Parties litigating in courts across the country routinely file some documents under seal as a matter of course. Sealing filed documents often is a practical necessity – parties need not disclose certain confidential information in the public domain, and parsing through filings and conferring with opposing counsel and third parties to determine what is truly confidential can be contentious, expensive, time-consuming and ultimately burdensome for the courts. While these are valid reasons for filing sealed documents, a recent Sixth Circuit decision, although rising from unusual facts, should give parties pause before filing large numbers of documents under seal.
Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, No. 15-1544, 2016 U.S. App. LEXIS 10264 (6th Cir. June 7, 2016), is a class action alleging that Blue Cross Blue Shield of Michigan (“BCBS MI”) used its market power to require hospitals in Michigan to enter most favored nation agreements that resulted in higher rates for “Blue Cross’s customers and everyone else – while preserving or expanding Blue Cross’s market share.” The class actions commenced following a similar lawsuit by the U.S. Department of Justice (“DOJ”). Information generated during the DOJ litigation, which had been designated “confidential,” was provided to the private litigants. Given the information had been designated confidential, BCBS MI, while defending itself against this class action, submitted voluminous filings under seal. Likewise, the plaintiffs filed the operative complaint (which cited previously designated confidential information) plus many other documents under seal. After the parties reached a class settlement, objecting class members claimed they were unable to scrutinize the settlement due to the broad extent of the sealed court filings. Regardless, the district court approved the settlement. Continue Reading