U.S. 6th Circuit Court of Appeals Reports
PROCTER & GAMBLE CO. v. BANKERS TRUST CO., 78 F.3d 219 (6th Cir. 1996)
THE PROCTER & GAMBLE COMPANY, PLAINTIFF-APPELLEE, v. BANKERS
TRUST COMPANY,
BT SECURITIES CORPORATION, DEFENDANTS-APPELLEES, THE MCGRAW-
HILL COMPANIES,
INC., APPELLANT.
No. 95-4078.
United States Court of Appeals, Sixth Circuit.
Argued December 6, 1995.
Decided March 5, 1996.
John D. Luken (argued), Thomas S. Calder (briefed), Dinsmore
& Shohl, Cincinnati, OH, Matthew Gluck, Fried, Frank, Harris,
Shriver & Jacobson, New York City, Stanley M. Chesley, Waite,
Schneider, Bayless & Chesley, Cincinnati, OH, for
Plaintiff-Appellee.
Thomas B. Ridgley (argued and briefed), Vorys, Sater, Seymour
& Pease, Columbus, OH, Daniel J. Buckley, Vorys, Sater, Seymour &
Pease, Cincinnati, OH, Michael E. Wiles, Debevoise & Plimpton,
New York City, for Defendants-Appellees.
Richard M. Goehler (briefed), Susan Grogan Faller, Frost &
Jacobs, Cincinnati, OH, Laura Handman, New York City, Victor A.
Kovner (argued and briefed), Robert D. Balin, Lankenau, Kovner &
Kurtz, New York City, for Appellant.
Robert D. Sack (argued), Gibson, Dunn & Crutcher, New York
City, Theodore J. Boutrous, Jr. (briefed), Gibson, Dunn &
Crutcher, Washington, DC, for amici curiae Dow Jones and Co.,
Cincinnati Enquirer, Los Angeles Times, Newsday, American Society
of Newspaper Editors.
Richard L. Klein (briefed), New York City, for amicus curiae Bloomberg L.P.
William M. Saks (briefed), American Civil Liberties Union of
Ohio Foundation, Cleveland, OH, for amici curiae American Civil
Liberties Union, American Civil Liberties Union of Ohio
Foundation, Inc.
David L. Marburger (briefed), Baker & Hostetler, Cleveland,
OH, for amici curiae E.W. Scripps Co., et al.
On Appeal from the United States District Court for the Southern District of Ohio.
Before: MERRITT, Chief Judge; BROWN and MARTIN, Circuit Judges.
MERRITT, C.J., delivered the opinion of the court, in which
MARTIN, J., joined, with MARTIN, J., also delivering a separate
concurring opinion. BROWN, J., delivered a separate dissenting
opinion.
MERRITT, Chief Judge.
In a case of widespread interest to the press, the District
Court issued an injunction prohibiting Business Week magazine
from publishing an article disclosing the contents of documents
SNIPPETS:
U.S. 6th Circuit Court of Appeals Reports PROCTER & GAMBLE CO. v. BANKERS TRUST CO.,
THE PROCTER & GAMBLE COMPANY, PLAINTIFF-APPELLEE, v. BANKERS
TRUST COMPANY, BT SECURITIES CORPORATION, DEFENDANTS-APPELLEES, THE MCGRAW-HILL COMPANIES,
United States Court of Appeals, Sixth Circuit.
John D. Luken, Thomas S. Calder, Dinsmore & Shohl, Cincinnati, OH, Matthew Gluck, Fried,
On Appeal from the United States District Court for the Southern District of Ohio.
This appeal raises the issue of whether the bedrock First Amendment principle that the press
820 F.2d 1342, 1351, modified on reh'g by 820 F.2d 1354 (1st Cir.
The District Court maintained its prior restraint on publication for three weeks by
It then sought to avoid review under the mootness doctrine by entering a permanent injunction
The case is not moot because the permanent injunction against publication of the original
The case has received widespread coverage, especially in the business press.
Bankers and P&G agreed to a broad stipulated protective order as part of the discovery
The order provided that parties and non-parties to the litigation - without court approval
Without notice to Business Week or a request for a hearing, on Wednesday, September 13, 1995,
The documents in question were materials supporting a motion by P&G for leave to amend its
The panel did not treat the order as a request for mandamus or exercise its discretion by
While Schiller was away from his office, a New York-based journalist for Business Week
With respect to the "evading review" prong, the initial restraining orders satisfy the
Consequently, important procedural issues raised by the unusual circumstances of a prior
at no time - even to the point of entering a permanent injunction after two temporary
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