R & G Mortgage Corp. v. Federal Home Loan Mortgage Corp.

United States Court of Appeals
For the First Circuit

No. 08-2542

R&G MORTGAGE CORPORATION AND
R-G PREMIER BANK OF PUERTO RICO,

Plaintiffs, Appellees,

v.

FEDERAL HOME LOAN MORTGAGE CORPORATION,

Defendant, Appellee.
____________________

DORAL BANK,

Putative Intervenor, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Howard, Ripple* and Selya, Circuit Judges.

Nelson N. Cordova-Morales, with whom Harold D. Vicente and
Vicente & Cuebas were on brief, for putative intervenor.
Raul M. Arias, with whom John Oberdorfer, Samantha R. Petrich,
Patton Boggs LLP, Francisco G. Bruno, Irma M. Léon González, and
McConnell Valdes were on brief, for plaintiffs.
William C. Ballaine, with whom Mark S. Landman, Landman Corsi
Ballaine & Ford, Ricardo F. Casellas, Casellas Alcover & Burgos,
P.S.C., and Kenton W. Hambrick were on brief, for defendant.

*
Of the Seventh Circuit, sitting by designation.
 October 1, 2009

_______________
 SELYA, Circuit Judge. This appeal directly challenges

the denial of an attempt at post-settlement intervention and

indirectly challenges the propriety of a sealing order.1 The stage

is easily set. After the settlement of a sealed lawsuit to which

it was not a party, Doral Bank (Doral) sought to intervene. The

district court denied the motion as untimely and refused to conduct

a hearing anent the propriety of the sealing order. The court

later declined to reconsider its order.

Doral now appeals, asseverating that it should have been

permitted (i) to intervene as of right or (ii) to intervene

permissively to challenge the sealing order. Discerning no abuse

of discretion in the district court's rulings, we affirm.

I. BACKGROUND

We set forth the largely undisputed facts as found by the

district court, consistent with record support.

This case rises from the ashes of the once vibrant market

in mortgage-backed securities. The plaintiff is a mortgage lending

and servicing conglomerate.2 The defendant, Federal Home Loan

1
We use the term "post-settlement" in lieu of the more
familiar term "post-judgment" because the district court approved
the final settlement agreement before the putative intervenor moved
for leave to intervene, but did not enter judgment on the docket
until several days later. Inasmuch as the parties have attached no
significance to this chronological curiosity, we make no further
mention of it.
2
Although both R&G Mortgage Corp. and R-G Premier Bank of
Puerto Rico are plaintiffs, we refer to them collectively as R&G.

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Mortgage Corp. (Freddie Mac), is (or, more accurately, was in

earlier halcyon days) a prodigious purchaser of mortgages needed to

feed its appetite for a steady stream of offerings of mortgage-

backed securities. Freddie Mac does not itself collect and process

loan payments or work out defaults on the mortgage loans that it

buys. Instead, it outsources those tasks to qualified servicers.

R&G and Freddie Mac had a business relationship reaching

back over three decades. In the ordinary course of that

relationship, Freddie Mac contracted with R&G to service a

substantial portfolio of Puerto Rican mortgages. In 2008, however,

the relationship soured.

On July 11, 2008,3 Freddie Mac informed R&G that it was

being terminated as a qualified servicer (and, thus, could no

longer service Freddie Mac's loan portfolio). To pick up the

slack, Freddie Mac contracted on the same date with Doral to take

over the servicing of the loans on an interim basis. Doral noted

this arrangement in a so-called 8-K report that it filed with the

Securities and Exchange Commission (SEC).

On July 14, R&G brought suit against Freddie Mac in the

United States District Court for the District of Puerto Rico. Its

complaint alleged breach of contract and prayed for a declaratory

judgment to vindicate its status as a qualified servicer of Freddie

Mac mortgage loans (at least until a contractual appeals process

3
All dates are in 2008 unless otherwise indicated.

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had run its course), along with injunctive relief designed to keep

the Freddie Mac mortgage portfolio under R&G's control pendente

lite. Concerned that its confidential business information

otherwise would wind up in the public domain, R&G asked that the

case be placed under seal.

On the same day that the action was commenced, the

district court issued an ex parte temporary restraining order (TRO)

that, among other things, blocked both the termination of R&G's

status as a qualified servicer and the planned transfer of the

servicing rights to Doral. The court simultaneously granted R&G's

ancillary request, placing the docket and all papers in the case

under seal.

Doral received notice on several occasions that this

litigation impeded its interim servicing contract. We cite some

examples.

! Freddie Mac's associate general counsel
initiated a conference call with Doral's
president and in-house lawyer on July 15,
during which the caller informed the Doral
hierarchs that the TRO had issued and that it
blocked Freddie Mac from shifting servicing of
the portfolio to Doral.

! On July 16, R&G filed an 8-K report
stating that R&G had obtained the TRO and
describing its effect. That SEC report was a
matter of public record.

! On the following day, Freddie Mac sent
a letter to Doral formally notifying Doral
that the TRO, issued by the federal court in
Puerto Rico, put the planned transfer of the
mortgage portfolio "on hold."

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 ! On July 18, R&G's general counsel wrote
to his counterpart at Doral, by mail and e-
mail. That communique notified Doral of the
issuance of the TRO and admonished that the
TRO "precluded" the implementation of Doral's
agreement with Freddie Mac. Although a glitch
in the address caused a delay in delivery of
the hard copy of this letter, Doral's general
counsel acknowledged that he received it no
later than August 11. In any event, Doral
never denied receiving the e-mail, so it
presumably received that version on the day of
transmission.

! Doral responded to these
developments on August 14. On that date, it
wrote to R&G, advising that it would move to
intervene in the pending action unless it was
given a copy of the TRO. R&G refused this
ultimatum via e-mail on the following day,
noting that all the paperwork in the case was
under seal. The e-mail advised that Doral's
interim servicing agreement was not directly
at issue in the litigation but that, insofar
as that agreement pertained to R&G's portfolio
of Freddie Mac mortgages, the TRO rendered
Doral "unable to perform."

At this point, we return to the travel of the case.

Rather than holding a hearing on preliminary injunction, see Fed.

R. Civ. P. 65(b)(2)-(3), the district court extended the TRO

several times by consent while settlement discussions percolated

between R&G and Freddie Mac. On September 18, those parties

jointly moved under seal for court approval of a negotiated

settlement that allowed R&G to continue to service Freddie Mac

mortgages until it could sell its servicing rights to a qualified

third party.

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 On the same day, Freddie Mac advised Doral of the

settlement. It offered to provide a copy of the sealed settlement

agreement, contingent upon Doral's execution of a confidentiality

agreement. Although Freddie Mac and Doral subsequently agreed to

the terms of the confidentiality agreement, Doral never signed it.

The district court approved the settlement on September

25. A week later (on October 2), Doral moved to intervene either

as of right or permissively. Invoking our decision in Banco

Popular v. Greenblatt, 964 F.2d 1227 (1st Cir. 1992), the district

court denied the motion as untimely. The court later eschewed

reconsideration. This seasonable appeal followed. We have

jurisdiction because an order denying a motion to intervene is

immediately appealable. Pub. Serv. Co. of N.H. v. Patch, 136 F.3d

197, 204 (1st Cir. 1999).

II. DISCUSSION

We first examine Doral's contention that it should have

been granted leave to intervene as of right. We then turn to its

alternative contention that it should have been granted leave to

intervene permissively.

A. Intervention as of Right.

To succeed on a motion to intervene as of right, a

putative intervenor must establish (i) the timeliness of its motion

to intervene; (ii) the existence of an interest relating to the

property or transaction that forms the basis of the pending action;

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(iii) a realistic threat that the disposition of the action will

impede its ability to protect that interest; and (iv) the lack of

adequate representation of its position by any existing party. See

Negrón-Almeda v. Santiago, 528 F.3d 15, 22 (1st Cir. 2008); B.

Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-45

(1st Cir. 2006); see also Fed. R. Civ. P. 24(a). The movant must

fulfill each of these preconditions. "The failure to satisfy any

one of them dooms intervention." Patch, 136 F.3d at 204.

The court below recognized that when intervention is at

issue, timeliness is the "prevenient question." Greenblatt, 964

F.2d at 1230 (explaining that "timeliness stands as a sentinel at

the gates whenever intervention is requested and opposed").

Consequently, the court started with the timeliness requirement.

We emulate that approach.

The timeliness inquiry is inherently fact-sensitive and

depends on the totality of the circumstances. Id. at 1230-31. In

evaluating that mosaic, the status of the litigation at the time of

the request for intervention is "highly relevant." Id. at 1231.

As a case progresses toward its ultimate conclusion, the scrutiny

attached to a request for intervention necessarily intensifies.

Id.

As a general matter, the case law reflects four factors

that inform the timeliness inquiry: (i) the length of time that the

putative intervenor knew or reasonably should have known that his

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interests were at risk before he moved to intervene; (ii) the

prejudice to existing parties should intervention be allowed; (iii)

the prejudice to the putative intervenor should intervention be

denied; and (iv) any special circumstances militating for or

against intervention. Id. Each of these factors must be appraised

in light of the posture of the case at the time the motion is made.

Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 65 (1st Cir.

2008). Under this approach, motions to intervene that will have

the effect of reopening settled cases are regarded with particular

skepticism because such motions tend to prejudice the rights of the

settling parties. See, e.g., In re Lease Oil Antitrust Litig., 570

F.3d 244, 250 (5th Cir. 2009); Heartwood, Inc. v. U.S. Forest

Serv., 316 F.3d 694, 700-01 (7th Cir. 2003); Greenblatt, 964 F.2d

at 1231.

We review the grant or denial of a motion to intervene

for abuse of discretion. Negrón-Almeda, 528 F.3d at 21. We

caution, however, that the abuse of discretion standard is not one-

dimensional. Within that rubric, a material error of law

constitutes a per se abuse of discretion, id. at 22, and a trial

court's answers to abstract legal questions are reviewed de novo,

Daggett v. Comm'n on Governmental Ethics & Election Practices, 172

F.3d 104, 109 (1st Cir. 1999). Moreover, a trial court's

subsidiary findings as to raw facts are reviewed for clear error.

Ewers v. Heron, 419 F.3d 1, 3 (1st Cir. 2005).

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 The Civil Rules contemplate two types of motions to

intervene: intervention as of right, Fed. R. Civ. P. 24(a), and

permissive intervention, Fed. R. Civ. P. 24(b). The differences

are significant. We mention two particulars. First, in the case

of a motion to intervene as of right, the district court's

discretion is somewhat more constrained than in the case of a

motion for permissive intervention. See Patch, 136 F.3d at 204.

Second, the timeliness requirement is often applied less strictly

with respect to intervention as of right. See, e.g., Navieros

Inter-Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 320

(1st Cir. 1997). But we hasten to add a caveat: even in the case

of a motion to intervene as of right, the district court's

discretion is appreciable, and the timeliness requirement retains

considerable bite.

In this instance, Doral claims that it was entitled to

intervene as of right because its contractual rights under the

interim servicing agreement were directly impacted by R&G's suit

and that, in its absence, no other party would protect its

interests. The lower court did not reach the merits of these

claims. Rather, it concluded as a threshold matter that Doral

could not vault the timeliness hurdle and, accordingly, denied the

motion. We examine that rationale.

A motion to intervene is timely if it is filed promptly

after a person obtains actual or constructive notice that a

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pending case threatens to jeopardize his rights. Greenblatt, 964

F.2d at 1231; Caterino v. Barry, 922 F.2d 37, 40-41 (1st Cir.

1990). Perfect knowledge of the particulars of the pending

litigation is not essential to start the clock running; knowledge

of a measurable risk to one's rights is enough. See Greenblatt,

964 F.2d at 1231; Culbreath v. Dukakis, 630 F.2d 15, 20-21 (1st

Cir. 1980).

In conducting a timeliness inquiry, there are no ironclad

rules about just how celeritously, in terms of days or months, a

person must move to protect himself after he has acquired the

requisite quantum of knowledge. The passage of time is measured

in relative, not absolute, terms. Thus, what may constitute

reasonably prompt action in one situation may be unreasonably

dilatory in another. Compare, e.g., Geiger, 521 F.3d at 65 (nine-

month delay in moving to intervene reasonable in particular

circumstances), with, e.g., Greenblatt, 964 F.2d at 1231-32

(three-month delay unreasonable in a different set of

circumstances). In the last analysis, the timeliness inquiry

centers on how diligently the putative intervenor has acted once

he has received actual or constructive notice of the impending

threat.

The district court supportably found that Doral learned

about the suit and the consequent jeopardy to its servicing rights

during the July 15 conference call. Doral received confirmation

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that the TRO was in place in the form of an e-mail from R&G, which

was transmitted on July 18. That communication made it pellucid

that the TRO adversely affected Doral's contractual rights. Doral

obviously appreciated that fact; on August 14 — armed with

essentially the same information that it had on July 18 — Doral

threatened to intervene in the pending action in order to protect

its rights. But despite this bluster, Doral inexplicably waited

until October 2 before moving to intervene.

The district court determined that a delay of two and

one-half months after Doral knew of the incipient problem (that

is, a delay from July 18 to October 2) was inexcusable. That

determination was well within the realm of the court's discretion.

As struthious as Doral may have been, it is simply implausible

that Doral did not know by mid-July that its rights were

imperilled.4 Doral's failure to act until October amply supported

the district court's ruling that its motion to intervene was

unreasonably late. See Greenblatt, 964 F.2d at 1231-32; Caterino,

922 F.2d at 40-41; cf. United States v. Taylor, 54 F.3d 967, 972

(1st Cir. 1995) (explaining that, as a general proposition, "the

4
Even if we were to assume that August 11, rather than July
18, was the date on which Doral's knowledge crystallized, that
assumption would not assist Doral. The district court explicitly
and supportably found that, if August 11 was the date on which
Doral acquired knowledge of a measurable risk, it nonetheless
failed to act in a timeous fashion.

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law ministers to the vigilant, not to those who sleep upon

perceptible rights").

The district court did not directly address the other

elements of the timeliness inquiry, but those elements weaken

Doral's position even further. The second and third elements,

which together involve the balance of harms, cut sharply against

Doral. By the time that Doral moved to intervene, the original

parties had forged a settlement of their dispute. Because Doral's

proposed intervention was aimed at disrupting that settlement, the

harm that intervention would have worked to the original parties

was manifest.5 See Greenblatt, 964 F.2d at 1232. One of the core

purposes of the timeliness requirement is to prevent disruptive,

late-stage intervention that could have been avoided by the

exercise of reasonable diligence. See United Nuclear Corp. v.

Cannon, 696 F.2d 141, 143 (1st Cir. 1982); see also Heartwood, 316

F.3d at 701 (stating that attempted post-settlement intervention

"strongly suggests" a tactical attempt to thwart the settlement

rather than to participate in the litigation).

Doral argues that both R&G and Freddie Mac knew of its

potential claim and that knowledge of another party's potential

claim vitiates any prejudice caused by the latter's tardiness in

5
The district court apparently recognized this fact. Its
order denying intervention stated that Doral should not be allowed
to intervene at "a crucial and decisive stage" following the
"months of time and effort" leading to the settlement.

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seeking intervention. That overstates the point. Acting in the

face of knowledge about a potential claim may make it more

difficult to show prejudice, but it does not excuse the claimant

from its obligation to proceed with reasonable dispatch to protect

its interests.

Doral's claim of prejudice arising out of the denial of

its motion to intervene is unconvincing. It asserts that the

settlement "substantially affects" its ability to obtain specific

performance as a remedy for Freddie Mac's alleged breach of the

interim servicing agreement.6 Appellant's Br. at 10. But any

disadvantage at which Doral now finds itself amounts to a self-

imposed wound. Had Doral acted with due diligence in pursuing

intervention, the perceived hardship would not exist. For obvious

reasons, a preventable hardship weighs less heavily in the balance

of harms. See Larson v. JPMorgan Chase & Co., 530 F.3d 578, 583-

84 (7th Cir. 2009); United States v. British Am. Tobacco Austl.

Servs., Ltd., 437 F.3d 1235, 1239 (D.C. Cir. 2006).

In any event, the denial of intervention will not cause

Doral significant prejudice. Doral still has an adequate remedy.

It may bring a separate action against R&G and/or Freddie Mac for

money damages. See, e.g., New Comm Wireless Servs., Inc. v.

SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (noting

6
The record contains evidence that, in late 2008, R&G
completed the sale of its servicing rights to a third party.

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availability of damages for tortious interference with contract

under local law); Soggs v. Crocco, 668 N.Y.S.2d 796, 797-98 (N.Y.

App. Div. 1998) (affirming damages award in lieu of specific

performance when performance had become impossible). The

availability of an adequate alternative remedy softens any

plausible claim of prejudice. N.Y. Chinese TV Programs, Inc. v.

U.E. Enters., Inc., 153 F.R.D. 69, 72 (S.D.N.Y. 1994) (explaining

that the existence of alternative remedies "is another commonly

accepted basis for denying intervention").

The fourth element of the timeliness inquiry requires an

assessment of whether any special circumstances exist.

Greenblatt, 964 F.2d at 1231. There are none here, save that the

posture of the case colors the circumstances. Requests for post-

settlement intervention are rarely granted. See Heartwood, 316

F.3d at 701; cf. Chase Manhattan Bank v. Corporacion Hotelera de

P.R., 516 F.2d 1047, 1050 (1st Cir. 1975) (describing proposed

post-judgment intervention as "unusual").

In this case, the four timeliness factors all point the

same way. Nevertheless, Doral attempts to blunt their combined

force by arguing that it was impossible to intervene more

expeditiously because it did not know the civil action number, the

identity of the judge, or certain other particulars concerning the

pending case. This argument is jejune.

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 Doral knew the identity of the parties and,

notwithstanding its suggestion to the contrary, it clearly knew

the court in which the case was pending. It also knew that its

prized contract had been derailed and that its servicing rights

thereunder were in grave danger. It had no reason to believe that

the existing parties would sacrifice their own parochial interests

in order to safeguard its interests. Last but not least, it knew

that temporary restraining orders have a short shelf life, see

Fed. R. Civ. P. 65(b)(2)-(3), and that, therefore, time was of the

essence.

If more were needed — and we doubt that it is — we note

that Doral had the same basic information available to it in mid-

July as on October 2 (when Doral's decision to intervene came to

fruition). At that juncture, it had no difficulty in tracking

down the case. It could have taken exactly the same steps in mid-

July.

To recapitulate, the record reflects undue delay by a

putative intervenor with knowledge that its rights were in

jeopardy. The record also reflects an unfavorable balance of

harms and an absence of ameliorating circumstances. Accordingly,

we conclude, without serious question, that the lower court did

not abuse its discretion in holding that Doral — a sophisticated

financial institution with lawyers on staff — waited too long to

seek intervention as of right. See, e.g., In re Lease Oil

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Antitrust Litig., 570 F.3d at 250; Greenblatt, 964 F.2d at 1231-

32; see also Heartwood, 316 F.3d at 701 ("Prompt [intervention]

after settlement does not indicate timeliness, particularly where

there is evidence that the intervenor should have known the suit

could impact its interest for some time prior to the

settlement.").

B. Permissive Intervention.

Permissive intervention is governed by the provisions of

Federal Rule of Civil Procedure 24(b). In this instance, we need

not rehearse the elements needed to succeed under that rule. It

suffices to say that when a putative intervenor seeks both

intervention as of right and permissive intervention, a finding of

untimeliness with respect to the former normally applies to the

latter (and, therefore, dooms the movant's quest for permissive

intervention). See Lucas v. McKeithen, 102 F.3d 171, 173 (5th

Cir. 1996); Greenblatt, 964 F.2d at 1230 n.2; Orange County v. Air

Cal., 799 F.2d 535, 538-39 (9th Cir. 1986).

One might think at first blush that a somewhat different

rule should apply because Doral's motion seeks permissive

intervention not for the purpose of being heard on the merits of

the dispute (although that may be its hidden agenda) but, rather,

for the stated purpose of challenging the sealing order. In an

appropriate case, that altered focus might make a difference. But

this is not such a case.

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 We begin with the basics. When a third party essays a

challenge to a sealing order, permissive intervention is the

procedurally correct vehicle. See Pub. Citizen v. Liggett Group,

Inc., 858 F.2d 775, 783 (1st Cir. 1988). The timeliness

requirement still pertains, but with a wrinkle: the time of

acquisition of knowledge of the sealing order itself, if different

from the time of acquisition of knowledge of the suit, must be

factored into the equation. See, e.g., id. at 785.

The district court did not separately address this aspect

of Doral's motion. This omission is understandable for two

reasons. First, Doral did not file a proposed complaint when

moving for intervention, though required to do so. See Fed. R.

Civ P. 24(c) (stating that a motion for intervention must "be

accompanied by a pleading that sets out the claim or defense for

which intervention is sought"). Second, Doral neither filed two

separate motions nor made two separate formulations of the

calculus of timeliness. It suggested instead, at least by

implication, that exactly the same temporal considerations

pertained to both branches of its motion to intervene.

Doral's briefs on appeal follow this pattern. They do

not separately discuss the timeliness of the two branches of its

motion. The absence of developed argumentation on an issue is

tantamount to abandonment of that issue. See, e.g., United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Doral has failed

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twice — once in the court below and again in this court — to offer

any argument that timeliness should be measured differently vis-à-

vis its request for permissive intervention. Consequently, we

treat the district court's finding of untimeliness with respect to

Doral's request to intervene as of right as applying with

undiminished force to Doral's request for permissive intervention.

That finding remains unimpugnable. As we explain below,

Doral's challenge to the sealing order, as framed, is inextricably

intertwined with its claim of an entitlement to intervene as of

right.

According to Doral's briefs, it sought access to the

sealed materials through permissive intervention for the sole

purpose of "know[ing] precisely what happened" so that it might

"secure a remedy" for itself. Appellant's Br. at 7. These

assertions fit tongue and groove with Doral's attempts to excuse

its tardiness in moving to intervene as of right because the

sealing order prevented it from acquiring precise knowledge about

the particulars of the litigation. We rejected that argument in

the Rule 24(a) context, see supra Part II(A), and it is no more

hardy in the Rule 24(b) context.

The discretion afforded to the district court under Rule

24, substantial in any event, is even broader when the issue is

one of permissive intervention. See Navieros Inter-Americanos,

120 F.3d at 320. Because it is readily apparent why the district

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court treated the two branches of Doral's motion to intervene as

a unit, we can proceed with appellate review. See Negrón-Almeda,

528 F.3d at 23 (explaining that when a trial court's order is

imprecise, the court of appeals frequently "can comb relevant

parts of the record to discern the authoring court's intention").

That review need not detain us. We think it follows from

what we have said that our analysis of Doral's attempt to

challenge the sealing order is enmeshed with our analysis of the

timeliness factors discussed above. See supra Part II(A). Doral

knew of the sealing order virtually from the moment that it

learned of the case itself, yet it delayed any challenge for some

two and one-half months. In practical terms, Doral postponed any

action until after the original parties had negotiated a

settlement; this is particularly important with respect to the

sealing order because confidentiality was something for which the

parties had bargained.

In addition, this aspect of Doral's motion exacerbates

the prejudicial effect of its attempt to intervene on the merits.

The purpose behind a motion to intervene is a relevant datum in

the timeliness analysis. Greenblatt, 964 F.2d at 1230-34; Pub.

Citizen, 858 F.2d at 786. Doral's request for permissive

intervention sought to reopen a settled case and reverse a sealing

order exclusively for its own benefit, not to vindicate a right of

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public access. Thus, the two prongs of Doral's attempt to waylay

the parties' confidential settlement merge into one.

In all events, Doral was not prejudiced by a lack of

access to the district court record. It had an opportunity to

obtain the documents it needed to evaluate its position by

executing a confidentiality agreement. Even though it

successfully negotiated the terms of that agreement, it refrained

from signing the document. The record contains no satisfactory

explanation as to why this sort of exchange would not have

satisfied Doral's need to see the relevant papers.7

We add a coda. Doral's motion to intervene for the

purpose of challenging the sealing order touches upon an issue of

transparency in the federal judicial system. Placing court

records out of public sight is a serious step, which should be

undertaken only rarely and for good cause. Sealing orders are not

like party favors, available upon request or as a mere

accommodation. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589,

597-99 (1978); In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir.

2005). In the first instance, however, decisions about whether or

7
We note that this avenue still remains open to Doral. The
district court expressly provided in its order that it was "not
preclud[ing] the parties and Doral from making any disclosure
agreements through good faith out-of-court negotiations." Freddie
Mac has offered to reveal the contents of the TRO and the
settlement agreement pursuant to a confidentiality agreement
(already negotiated between Doral and Freddie Mac), and Doral has
never requested any other documents from Freddie Mac.

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not to seal are committed to the sound discretion of the district

court. Nixon, 435 U.S. at 597-99; In re Globe Newsp. Co., 920

F.2d 88, 96 (1st Cir. 1990). Here, the absence of a timely

challenge to the sealing order precludes any full-blown inquiry

into the propriety of that order.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we discern no abuse of discretion in the district court's denial

of Doral's untimely motion to intervene.

Affirmed.

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