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Fifth Circuit Denies Tampa Bay Buccaneers’ Motion to Seal Courtroom in BP Oil Spill Case

By Pete Thomas and Tom Leatherbury

On March 29, 2019, the Fifth Circuit refused to prohibit public access to oral arguments in the Tampa Bay Buccaneers' ("the Bucs") bid to recover "millions of dollars" in damages relating to the Deepwater Horizon oil spill. BP Exploration & Production, Inc. v. Claimant ID 100246928, No. 18-30375, 2019 WL 1434936 (5th Cir. Mar. 29, 2019). Although the team was previously able to seal the briefs and appellate record in its case, the court determined that the Bucs had not satisfied the higher standard for sealing a courtroom. In doing so, the Fifth Circuit underscored the strong presumption in favor of the public's right to access court proceedings.


In April 2010, over 4 million barrels of oil spilled into the Gulf of Mexico following an accident on Deepwater Horizon, an offshore drilling rig operated by British Petroleum ("BP"). In the years since, thousands of claimants have sought compensation for damages caused by the spill. In 2012, BP entered a multi-billion dollar settlement agreement to resolve claims brought by a broad class of individuals and businesses. The settlement included a confidential process through which class members could recover their share of the uncapped settlement amount. BP initially estimated that it would cost $7.8 billion to resolve all the settlement claims. However, once numerous businesses began filing claims for lost profits, it became clear that the total cost would greatly exceed that estimate. BP has since appealed many of the businesses' claims, thus slowing down the disbursement process.

Initially, the Fifth Circuit ordered all appeals in the Deepwater Horizon litigation to be filed under seal, although it eventually opened most oral argument sessions. In February of this year, the Fifth Circuit issued an en banc order vacating its prior order sealing all Deepwater Horizon appeals by default. That order returned Deepwater Horizon appeals to the standard presumption that court proceedings are open to the public.

The Bucs' Case

The Tampa Bay Buccaneers' Deepwater Horizon claim was not publicly known until the Fifth Circuit denied the team's motion. Judge Costa authored the court's five-page order. Because the appellate record is still under seal, it is not clear what the team's claim against BP entails. On appeal from sealed proceedings before the district court, the Bucs moved to seal the courtroom during oral argument.

The Fifth Circuit denied the motion, recognizing that the right of public access to the courtroom is vital to the public's confidence in the judicial system. See id. at *1. Simply put, "[h]ow can the public know that courts are deciding cased fairly and impartially if it doesn't know what is being decided?" Id. Cognizant that it had already sealed the briefs and record in the case, the court distinguished sealing a record from closing a courtroom. Because public attendance at court proceedings allows the public to see that the judiciary functions fairly, "shutting the courthouse door poses an even greater threat to public confidence in the justice system" than sealing documents. Id.

The Bucs advanced three arguments for sealing the courtroom. The court rejected each. First, the team worried that confidential financial data would be disclosed at oral argument. The court found that fear to be unwarranted, given that numerous other businesses basing their Deepwater Horizon claims on profit and loss statements were able to argue their cases in open court without disclosing confidential information. The court also noted that it was able to look at the data from the bench without an attorney having to disclose that sensitive information during argument.

Second, the Bucs argued that opening the courtroom to the public would "gratify BP's private spite, promote public scandal, and harm the team's competitive standing" by surprising the public with the fact that a NFL team has a claim relating to the oil spill. Id. at *2 (quotations omitted). The common law recognizes that some of these interests may limit the general presumption of openness. Id. (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)). In response, the court noted that the news of a NFL team seeking compensation for the Deepwater Horizon oil spill "is not in the same universe" of scandals that would warrant sealing a courtroom. Id. The court cited examples of sensitive cases, such as workplace harassment, sex crimes, and child abuse, that are heard in open court daily.

Finally, the team argued that opening oral argument would violate its "expectation of secrecy" that it had throughout the litigation, given that the settlement program proceedings were confidential under the class-wide agreement. However, the court responded that private confidentiality agreements, even if approved by a lower court, are not binding on judges. Above all, the court recognized that private parties cannot contract away the public's right of access to court proceedings. Rather, it is for the courts to determine whether the parties have presented a sufficient justification for sealing the courtroom.

In Claimant ID100246928, the Fifth Circuit reaffirmed the foundational principle that court proceedings are presumptively open to the public. The case serves as a reminder that, absent a "good reason" to close the courtroom, courts will not allow litigants to exclude the public from judicial proceedings.

Pete Thomas is an associate at Vinson & Elkins, LLP (Washington), and Tom Leatherbury is a partner at Vinson & Elkins, LLP (Dallas).

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