Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, December 26, 2013

Posner on Appellate Motions to Seal Settlement Agreements

Today, Seventh Circuit Judge Richard A. Posner denied a pair of motions seeking to seal settlement agreements. It is rare for a decision on an appellate motion to get much attention, but this one is worth a read. It discusses the general premise of open proceedings and the theoretical arguments for and against sealing settlement agreements. Ultimately though, Judge Posner ruled against sealing either settlement agreement. Locked FileIn one case, Goesel v. Boley International Ltd., Judge Posner found that the issue on appeal, modification of the settlement agreement by the district judge, would be obscured by sealing the agreement and, morever, "no good reason—in fact no reason at all—has been given for thinking that concealment of the information would serve some social purpose." In the second case, Massuda v. Panda Express, Inc., the underlying settlement was so heavily redacted, even the in the record below, that is seems the district judge wasn't privy the details. Judge Posner expressed considerable confusion about the appellees' half-hearted attempt to conceal a document already devoid of detail, particularly given that it was publicly filed as part of their appendix.

At the trial level, parties can privately resolve civil litigation by settlement agreement and stipulated dismissal without making the details part of the court file. However, once a settlement agreement is made part of the public record, parties must overcome the presumption of public access to have or keep it sealed. While this does not seem to be a terribly strong presumption, Judge Posner's decision in the Goesel and Massuda cases serves to remind advocates that half-hearted, unsupported, or self-defeating requests will not suffice.

Hat tip: How Appealing / Image: Laurel Russwurm

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