American Professional Agency, Inc. v. NASW Assurance Services

After reaching a settlement over all claims, the parties in this private, civil case asked the district court to approve and enter a consent order and judgment under seal. The consent order resolved all claims in the case, which were based on a dispute about the parties’ rights and conduct related to the offering of professional liability insurance to mental health professionals. Each side had asserted that the other engaged in tortious acts, breached contractual obligations, and violated the federal Lanham Act’s prohibition on unfair competition by using false, deceptive, and misleading consumer advertising that was likely to affect purchasing decisions.

At the district court’s request, Public Citizen, Inc. submitted an amicus brief regarding the motion to approve and enter the consent order and judgment under seal. Public Citizen urged the court to deny the motion, arguing that sealing a consent order and judgment would violate the public’s common-law and First Amendment rights of access to judicial records. It emphasized that a consent order is a judicial act that constitutes a court’s decision in a civil proceeding, for which there is a long tradition of public availability that ensures the public’s ability to monitor the judicial function.

The judge then denied the motion requesting that the order be entered under seal. Soon thereafter, the parties re-submitted the consent order to the court without the request for confidentiality; the judge signed the order, and it was entered on the public docket.