Bobrick Washroom Equipment, Inc. v. SCRANTON PRODUCTS, INC. On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-2577
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BOBRICK WASHROOM EQUIPMENT, INC.,
Appellant
v.
SCRANTON PRODUCTS, INC.
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:14-cv-00853)
District Judge: Honorable Robert D. Mariani
____________
Submitted Under Third Circuit L.A.R.34.1(a)
on July 1, 2025
Before: SHWARTZ, FREEMAN, and SMITH, Circuit
Judges
(Opinion filed: September 26, 2025)
Carl W. Hittinger
Tyson Y. Herrold
Baker & Hostetler LLP
1735 Market Street, Suite 3300
Philadelphia, PA 19103
Counsel for Appellant

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Steven Grimes
Michael A. Meneghini
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
FREEMAN, Circuit Judge.
Several years ago, Scranton Products and Bobrick
Washroom Equipment executed a settlement agreement
(“Agreement”) to resolve the claims in a false-advertising
dispute. The District Court approved the Agreement and
dismissed the case, retaining jurisdiction to enforce the
Agreement. In the Agreement, Scranton and Bobrick
explicitly waived their rights to appeal the District Court’s
orders arising out of the Agreement or any motion to enforce
it.
During subsequent proceedings on enforcement
motions, the District Court entered an order prophylactically
sealing thousands of pages of documents and all future filings
pending its ruling on the enforcement motions. Eighteen
months later, when the District Court ruled on the enforcement
motions, it issued a second order that sealed the court filings
indefinitely. Bobrick appeals both orders.
The first order (the one sealing documents during the
pendency of the enforcement motions) is no longer in effect,
so we lack jurisdiction to review it. We will dismiss Bobrick’s
appeal as to that order.
Although we have jurisdiction to review the second
order (the one sealing documents in perpetuity), Bobrick

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waived its rights to appeal it. Bobrick contends that the District
Court’s second sealing order is patently overbroad and
inconsistent with the public’s common law right of access to
judicial documents and our precedents. However, Bobrick
does not seek to enforce the public’s right to judicial
documents; it seeks to enforce only its private rights—rights
that it waived in the Agreement. For an appellate waiver to
have any force, it must govern appeals of erroneous orders.
Accordingly, we will not exercise our jurisdiction to review the
second sealing order. Pursuant to our practice when enforcing
an appellate waiver, we will affirm the order. We also will
deny Bobrick’s alternative request for a writ of mandamus.
I
In 2014, Scranton sued Bobrick for false advertising.
Scranton alleged that its high-density polyethylene toilet
partitions complied with relevant fire standards and that
Bobrick’s advertising to the contrary was false and misleading,
violating federal and state law. In 2016, Bobrick filed
counterclaims against Scranton, alleging that the partitions
were not in compliance and that Scranton’s advertising to the
contrary was false and misleading. Later, Scranton voluntarily
dismissed its claims with prejudice, and the parties drafted the
Agreement to settle Bobrick’s claims. The Agreement
contains the following appellate waiver: “All decisions and
orders of the Court . . . arising out of this Settlement Agreement
or any Enforcement Motion . . . shall be non-appealable, and
the Parties hereby waive any and all rights to appeal any such
decision or order.” App. 76. In 2018, the District Court
entered an order approving the Agreement, dismissing the
case, and retaining jurisdiction for purposes of enforcing the
Agreement.
Under the Agreement, a party claiming breach must file
a motion with the District Court for liquidated damages,
injunctive relief, or both. Bobrick filed two such motions—
one in 2019 and another in February 2021. It argued that
Scranton failed to comply with the Agreement’s requirements
about notices to customers who purchased non-compliant
partitions. Scranton filed its own enforcement motion in
March 2021, asserting that Bobrick’s February 2021

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enforcement motion was premature under the Agreement,
which creates a cure period for any alleged breach.
The District Court held a six-day evidentiary hearing on
the three enforcement motions in November and December
2021. As specified in the Agreement, the evidentiary hearing
was open to the public. According to Bobrick’s appellate brief,
members of the public and the press attended portions of the
hearing.
During the hearing, Scranton introduced a document
(Scranton’s “Exhibit 28”) containing a list of its customers and
information about their orders. Although Exhibit 28 is labeled
“Attorneys’ Eyes Only – Subject to Protective Order,” neither
party requested that it or any other portion of the evidentiary
hearing record be sealed.
On February 1, 2022, Bobrick filed its proposed
findings of fact and conclusions of law along with an appendix
containing 157 exhibits. That public filing was thousands of
pages long. Two days later, Scranton filed a motion to strike
the appendix from the docket, or alternatively to place it under
seal. Scranton noted that most of the exhibits in the appendix
were not introduced or admitted during the hearing, and it
clarified that it sought relief only as to the portions of the
appendix that were not admitted into evidence, plus Exhibit 28.
Four days later, on February 7, 2022, Scranton filed another
motion, this time seeking to redact the portions of the hearing
transcripts that included content from Exhibit 28.
Acknowledging the public’s right of access to judicial records,
Scranton emphasized that it sought to redact only seven pages
from over 1,400 pages of hearing transcripts.
On February 9, 2022, the District Court (without
waiting for a response from Bobrick) ordered the Clerk of
Court to seal the hearing transcripts and all post-hearing filings
in their entirety, “subject to review after the Court renders its
decision on the pending enforcement motions.” App. 3–4. The
District Court further specified that “[a]ny future filings by the
parties shall be filed under seal.” Id. On February 17, 2022,
Bobrick moved to unseal all documents not subject to
Scranton’s motion—that is, those that Scranton agreed could

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be filed publicly. The District Court did not rule on that
motion.
Eighteen months later, the District Court denied the
three enforcement motions. Bobrick Washroom Equip., Inc. v.
Scranton Prods., Inc., No. 14-853, 2023 WL 5054671, at *18
(M.D. Pa. Aug. 8, 2023). The same day, it issued an order
directing the parties to meet and confer regarding sealing and
to file a joint proposed order within thirty days. The order
stated, “To the extent the parties are unable to agree . . . , the
Court will order that the status quo (i.e., the Court’s February
9, 2022, [Sealing] Order . . . ) shall remain in effect pending
[any] further agreement of the parties.” App. 6.
On August 21, 2023, Bobrick sent Scranton a letter
stating its position that none of the hearing transcripts or post-
hearing briefing could be sealed. On August 25, Scranton
responded, stating that it disagreed with Bobrick’s position and
therefore, under the August 8 order, the status quo would
remain in effect. Scranton nonetheless stated that it would be
open to further discussions with Bobrick to work toward a joint
proposed order.
On August 25, 2023, Bobrick filed a notice of appeal of
the February 2022 and August 2023 sealing orders.
II1
We must assure ourselves of our jurisdiction “before we
can proceed to the question of whether [an appellate] waiver is
enforceable.” United States v. Jackson, 523 F.3d 234, 237 (3d
Cir. 2008). That is because an appellate waiver does not divest
us of appellate jurisdiction; instead, it typically compels us to
decline to exercise that jurisdiction. See United States v.
Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). We always have
jurisdiction to determine our own jurisdiction. Pub. Int. Legal
Found. v. Sec’y, Commw. of Pa., 136 F.4th 456, 461 (3d Cir.
2025).
1 The District Court had jurisdiction under 28 U.S.C. § 1331
because Scranton brought claims and Bobrick brought
counterclaims arising under federal law.

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We lack jurisdiction over the appeal of the February
2022 order. That order sealed the evidentiary hearing record
and all hearing-related filings, “subject to review” after
resolution of the enforcement motions. App. 3–4. When the
District Court denied the enforcement motions, it issued a new
sealing order: the August 2023 order, which kept the status quo
in place. Thus, the February 2022 order expired in August
2023. We have no ability to order relief from a sealing order
that is no longer in effect. Accordingly, the appeal of that order
is moot. See Constand v. Cosby, 833 F.3d 405, 409 (3d Cir.
2016) (noting the mootness inquiry is “centrally concerned
with the court’s ability to grant effective relief” (citation
omitted)).
Although the August 2023 order remains in effect,
Scranton contends that we lack jurisdiction to review that order
because it is not final. We disagree. Post-judgment orders that
seal materials in perpetuity, such as the August 2023 order, are
final and appealable.
28 U.S.C. § 1291 grants us jurisdiction over “appeals
from all final decisions of the district courts.” Under the
collateral order doctrine, we give § 1291 “a practical
construction.” Will v. Hallock, 546 U.S. 345, 349 (2006)
(citation omitted). Thus, § 1291 provides us appellate
jurisdiction over “a narrow class of decisions that do not
terminate the litigation, but are sufficiently important and
collateral to the merits that they should nonetheless be treated
as final.” Id. at 347 (cleaned up). Decisions are in that narrow
class if they (1) “conclusively determine the disputed
question,” (2) “resolve an important issue completely separate
from the merits of the action,” and (3) are “effectively
unreviewable on appeal from a final judgment.” Id. at 349
(cleaned up).
“We have held that orders either granting or . . . denying
access to court proceedings or records are appealable as final
orders.” United States v. Smith, 123 F.3d 140, 145 (3d Cir.
1997); accord United States v. Thomas, 905 F.3d 276, 280 (3d
Cir. 2018). Such is the case here, notwithstanding the
conditional language of the August 2023 order.

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The parties dispute only the first requirement for
collateral-order jurisdiction: whether the August 2023 order
conclusively determines the disputed sealing question. It does.
Post-judgment orders that seal materials in perpetuity
conclusively determine the sealing question.
Recall that the February 2022 order stated that all
hearing transcripts and filings would be sealed, “subject to
review after the Court renders its decision on the pending
enforcement motions.” App. 3–4. When the District Court
resolved the enforcement motions, it issued the August 2023
order giving the parties 30 days to work toward an agreement
about sealing. But that order specified that if the parties were
unable to reach an agreement, the “status quo” of wholesale
sealing would remain in effect indefinitely, “pending [any]
further agreement from the parties.” App. 6. Therefore, the
August 2023 order placed all transcripts and documents related
to the evidentiary hearing under seal permanently, contingent
only on an event that might never occur.
As we have stated in the context of administrative
proceedings, “the finality of an order cannot be conditioned on
something that may never happen.” Fang v. Dir. U.S. Immigr.
& Customs Enf’t, 935 F.3d 172, 184 (3d Cir. 2019). This
principle applies with equal force here. See United States v.
Wecht, 537 F.3d 222, 230 (3d Cir. 2008) (determining that a
pretrial order denying public access to the names of
prospective jurors was a conclusive determination of the issue
of public access because “[t]here is no reason to believe that
any subsequent developments would have led the District
Court to reconsider its conclusion”). Bobrick and Scranton
might eventually reach an agreement with respect to sealing in
this case, but they might not. Similarly, the District Court
might alter its sealing decision, either sua sponte or upon a
motion from the parties, but it might not. We will not condition
the finality of a district court’s post-judgment sealing order on
contingencies that may never happen. Shingara v. Skiles, 420
F.3d 301, 305 (3d Cir. 2005) (“The possibility that the district
court . . . may reconsider the order with respect to a particular
document is too narrow to reject the conclusion that the court
has determined not to disturb the protective order.”). So orders
like the August 2023 order are final and conclusively
determine the sealing issue.

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The second and third requirements for collateral-order
jurisdiction are easily satisfied. The public’s right of access to
judicial proceedings and a party’s interest in sealing are distinct
from the merits of the action. See id. And orders like the
August 2023 sealing order are effectively unreviewable on
appeal from a traditional final judgment. After all, the District
Court here approved the parties’ settlement agreement and
dismissed all the false-advertising claims five years before it
issued the sealing order, so no traditional final judgment is
forthcoming. Cf. Crystallex Int’l Corp. v. Bolivarian Rep. of
Venezuela, 24 F.4th 242, 255–56 (3d Cir. 2022) (discussing
circumstances in which post-judgment decisions have practical
finality). Moreover, orders that seal court filings in perpetuity
are effectively unreviewable on appeal from a final judgment
because the public’s interest in access to court proceedings
diminishes over time. See Shingara, 420 F.3d at 305
(“[N]obody wants to read yesterday’s news.”).
III
Although we have appellate jurisdiction to review the
August 2023 order, we decline to exercise that jurisdiction due
to Bobrick’s appellate waiver.
Bobrick waived “any and all rights to appeal” any
decision “arising out of th[e] Settlement Agreement or any
Enforcement Motion.” App. 76. Without the parties’
enforcement motions, there would be no evidentiary hearing
transcript or post-hearing filings, and there would be no order
sealing those materials. Thus, the August 2023 order arises out
of enforcement motions filed under the Agreement, and the
appellate waiver applies. See, e.g., Tuscarora Wayne Mut. Ins.
Co. v. Kadlubosky, 889 A.2d 557, 563 (Pa. Super. Ct. 2005)
(noting in the Pennsylvania insurance context that “‘arising out
of’ means causally connected with, not proximately caused by”
and “has been equated with ‘but for’ causation” (citation
omitted)).
Bobrick resists this conclusion on two grounds. Neither
is persuasive.

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First, Bobrick notes that the sealing order implicates the
public’s right of access to judicial records, and it argues that it
should not be permitted to waive the public’s right. Bobrick’s
premise about the public right to judicial records, including
those related to settlements, is “beyond dispute.” LEAP Sys.,
Inc. v. MoneyTrax, Inc., 638 F.3d 216, 220 (3d Cir. 2011)
(citation omitted). The public’s common law right
encompasses access to “all judicial records and documents[,]
. . . includ[ing] transcripts, evidence, pleadings, and other
materials submitted by litigants.” Id. (citation omitted). We
have expounded upon the importance of courts safeguarding
that right by applying a strong presumption of access to judicial
records. See In re Avandia Marketing, Sales Practices &
Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019). To
overcome that presumption, a district court “must articulate the
compelling, countervailing interests to be protected, make
specific findings on the record concerning the effects of
disclosure, and provide an opportunity for interested third
parties to be heard.” Id. at 672–73 (cleaned up).
Bobrick argues that the August 2023 order is contrary
to In re Avandia. However, Bobrick does not seek to enforce
the public’s right to judicial records. It seeks to enforce only
its private rights—rights that it clearly and unambiguously
waived in the Agreement.2 It cannot overcome that waiver by
pointing to the impact on the public. Of course, if a member
of the public or the press challenged the sealing order, the
2 We have enforced appellate waivers in civil settlements based
on much less direct waiver language than that in this
Agreement. In In re Odyssey Contracting Corporation, the
parties stipulated that their claims “will be withdrawn and
disposed of in their entirety with prejudice” and that “this
proceeding shall be deemed to be finally concluded.” 944 F.3d
483, 487–88 (3d Cir. 2019) (emphasis omitted). We held that
this language constituted a waiver of any right to appeal. Id. at
488. We explained that no explicit appellate waiver was
necessary because the stipulation evidenced the parties’ intent
to put the case to rest. Id. at 490 (noting that our cases
addressing consent judgments establish that “a party that seeks
to appeal must make its intent to do so clear at the time of the
stipulation setting the manner for resolution”).

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parties’ appellate waiver would have no effect on that
challenge. Here, though, we are confronted with an appeal of
an order that Bobrick signed away “any and all rights” to
appeal. App. 76.
Second, Bobrick argues that appellate waivers may not
insulate review of violations of well-established law. It relies
on caselaw regarding appellate waivers in criminal cases. In
that context, we enforce knowing and voluntary appellate
waivers unless they are invalidated by an error that would work
a miscarriage of justice. United States v. Khattak, 273 F.3d
557, 562–63 (3d Cir. 2001). But we rarely identify a
miscarriage of justice. See, e.g., United States v. Yung, 37
F.4th 70, 81–82 (3d Cir. 2022) (declining to enforce a criminal
appellate waiver in a challenge to a sentence that was not
authorized by law, where enforcing the waiver would allow the
executive to intrude upon the legislature’s prerogatives). And
even assuming that a miscarriage of justice could release a civil
litigant from its appellate waiver, we discern no miscarriage of
justice here.
After years of litigation, Bobrick and Scranton agreed
to settle their dispute and granted the District Court
unappealable authority to handle any enforcement issues.
“[S]ophisticated business entities” that enter into settlement
agreements and waive their appellate rights can and should be
held to those waivers, to prevent opposing parties “from being
caught by surprise or left guessing about the finality and hence
efficacy of the [settlement].” In re Odyssey Contracting Corp.,
944 F.3d 483, 490 (3d Cir. 2019) (internal quotation marks
omitted). It is not unjust to hold Bobrick to its waiver here,
notwithstanding that the August 2023 sealing order might run
afoul of well-established law. For an appellate waiver to have
any force, it must cover appeals of orders that are legally
correct and those that are erroneous.
Because we will not exercise our appellate jurisdiction
to review the August 2023 order, we will affirm that order.
Though it may seem incongruous for us to decline to exercise
jurisdiction yet affirm an order, that is our practice when
enforcing appellate waivers in civil and criminal matters. See,
e.g., Odyssey Contracting Corp., 944 F.3d at 490; United

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States v. Gwinnett, 483 F.3d 200, 202–03 (3d Cir. 2007). We
follow that practice here.
IV
Finally, if the appellate waiver is enforceable, Bobrick
seeks a writ of mandamus under the All Writs Act. See 28
U.S.C. § 1651. Mandamus is “an extreme remedy reserved for
only the most extraordinary situations.” In re Abbott Lab’ys,
96 F.4th 371, 379 (3d Cir. 2024) (cleaned up). To obtain
mandamus relief, a party must show “(1) a clear and
indisputable abuse of discretion or error of law, (2) a lack of an
alternate avenue for adequate relief, and (3) a likelihood of
irreparable injury.” Id. (citation omitted). When the party
makes that showing, we still have broad discretion to grant or
deny the writ. Id.
Mandamus is not “a substitute for the regular appeals
process,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 381
(2004), and Bobrick unambiguously waived its right to avail
itself of the regular appeals process. So even if Bobrick could
satisfy the prerequisites for mandamus despite its appellate
waiver, we would not exercise our discretion to issue a writ of
mandamus in these circumstances. The request for a writ of
mandamus is denied.
* * *
For the foregoing reasons, we will dismiss this appeal
insofar as it challenges the District Court’s February 2022
order and we will affirm the District Court’s August 2023
order.

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