### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2434

A NDREW G OESEL

, et al.

, Plaintiffs

,

v.

B OLEY I NTERNATIONAL (H.K.) L TD

., et al

., Defendants

‐ Appellees

.

A PPEAL OF : W ILLIAMS

, B AX & S ALTZMAN

, P.C.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 C 4595

— Milton I. Shadur

, Judge

.

____________________

No. 13

‐ 2818

F ORTUNEE M ASSUDA

, Plaintiff

‐ Appellant

,

v.

P ANDA E XPRESS

, I NC

., et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the2 Nos. 13

‐ 2434, 13

‐ 2818

Northern District of Illinois, Eastern Division.

No. 12 C 9683

— Ronald A. Guzmán

, Judge

.

____________________

S UBMITTED N OVEMBER 4, 2013

— D ECIDED D ECEMBER 26, 2013

____________________

Before P OSNER

, Circuit Judge

. As motions judge for the

week during which motions to seal the settlement agree

‐

ments in these two appeals were filed, I ordered the motions

consolidated and now rule on them.

In Goesel the parties agreed to settle a personal injury

suit, but because the suit was on behalf of a minor they were

required by Local Rule 17.1 of the Northern District of Illi

‐

nois to obtain the district judge’s approval of the settlement.

See Elustra v. Mineo

, 595 F.3d 699, 709–10 (7th Cir. 2010); cf.

Villalobos v. Cicero School District 99

, 841 N.E.2d 87, 93 (Ill.

App. 2005). The judge reduced the portion of the settlement

payable to the plaintiffs’ law firm, thus increasing the

amount of money to be received by the plaintiffs, and ap

‐ proved the settlement as revised. The appeal is by the law

firm and challenges the judge’s modification of the settle

‐

ment. The parties asked the district judge to seal the settle

‐

ment and he obliged. Before me is the law firm’s motion to

maintain under seal documents disclosing the amounts of

the settlement and of the lawyers’ costs and fees. The firm

emphasizes that the parties had agreed to keep the settle

‐

ment amount secret.

In Massuda

, a suit for breach of fiduciary duty, the district

judge dismissed most of the plaintiff’s claims on the ground

that they were derivative from claims in a previous suit that

the parties had settled. In so ruling the court relied on a re

‐Nos. 13

‐ 2434, 13

‐ 2818 3

dacted copy of the settlement agreement in the earlier suit,

filed under seal, that inked out almost all the terms of the

settlement other than the names of the parties and the nature

of the suit. The defendants want the redacted settlement

agreement kept under seal in this court as well.

“Documents that affect the disposition of federal litiga

‐

tion are presumptively open to public view.” In re Specht

, 622

F.3d 697, 701 (7th Cir. 2010); see Nixon v. Warner Communica

‐

tions, Inc.

, 435 U.S. 589, 597 (1978); Baxter International, Inc. v.

Abbott Laboratories

, 297 F.3d 544, 545 (7th Cir. 2002); LEAP

Systems, Inc. v. MoneyTrax, Inc.

, 638 F.3d 216, 220 (3d Cir.

2011). The reason for this right of public access to the judicial

record is to enable interested members of the public, includ

‐ ing lawyers, journalists, and government officials, to know

who’s using the courts, to understand judicial decisions, and

to monitor the judiciary’s performance of its duties. Nixon v.

Warner Communications, Inc.

, supra

, 435 U.S. at 597–98; Jessup

v. Luther

, 277 F.3d 926, 928 (7th Cir. 2002); Union Oil Co. v.

Leavell

, 220 F.3d 562, 568 (7th Cir. 2000); Citizens First Nat’l

Bank v. Cincinnati Ins. Co.

, 178 F.3d 943, 945–46 (7th Cir. 1999);

In re Continental Illinois Securities Litigation

, 732 F.2d 1302,

1308 (7th Cir. 1984); Poliquin v. Garden Way, Inc.

, 989 F.2d 527,

533 (1st Cir. 1993). As Holmes put it, “ It is desirable that the

trial of causes should take place under the public eye, not

because the controversies of one citizen with another are of

public concern, but because it is of the highest moment that

those who administer justice should always act under the

sense of public responsibility, and that every citizen should

be able to satisfy himself with his own eyes as to the mode in

which a public duty is performed.” Cowley v. Pulsifer

, 137

Mass. 392, 394 (1884).4 Nos. 13

‐ 2434, 13

‐ 2818

The presumption can be rebutted. A litigant is allowed,

for example, to conceal trade secrets, and, if there are com

‐ pelling reasons of personal privacy, to litigate under a pseu

‐ donym. See, e.g., Doe v. City of Chicago

, 360 F.3d 667, 669 (7th

Cir. 2004); Doe v. Blue Cross & Blue Shield United

, 112 F.3d 869,

872 (7th Cir. 1997); Sealed Plaintiff v. Sealed Defendant #1

, 537

F.3d 185, 188 (2d Cir. 2008). And the presumption of public

access “applies only to the materials that formed the basis of

the parties’ dispute and the district court’s resolution”; other

materials that may have crept into the record are not subject

to the presumption. Baxter International, Inc. v. Abbott Labora

‐

tories

, supra

, 297 F.3d at 548.

But what about concealment of terms in settlement

agreements? Settlements are ubiquitous in the legal system,

but most settlement agreements never show up in a judicial

record and so are not subject to the right of public access. Ei

‐

ther the agreement is made before a suit is filed (and so the

suit is never filed), or, if after, the parties file a stipulation of

dismissal and in that event they’re not required to make the

agreement a part of the court record. Fed. R. Civ. P.

41(a)(1)(ii); Kokkonen v. Guardian Life Ins. Co.

, 511 U.S. 375,

381–82 (1994); Jessup v. Luther

, supra

, 277 F.3d at 928. The par

‐

ties in Goesel didn’t have that option, because the local rule

cited above (the validity of which is not challenged) required

the court’s approval for the settlement to be valid.

If though it is part of the judicial record the settlement is

made without any court action (approval, disapproval, or

approval with modifications as in Goesel ) there will rarely be

a good reason to require that its terms be made public, be

‐

cause making them public would not reveal anything about

judicial activity. See LEAP Systems, Inc. v. MoneyTrax, Inc.

, su

‐Nos. 13

‐ 2434, 13

‐ 2818 5

pra

, 638 F.3d at 220 (“settlement agreements reached without

court assistance or intervention will not be treated as ‘judi

‐

cial records’ for purposes of the ‘right of access’ doctrine”);

Gambale v. Deutsche Bank AG

, 377 F.3d 133, 143 (2d Cir. 2004);

Pansy v. Borough of Stroudsburg

, 23 F.3d 772, 781 (3d Cir.

1994). One can imagine exceptions: cases in which the size,

large or small, of the settlement can be shown to be the result

of judicial doctrines that excessively (or so it might be

thought) favor one side in a class of disputes, or of rulings

made earlier in the case that by favoring one side or the oth

‐

er influenced the terms of settlement. But for the most part

settlement terms are of potential public interest only when

judicial approval of the terms is required, or they become an

issue in a subsequent lawsuit, or the settlement is sought to

be enforced. E.g., Herrnreiter v. Chicago Housing Authority

, 281

F.3d 634, 636–37 (7th Cir. 2002); Jessup v. Luther

, supra

, 277

F.3d at 929–30; Union Oil Co. v. Leavell

, supra

, 220 F.3d at 567;

Brown v. Advantage Engineering, Inc.

, 960 F.2d 1013, 1015–16

(11th Cir. 1992). In all such cases the presumption of a right

of public access to court documents should apply.

The net effects of compelled disclosure of settlement

terms are deeply uncertain. It’s been argued, on behalf of

disclosure, that settlement agreements, which often contain

terms going far beyond just a dollar amount, may conceal

safety hazards and other matters of acute public concern.

Richard A. Zitrin, “The Laudable South Carolina Court

Rules Must Be Broadened,” 55 S. Carolina L. Rev

. 883, 887–89

(2004). Usually, however, all that is sought to be concealed is

the size of the settlement. Robert Timothy Reagan et al.,

Sealed Settlement Agreements in Federal District Court 1, 8

(Federal Judicial Center 2004). Yet making that information

public can be defended as encouraging prelitigation settle

‐6 Nos. 13

‐ 2434, 13

‐ 2818

ments, since they are not open to public scrutiny, and thus as

economizing on litigation costs. Also and more important,

the more that is known about size (and other terms) of set

‐

tlements, the easier it should be for prospective litigants to

predict the likely outcome of their own litigation, and ability

to predict outcome should both foster and simplify settle

‐

ment. See Scott A. Moss, “Illuminating Secrecy: A New Eco

‐

nomic Analysis of Confidential Settlements,” 105 Mich. L.

Rev. 867, 898–903 (2007); Ben Depoorter, “Law in the Shadow

of Bargaining: The Feedback Effect of Civil Settlements,” 95

Cornell L. Rev. 957, 974 (2010). Disclosure of sizes of settle

‐

ments should also reduce the probability of lopsided settle

‐

ments—ones that the parties would have recognized were

too large or too small had they had information about set

‐

tlements in similar cases.

So there is an upside to disclosing settlement terms, but

also a downside. If parties know that the size of their settle

‐

ment will become public, their settlement negotiations are

likely to become more complicated. See id

. at 980–83; Note,

“Quality, Not Quantity: An Analysis of Confidential Settle

‐

ments and Litigants’ Economic Incentives,” 154 U. Pa. L. Rev.

433, 456 (2005). The defendant will fear that if the amount is

large, making it public will invite more suits against him,

while the plaintiff’s lawyer will fear that if the amount is

small he will find settlement negotiations in his next case

more difficult—the defendant in that case will have a greater

incentive to resist, hoping to negotiate as good a bargain as

he has observed in the settlement agreement that has be

‐

come public. The plaintiff’s lawyer who has agreed to a

modest settlement that the court has made public also may

fear that future clients, unimpressed by the amount he got inNos. 13

‐ 2434, 13

‐ 2818 7

settlement for a previous client, will desert him for tougher

‐ seeming negotiators.

Yet in the end this to and fro of competing considerations

may be of little importance. Depoorter in the article cited

above argues that most lawyers who negotiate settlements

are experienced and know from their own cases (and by

word

‐ of

‐ mouth from other lawyers) what the attainable

terms of settlement are likely to be in the class of cases that

they handle. So maybe there is little at stake in the decision

whether to allow or forbid parties to conceal the size of a set

‐

tlement.

Against a background of such uncertainty, it’s difficult to

imagine what arguments or evidence parties wanting to con

‐

ceal the amount or other terms of their settlement (apart

from terms that would reveal trade secrets or seriously com

‐ promise personal or institutional privacy or national securi

‐ ty) could present to rebut the presumption of public access

to judicial records. The parties before me haven’t even tried.

In neither case have they offered any reason for secrecy ex

‐

cept that they have a confidentiality agreement. Obviously

that’s insufficient, and I could stop there: because there is po

‐

tential public value to disclosing settlement terms, including

amount, parties have to give the judge a reason for not dis

‐ closing them—and the fact that they don’t want to disclose is

not a reason. See Arthur R. Miller, “Confidentiality, Protec

‐

tive Orders, and Public Access to the Courts,” 105 Harv. L.

Rev. 427, 492–93 (1991). But I’ll trudge on.

In Goesel an outsider to the litigation could not evaluate

the dispute over the district judge’s modification of the set

‐

tlement without knowing the amount of the settlement (in

‐ cluding fees and costs) before and after the modification.8 Nos. 13

‐ 2434, 13

‐ 2818

That is information important to future negotiations over at

‐ torneys’ fees in cases in which the plaintiff is a minor; and no

good reason—in fact no reason at all—has been given for

thinking that concealment of the information would serve

some social purpose.

As for the other case, Massuda

, there is no indication that

the amount of the settlement figured in the district court’s

decision. Nor is an unredacted copy of the settlement

agreement, which would reveal that amount, even in the ju

‐

dicial record in either the district court or this court; as far as

I can tell the district judge never saw it. The only issue is

whether the redacted agreement, which is in the judicial rec

‐

ord, should be under seal, as the defendants request. I can’t

understand why they want that, since almost everything of

any possible interest has been redacted, including the size of

the settlement. I asked them for an explanation, and their

unhelpful response was that they requested the seal “in an

abundance of caution” but “do not object to the Seventh Cir

‐

cuit unsealing the redacted document if it decides to do so.”

Oddest of all, they had included a copy of the redacted set

‐

tlement agreement in the appendix to their brief on appeal—

a public document—thus mooting their request for conceal

‐

ment.

The request in Goesel is therefore denied; in Massuda it is

dismissed.