In re: Avandia Marketing v.
924 F.3d 662
| 3rd Cir. | 2019Background
- GSK (maker of Avandia) and two health benefit plans (UFCW and J.B. Hunt) litigated claims arising from allegations that GSK concealed cardiovascular risks associated with Avandia; the plans lost on summary judgment and appealed.
- Many documents were filed under seal in connection with GSK's summary judgment briefing pursuant to an MDL protective order (PTO 10).
- After the district court entered summary judgment for GSK, GSK moved twice in district court to maintain confidentiality of numerous summary-judgment filings on appeal; the plans opposed, invoking the common-law and First Amendment rights of public access.
- The district court denied unsealing for most documents, applying the Rule 26/Pansy protective-order framework rather than the common-law presumption of public access and conducted no meaningful document-by-document analysis.
- The plans appealed the two sealing orders; the Third Circuit concluded the district court applied the wrong legal standard, failed to start with the presumption of access, and did not perform the required document-level findings.
- The Third Circuit vacated and remanded the sealing orders for the district court to apply the common-law right of access (with a presumption in favor of openness), and to make specific findings; the court declined to decide whether the First Amendment right attaches to summary-judgment records, leaving that question for later if necessary.
Issues
| Issue | Plaintiff's Argument (Plans) | Defendant's Argument (GSK) | Held |
|---|---|---|---|
| Whether district court erred by applying Rule 26/Pansy standard instead of the common-law presumption of access to documents filed in support of summary judgment | Common-law right of access attaches to summary-judgment filings and begins with a strong presumption in favor of public access; district court must start from that presumption | Protective-order standard (Rule 26/Pansy) is appropriate and allows confidentiality where good cause shown (competitive harm, reputation, FDA communications) | Court held district court erred: must apply common-law right of access with presumption favoring openness and perform document-by-document analysis; vacated and remanded |
| Burden of proof for continued sealing | Plans: movant seeking continued sealing must justify secrecy under common-law test | GSK: argued its showing of competitive/reputational harm justified sealing under Pansy/good-cause approach | Held that GSK bears burden to rebut presumption of access with specific, current evidence of clearly defined and serious injury; vague/old declarations insufficient |
| Adequacy of district court’s findings (document-by-document review) | District court provided insufficient, collective reasoning (one-paragraph footnote) and failed to make specific findings for each document | District court’s broad categories and reference to Pansy factors were adequate | Held district court’s collective analysis was inadequate; must articulate compelling countervailing interests and make specific findings, including opportunity for third-party input |
| Whether First Amendment right of access applies to summary-judgment records | Plans argued First Amendment applies to summary-judgment filings | GSK contested standing to raise First Amendment claim and opposed extension | Court declined to resolve First Amendment question; remanded to apply common-law standard first and to consider constitutional arguments only if documents remain sealed after remand |
Key Cases Cited
- Bank of Am. Nat'l Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir.) (common-law presumption of public access to judicial records)
- In re Cendant Corp., 260 F.3d 183 (3d Cir.) (strong presumption of openness; requirements for sealing include specific findings and opportunity for third-party input)
- Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir.) (protective-order framework under Fed. R. Civ. P. 26 and relevant balancing factors)
- Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir.) (First Amendment right of access to civil trials; high showing required to close proceedings)
- Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653 (3d Cir.) (summary-judgment filings are judicial records; reputational or competitive injury must be shown with specificity)
- Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157 (3d Cir.) (document-by-document review required; careful factfinding and balancing)
- Miller v. Ind. Hosp., 16 F.3d 549 (3d Cir.) (movant must show disclosure will cause clearly defined and serious injury)
- Glenmede Tr. Co. v. Thompson, 56 F.3d 476 (3d Cir.) (enumeration of Pansy factors to consider when granting protective orders)
- Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir.) (First Amendment presumption may extend to summary-judgment records)
- Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir.) (First Amendment access applied to summary-judgment materials)