# The Procter & Gamble Company v. Bankers Trust Company, Bt Securities Corporation, the McGraw Companies, Inc.

> Court of Appeals for the Sixth Circuit · May 8, 1996 · 78 F.3d 219

URL: https://www.frixlaw.com/law-library/cases/9488958

## Case

- **Full name:** The PROCTER & GAMBLE COMPANY, Plaintiff-Appellee, v. BANKERS TRUST COMPANY, BT Securities Corporation, Defendants-Appellees, the McGraw-Hill Companies, Inc., Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 8, 1996
- **Citations:** 78 F.3d 219
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Merritt, Brown, Martin
- **Cited by:** 261 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488958

## How later opinions describe it (automated extraction)

- holding that ex parte orders restraining free speech have “no place” in the “First Amendment realm” where no *608 showing is made that it is impossible to notify the interested parties and give them an opportunity to be heard
- explaining that the purpose of a TRO “is to preserve the status quo so that a reasoned resolution of a dispute maybe had.”

## Opinion text

BOYCE F. MARTIN, Jr., Circuit Judge,
concurring.
While I concur in Chief Judge Merritt’s opinion, I write separately to express my views on a few issues. With regard to whether this case was barred by the mootness doctrine, I note that it regrettably fell to my lot to choose between the two very logical and well-reasoned views of Chief Judge Merritt and Judge Brown on the issue. After careful consideration, I agree that this case continued to present a live controversy enabling our review of its merits. Despite the fact that, on October 3, 1995, the district court unsealed the documents at issue, it entered a second order that same day permanently enjoining Business Week from publishing the confidential materials it ob *228 tained unlawfully. Because that injunction is a permanent one, it is a final and appealable order. Moreover, because I believe it is an unlawful prior restraint that remains in effect, the present case was not rendered moot, and we properly could reach the merits of the claim presented.
I note more generally that this appeal is the culmination of a series of missteps at every stage of the case. To begin with, Bankers Trust and Procter & Gamble never should have been allowed, in January 1995, to stipulate to a broad protective order as part of their discovery process. By its terms, the protective order could be amended by the parties without prior court approval and would be effective against non-parties. This is ludicrous. In allowing the parties to stipulate to a protective order, the district court abdicated its responsibility for supervising the discovery proceedings.
The district court’s initial order of September 13, 1995, that was faxed to McGraw-Hill prohibiting publication, was equally problematic. The district court had absolutely no jurisdiction over Business Week at that time, and the magazine did not receive notice or a hearing prior to the court’s enjoining it from publishing the documents at issue. Any court order, to be valid, needs jurisdiction, and the lack of it in this case essentially subjected Business Week to the modern day equivalent of a star chamber.
After McGraw-Hill filed for a stay of the district court order and an expedited appeal with this Court the following day, a panel dismissed the appeal on the ground that the order was only temporary and therefore not final and appealable. At that stage, the nature of the appeal should have been converted to a mandamus action under In re King World Productions, Inc., 898 F.2d 56 (6th Cir.1990), and the panel set aside the prior restraint.
Finally, on October 3, the district court filed its two contradictory orders, simultaneously entering a permanent injunction against publication of the confidential materials Business Week obtained unlawfully and releasing the sealed documents into the public domain. In entering the permanent injunction, I do not believe the district court even came close to justifying its action in light of Justice Stewart’s statement that a prior restraint upon publication is improper absent proof that publication “will surely.result in direct, immediate, and irreparable damage to our Nation or its people.” New York Times Co. v. United States, 403 U.S. 713, 730 , 91 S.Ct. 2140, 2149 , 29 L.Ed.2d 822 (1971). It is thus clear to me that the permanent injunction that remains in effect is a prior restraint that logically falls within that group of cases capable of repetition yet evading review. I therefore join Chief Judge Merritt in holding that the injunction violates the First Amendment and must be set aside.
I note as well that this appeal is a stark example of the ways in which financial and economic powers drive our society. Business Week is certainly a respected financial publication, but I would not hold it out as the torch-bearer for freedom of the press in light of the fact that this case dealt more with economic power than with the effect of a free and unfettered press on our society. Having read the entire record in this ease, I am at a loss as to why Business Week felt this information was so newsworthy. Ironically, the district judge’s faxed order of prior restraint engendered more media coverage than the original information passed along by an unthinking lawyer. This is an example to me of highly-paid counsel wanting to try a case in the media, which unfortunately does nothing for the judiciary’s poor public relations as a whole. This case should serve as a reminder that the First Amendment cuts both ways. It protects the speech here from prior restraint, but the media has an ethical duty to report fairly and without distortion. Moreover, the media ought to refrain from blaming the judiciary when a situation like this, caused in large part by the parties’ conduct, arises.
Finally, what causes the greatest concern in my mind is that a reading of our decision in this ease could be an additional chapter in Philip K. Howard’s book, The Death of Common Sense: How Law is Suffocating America. (Random House, New York, 1994).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488958. Public record. Not legal advice.