Earlier this year, U.S. District Judge Max O. Cogburn Jr. overturned a lower court’s decision to seal documents and testimony in the bankruptcy estimation trial of Garlock Sealing Technologies. He affirmed that a court is a public forum and that the public has the right to know the details of court settlements.
“As a gatekeeper, a judge must consider sealing as the exception to the rule, give the public notice of its intent to seal, require counsel to provide valid reasons for such extraordinary relief, and then explain that decision as well as the reason why less drastic alternatives were not employed,” Cogburn asserted.
These particular records contained possible evidence of fraud: efforts made to increase recovery from Garlock by denying exposure to other asbestos products and delaying claims against asbestos trusts until after settlement.
Judge Milton Shuffield of the 136th District Court appears not to share Judge Cogburn's perspective on gatekeeping. He seems to think that our courts are private fora and what transpires in them is none of our business.
Four years ago, Shuffield made attorney Brent Coon happy by sealing the details of an arbitration agreement reached with the Provost Umphrey law firm, Coon's former employer, regarding the division of fees resulting from asbestos cases.
Coon claimed that the public has “no interest” in the information sealed, and yet there are many concerned citizens, ourselves included, who are keenly interested in knowing how attorneys like Coon use our courts to attack legal businesses.
Recently, Shuffield ingratiated himself with the Mostyn Law Firm, partially sealing the details of a settlement awarded to their clients in a Hurricane Ike suit against an insurance carrier and its adjuster.
In addition to awarding more than $166,000 in damages (plus $237,000 in attorney’s fees), the jury also levied exemplary damages against the defendant. For some reason, Shuffield concluded that this latter amount had best remain hidden from public view.
Something tells us Judge Cogburn would not approve. We sure don’t.