Proposing orders to judges took on a different look sometime not so long ago. Instead of saying what the judge has already ruled, as they were meant to do, proposed orders now provide an excuse for secrecy intentionally or unintentionally approved by a judge.
Often, allegedly harmful conduct that was secret will remain secret even when a lawsuit is filed or an administrative agency action is brought. Often, allegedly harmful secret conduct will remain secret with a judge's approval.
This was the case in the People of California v. Wells Fargo lawsuit filed by the City Attorney of Los Angeles. That lawsuit involved allegations that Wells secretly stuck its customers with fees for accounts that the customers did not want or that Wells sold its customers on accounts the customers just did not need. These sales tactics were called "cross-selling" because different kinds of accounts were sold to customers who held other kinds of accounts 'across' the bank.
There was little if any proof in the Court file of the California v. Wells Fargo lawsuit that Wells did these things, and certainly there was no proof introduced into evidence at trial in that case because there was no trial in that case. It was settled before it went to trial.
It is also the case in two enforcement actions brought by two federal agencies, the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency. All three of these proceedings -- one lawsuit and two agency actions -- ended with a settlement with Wells Fargo in which its allegedly bad secret conduct remained a secret anyway. Far more often than not, the defendant or respondent accused of secret harmful conduct will settle and the evidence of its conduct will be kept secret. Generally, the most that the public knows in that event are just the accusations.
That is how a proposed protective order works. It is nothing but an order to protect evidence by concealing it, that the lawyers all agree on, before they submit it to the judge to sign. These stipulated protective orders are written for secrecy, and they often succeed.
That is not how proposed orders were ever meant to work.
To be continued....
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