III filed a formal motion with the district court to unseal the settlement documents. Following what FAB III's brief characterizes as "an informal conference in chambers," see Brief of Appellant at 9, the court denied the motion to unseal. In a one-paragraph order, the court stated that it had weighed "the public interest in access to judicial records," as well as FAB III's interest in access to the settlement, against "the public and private interests in settling disputes" and found that the latter interest was paramount. See App. at 89a-90a. FAB III appeals the denial of its motion to unseal.2II.

As a preliminary matter, we must determine whether the court's order denied access only to the settlement agreement or whether it also reaffirmed the earlier order sealing the motions and related documents. The written motion filed by FAB III was "to unseal docket and court records," and alleged that "[n]o public interests are served by the sealing of any portions of this Court's records herein." App. at 9a, 10a. In their opposing memorandum filed in the district court, HRA and the Bank treated FAB III's motion to unseal as directed to the motions to enforce the settlement agreement and related papers, as well as the settlement agreement itself. For example, that memorandum argued, "the only material not open to the public is the parties' settlement agreement and certain motions and briefs filed after settlement regarding interpretation of the agreement which disclosed its terms." App. at 26a. However, the district court's order of November 7, 1985 described the motion of FAB III as one "to unseal the agreement of settlement" and denied "FAB III's motion to unseal the agreement of settlement." The district court may not have distinguished between the motions to enforce the settlement agreement and the agreement itself because, as the brief of appellees HRA and Bank concedes, the "several motions and briefs ... filed [in the district court] requesting the Court to enforce the settlement agreement ... disclosed the terms of the settlement agreement." Brief of Appellees at 5.

The briefs for all parties on appeal have treated the district court's order as denying access to the motions to enforce the agreement, as well as to the settlement agreement itself. Moreover, the appellees' brief states the issue for review as, "Whether the District Court abused its discretion in denying a motion to unseal a confidential settlement agreement and certain post-settlement motions, briefs and orders, which disclose the terms of the settlement agreement." Id. at 1 (emphasis added). Therefore, we regard as disingenuous the belated contention by counsel for the appellees, expressed at oral argument, that the district court's order applies only to the settlement agreement and leaves unresolved FAB III's motion to unseal the motion papers.

In the first place, the district court's order denied FAB III's motion in its entirety. In the second place, the appellees never suggested in this court that because part of the motion remained pending, the matter was not ripe for disposition by this court. We will construe the district court's order as the parties have construed it in their written position before this court and as the district court apparently intended it, i.e., as a refusal to unseal not only the settlement agreement that was filed of record in the district court in civil action No. 83-2809 but also the motion papers filed of record in that court seeking to enforce the settlement agreement, which papers disclose all or part of the terms of that settlement agreement.

FAB III bases its claim for access to the documents filed in the district court on the common law right of access, rather than on the First Amendment. The right of the public to inspect and copy judicial records antedates the Constitution. Criden I, 648 F.2d at 819 (citing United States v. Mitchell, 551 F.2d 1252, 1260 (D.C.Cir.1976)).

The Supreme Court reaffirmed the common law right of access to judicial records and proceedings in Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), where it held that there was a presumption in favor of access to "public records and documents, including judicial records and documents." Id. at 597, 98 S.Ct. at 1312 (footnotes omitted); see also id. at 602, 98 S.Ct. at 1314.

This court first considered that right of access in Criden I, where we held that there was a "strong presumption" that the public and the media were entitled to access to tapes played during the criminal trial of two of the Abscam defendants. 648 F.2d at 823. See also United States v. Martin, 746 F.2d 964 (3d Cir.1984) (access to audiotapes introduced in evidence in criminal case governed by Criden I ). We have also held that the common law presumption of access encompasses as well all "civil trials and records." Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066-67 (3d Cir.1984). More recently, we held that "the common law right of access to judicial records enunciated in Criden I is fully applicable to transcripts of sidebar or chambers conferences in criminal cases at which evidentiary or other substantive rulings have been made." United States v. Smith, 787 F.2d 111, 115 (3d Cir.1986) (footnote omitted) (Smith II ).

Other opinions in this court have grounded access to court hearings on the First Amendment. In United States v. Criden, 675 F.2d 550 (3d Cir.1982) (Criden II ), we held that there is a First Amendment right of access to pretrial criminal proceedings. In Publicker, we explicitly based our holding that the press and the public could have access to a hearing in a civil proceeding and the transcript thereof on the First Amendment right of access as well as the common law, 733 F.2d at 1067-71.

It follows from our decisions in Criden I, Smith II, and Publicker that the common law presumption of access applies to motions filed in court proceedings and to the settlement agreement between HRA and the Bank which they filed and submitted to the district court for approval. Therefore, we need not decide whether such a right might also be grounded on the First Amendment, and decisions restricting access to other categories of records under a construction of the First Amendment are inapplicable here. See Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir.1986) (in banc) (investigative records of state environmental agency); First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467 (3d Cir.1986) (in banc) (records of judicial inquiry board).

HRA and the Bank argue that a settlement agreement is a nonpublic aspect of litigation that "may properly be sealed from strangers to the agreement." Brief of Appellees at 12. They rely on the Supreme Court's decision in Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). We find that case inapposite. In Seattle Times, the Court held that the First Amendment did not preclude the district court from entering a protective order limiting disclosure of the products of pretrial discovery. Id. at 37, 104 S.Ct. at 2209-10. Such discovery, however, which is ordinarily conducted in private, stands on a different footing than does a motion filed by a party seeking action by the court.

In United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir.1985) (Smith I ), we rejected the argument that under Seattle Times, the bill of particulars was like civil discovery to which there was no right of access. We held that a bill of particulars is more akin to an indictment, that public access to an indictment is protected by the First Amendment and the common law right of access to the judicial process, and that denial of access must be justified by overriding interests. Similarly, unlike the civil discovery materials at issue in Seattle Times, a motion or a settlement agreement filed with the court is a public component of a civil trial. As in the cases involving trial rulings or evidence admitted, the court's approval of a settlement or action on a motion are matters which the public has a right to know about and evaluate.3

Just as the right of access is firmly entrenched, so also is the correlative principle that the right of access, whether grounded on the common law or the First Amendment, is not absolute. Our opinions may be read to suggest that there are somewhat different standards, depending on whether access is sought under the common law presumption or under the First Amendment. In Publicker, we required the party opposing access to show " 'an overriding interest based on findings that closure is narrowly tailored to serve that interest.' " 733 F.2d at 1073. This standard was taken from Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984), a First Amendment case. In Criden I, we held the strong common law presumption of access must be balanced against the factors militating against access. 648 F.2d at 818. See also United States v. Criden, 681 F.2d 919, 921 (3d Cir.1982) (Criden III ). The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.

Because we base our decision in this case on the common law right of access, we will apply the balancing approach articulated in Criden I and Criden III, and do not reach the issue whether that standard differs from that to be applied under the First Amendment. See Smith I, 776 F.2d at 1112.

The district court was cognizant that its decision required it to balance the factors favoring secrecy against the common law presumption of access. In denying FAB III's motion for access to the settlement documents, the court held that the "public and private interests in settling disputes" outweighed the "public interest in access to judicial records" and FAB III's private interest in knowing the terms of the settlement. App. at 89a-90a.

The balancing of the factors for and against access is a decision committed to the discretion of the district court, see Nixon v. Warner Communications, Inc., 435 U.S. at 599, 98 S.Ct. at 1312, although it is not generally accorded the narrow review reserved for discretionary decisions based on first-hand observations. Criden I, 648 F.2d at 818. Thus, the issue before us is whether the district court abused its discretion in holding that the judicial policy of promoting the settlement of litigation justifies the denial of public access to records and proceedings to enforce such settlements.

We acknowledge the strong public interest in encouraging settlement of private litigation. Settlements save the parties the substantial cost of litigation and conserve the limited resources of the judiciary. In order to encourage the compromise and settlement of disputes, evidence of settlements or offers of settlement are ordinarily not admissible in federal proceedings. See Fed.R.Evid. 408 and advisory committee note thereto; Fed.R.Civ.P. 68. Thus, it is likely that had HRA and the Bank chosen to settle and file a voluntary stipulation of dismissal, as provided in Rule 41(a)(1) of the Federal Rules of Civil Procedure, they would have been able to prevent public, and even FAB III's, access to these papers. That is not the course the parties chose.

Instead, HRA and the Bank filed their settlement agreement in the district court, because, as they frankly concede, they anticipated that they would disagree on the terms, and would want recourse to the court. That, of course, is precisely what occurred.

Judge Garth has written an interesting and vigorous essay about the importance of settlement to the overburdened court systems of this country. Since the proposition is self-evident, it is intended to, and undoubtedly will, touch a sympathetic chord in the hearts of all judges who, after all, bear much of the burden of the litigation explosion to which Judge Garth refers.

Noteworthy, however, is the fact that Judge Garth practically ignores the relevant posture of the case before us. This is not like FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir.1982), which he relies on, where there was an effort to unseal a settlement agreement made two years earlier. Here, there were motions filed and orders entered that were kept secret, in direct contravention of the open access to judicial records that the common law protects. FAB III began its efforts to unseal the court papers almost immediately after these court documents were filed and sealed.

In the name of encouraging settlements, Judge Garth would have us countenance what are essentially secret judicial proceedings. We cannot permit the expediency of the moment to overturn centuries of tradition of open access to court documents and orders.

Having undertaken to utilize the judicial process to interpret the settlement and to enforce it, the parties are no longer entitled to invoke the confidentiality ordinarily accorded settlement agreements. Once a settlement is filed in the district court, it becomes a judicial record, and subject to the access accorded such records.

Such public access serves several of the important interests we identified in our earlier cases. First, it promotes "informed discussion of governmental affairs by providing the public with [a] more complete understanding of the judicial system" and the "public perception of fairness which can be achieved only by permitting full public view of the proceedings." See Smith II, 787 F.2d at 114 (citing Criden II, 675 F.2d at 557). Disclosure of settlement documents serves as a check on the integrity of the judicial process. See Smith II, 787 F.2d at 114; Wilson v. American Motors Corp., 759 F.2d 1568, 1571 (11th Cir.1985). Although FAB III does not allege that the district court engaged in any impropriety, as a general proposition access assures "that the courts are fairly run and judges are honest". Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.1980). The applicability and importance of these interests are not lessened because they are asserted by a private party to advance its own interests in pursuing its lawsuits against the Bank and HRA.

In reaching its conclusion that access should be denied, the district court relied on the decision in In re Franklin National Bank Securities Litigation, 92 F.R.D. 468 (E.D.N.Y.1981), aff'd sub nom. FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir.1982), where the court refused to set aside a protective order that preserved the confidentiality of a settlement of complex multidistrict litigation arising out of the insolvency of one of the nation's largest banks. Two years after the settlement, a public interest group and its lawyer sought to modify the confidentiality order, which the district court declined to do. It appears that in their unsuccessful appeal, the appellants relied on the Freedom of Information Act rather than on the common law right of access to judicial records.

In any event, both the district and circuit court opinion stressed the magnitude of the litigation that had been settled and the public interest involved. The FDIC had sued a multitude of parties, including Ernst & Ernst, one of the bank's accountants, to recover the funds the FDIC had paid to the bank's depositors. "The litigation was protracted. During the five years after Franklin National Bank's failure, millions of documents were collected; more than a hundred thousand pages of depositions were taken, and millions of dollars in legal fees were incurred." FDIC v. Ernst & Ernst, 677 F.2d 230, 231 (2d Cir.1982). On the first day of what the district court believed would be "a bitterly contested trial lasting at least six months," In re Franklin National Bank Litigation, 92 F.R.D. at 469, Ernst & Ernst agreed to settle with the FDIC, provided the settlement would be kept confidential. The district court noted the litigation had already engendered 11 reported opinions. "Former directors and officers, classes of shareholders, governmental agencies and accountants were the adversaries. Had the trial continued, many millions of dollars more would have been expended in legal fees, a trial part would have been heavily engaged for a long period, more appeals were inevitable and jurors would have been inconvenienced." Id. at 470.

We need not decide whether we would regard a comparable showing as sufficing to override the strong presumption of access. We leave that issue open because no such showing has been made here. The settlement agreement between HRA and the Bank pertained to a single dispute between a small group of parties, unlike the multitude of parties involved in Ernst & Ernst. Moreover, the district court did not rely on any particularized showing of the need for continued secrecy, as asserted in Ernst & Ernst, but instead only on the general interest in encouraging settlement. As we have held, that is not enough. Even if we were to assume that some settlements would not be effectuated if their confidentiality was not assured, the generalized interest in encouraging settlements does not rise to the level of interests that we have recognized may outweigh the public's common law right of access. See Criden I, 648 F.2d at 829 (evidence which may inflict "unnecessary and intensified pain on third parties who the court reasonably finds are entitled to such protection" may be protected); Smith I, 776 F.2d at 1113 (access denied to sealed bill of particulars because of "risk of serious injury to innocent third parties").4

We conclude that the district court abused its discretion in denying FAB III's motion to unseal the motions and settlement agreement papers. We will reverse the order of the district court and remand so that the court may enter an order in accordance with this opinion. We will also dismiss the appeal in No. 85-1754. See note 2, supra.

In this case, the Bank and HRA, the developer, settled a financing dispute after a court action had been commenced. At the request of both parties, their settlement agreement was sealed by the court in February 1985.

In July 1985, some five months later, FAB III, a contractor who had furnished services to HRA, without having intervened in the Bank-HRA litigation, applied to the district court to unseal the Bank-HRA agreement. The district court denied FAB's motion and refused to unseal the agreement holding that FAB's claimed interest in access to the sealed information did not outweigh the public and private interests in favor of settling disputes.

The majority today, totally disregarding the difference between the sealing and the unsealing of an agreement, in an unprecedented decision, holds that the interest in settlement may not outweigh the public's right of access even in private litigation. I cannot agree, and therefore, I dissent.

I believe that the majority misconstrues the issue now before the court. The majority opinion claims the issue before us to be: " ... under what circumstances [may] documents filed in the district court ... be sealed from public access." Maj.Op., at 340. See also Maj.Op., at 345. However, that is not the issue this case presents. The question before us is not whether material which is already public should now be sealed; the question on this appeal is whether a privately negotiated settlement agreement, agreed to and entered into a court record only on condition that it remain secret, should now be unsealed because of the district court's supposed abuse of discretion in permitting it to be filed under seal.1

The resolution of the correct issue raised here dictates a different approach than the majority has taken: an approach that would protect the reliance interests of the parties absent exceptional circumstances. I therefore disagree with the majority's decision to order the Bank-HRA settlement agreement terms unsealed.

Moreover, in reviewing the district court's denial of FAB's motion to unseal the Bank-HRA agreement, the majority adopts, for all practical purposes, a per se rule that the interest in settling cases can never outweigh the public's right of access and thereby justify a court in sealing the terms of a voluntary settlement. The majority opinion holds " ... the generalized interest in encouraging settlements does not rise to the level of interests that we have recognized may outweigh the public's common law right of access. See Criden I, 648 F.2d at 829 ... [and] Smith I, 776 F.2d at 1113 ..." Maj.Op., at 346. The majority's holding on this point is not compelled by any precedent (certainly not by Criden I or Smith I, which are the only authorities cited for that extraordinary proposition), and it utterly ignores the importance of, and the practical realities surrounding, the process of settling lawsuits.

Because I believe that the public and private interest in encouraging settlement is entitled to significant weight, and because the majority's analysis and holding cannot help but impair seriously the efficacy of judicial efforts to encourage settlement of many cases, I cannot join in this result. For this reason, too, I respectfully dissent.

As the majority recognizes, in deciding whether the common law right of access compels disclosure of materials before the court, the district court must "weigh[ ] the interests advanced by the parties in light of the public interest and the duty of the courts." Nixon v. Warner Communications, 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570 (1978). This court has held that the common law right of access creates a presumption of access to all judicial records and documents. United States v. Smith, 776 F.2d 1104, 1110 (3d Cir.1985); United States v. Martin, 746 F.2d 964, 968 (3d Cir.1984). I therefore agree that, as a general matter, the common law right of access applies to settlement agreements when such agreements are filed with the court and become a part of the public record.

However, a settlement agreement that has never been disclosed to the public, but which was only entered into the record by the parties with the understanding that it would remain secret, presents a situation different from any situation that this court has addressed before. Although a presumption of access certainly arises when a court seals the transcript of a sidebar conference that has already taken place on the record in open court, United States v. Smith, 787 F.2d 111, 112 (3d Cir.1986), or when a party seeks access to material already entered into evidence and provided to the jury, United States v. Criden, 648 F.2d 814, 815 (3d Cir.1981), this case involves material and information that was never public, giving rise to a new and different factor: the reliance of the parties on the initial and continuing secrecy of the settlement agreement.

Although this court has not apparently addressed this precise situation, the Second Circuit has held that, "[o]nce a confidentiality order has been entered and relied upon, it can only be modified if an 'extraordinary circumstance' or 'compelling need' warrants the requested modification." FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir.1982). The Second Circuit therefore affirmed the denial of a motion to lift a protective order sealing a settlement agreement.2 The Second Circuit recently reaffirmed its holding on this point. Palmieri v. State of New York, 779 F.2d 861, 864-65 (2d Cir.1985).

The Ernst & Ernst case, while not controlling in this court, presents what I regard as a sensible standard and a sensible result. Although the common law right of access must be given due regard, a court cannot operate in a vacuum. To apply mechanistically the same test no matter what the factual circumstances, is to risk doing injustice to parties before the court.

Therefore, I agree that when a document or item of evidence has been entered into the public record without any reliance on secrecy, the interests of the parties seeking to seal or unseal such material must be weighed in light of a presumption of openness. However, when a document has only been entered into the record in reliance on an order keeping it under seal, and when time has passed and the parties have acted in reliance on the terms of that settlement remaining under seal, I would hold with the Second Circuit that the presumption must shift. While the public interest in openness of court records must nevertheless be factored into the balance, I think it is appropriate that a protective order or seal order which itself induced the production or entry of the contested material be presumed to remain in effect, absent a showing of an "extraordinary circumstance" or "compelling need" by a third party seeking to unseal that information.

Indeed, in denying FAB III's motion to unseal the settlement in this case, the district court cited Ernst & Ernst. See App. at 90. The majority opinion here also cites to Ernst & Ernst, but nowhere in its opinion does it address the Ernst & Ernst standard for unsealing.3

I would urge the adoption of the Ernst & Ernst standard and hold that where, as here, a settlement agreement has been filed with the court in reliance upon its being sealed, a third party who comes along after the fact bears the burden of establishing a "compelling need" or other "extraordinary circumstance" justifying access to the sealed agreement. I would further hold that because no such need or circumstance has been demonstrated, the burden has not been carried in this case, and the order of the district court should therefore be affirmed.

Even if I were to accept (which I do not) the majority's holding that the presumption in favor of access to judicial records still applies when a third party seeks to unseal a settlement agreement entered under seal and in reliance upon secrecy, I still could not agree to the majority's rule of law that the interest in settling cases cannot serve to rebut the presumption of access and therefore cannot justify the sealing of a settlement agreement. See Maj.Op., at 345-347. I believe that such a rule is completely out of touch with the reality of running a trial court docket--a reality with which our district court judges must wrestle every day--and if permitted to remain as the law of our circuit will wreak havoc with judicial efforts to encourage settlement of appropriate cases.

Although I believe the matter to be self-evident, the majority's out-of-hand rejection of the encouragement of settlement as a relevant factor in the decision to seal a settlement agreement requires me to explain both why I believe that fostering voluntary settlements of civil disputes is desirable and necessary, and why this goal will be unavoidably subverted by the majority's holding in this case.

It is impossible to gainsay that we have exper