                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     _____________

                          No. 18-1951
                         ____________

                        In re: A C & S INC;
          In re: Armstrong World Industries, Inc., et al;
               In re: Combustion Engineering, Inc.;
               In re: The Flintkote Company, et al;
           In re: Kaiser Aluminum Corporation, et al;
                    In re: Owens Corning, et al;
             In re: U.S. Mineral Products Company;
                   In re: USG Corporation, et al;
                  In re: W.R. Grace & Co., et al,
                                                  Debtors

          Motions Seeking Access to 2019 Statements

      Ford Motor Company; Honeywell International, Inc.
                                              Appellants

                       ______________

           Appeal from the United States District Court
                    for the District of Delaware
(District Court Nos. 1:16-cv-01078, 1:16-cv-01079, 1:16-cv-01080
  1:16-cv-01084, 1:16-cv-01092, 1:16-cv-01093, 1:16-cv-01094,
  1:16-cv-01096, 1:16-cv-01145, 1:16-cv-01146, 1:16-cv-01104,
   1:16-cv-01147, 1:16-cv-01154,1:16-cv-01151, 1:16-cv-01152,
   1:16-cv-01155, 1:16-cv-1153, 1:16-cv-01150, 1:16-cv-01149,
  1:16-cv-01144, 1:16-cv-01105, 1:16-cv-01140, 1:16-cv-01141,
  1:16-cv-01142, 1:16-cv-01143, 1:16-cv-01101, 1-16-cv-01102,
  1:16-cv-01106, 1:16-cv-01099, 1:16-cv-01100, 1:16-cv-01103,
  1:16-cv-01126, 1:16-cv-01129, 1:16-cv-01127, 1:16-cv-01128,
  1:16-cv-01130, 1:16-cv-01131, 1:16-cv-01132, 1:16-cv-01133,
 1:16-cv-01134, 1:16-cv-01136, 1:16-cv-01135, & 1:16-cv-01137)
               District Judge: Hon. Leonard P. Stark
                          ______________
                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     May 24, 2019
                                    ______________

             Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

                             (Opinion filed: August 19, 2019)
                                     ____________

                                        OPINION
                                      ____________

McKEE, Circuit Judge.

       Major asbestos defendants, Honeywell International Inc. and Ford Motor

Company (together “Appellants”), appeal the District Court’s order affirming the

Bankruptcy Court’s denial of unconditional access to thousands of exhibits (the “2019

Exhibits”) that were submitted to the Bankruptcy Court pursuant to Federal Rule of

Bankruptcy Procedure 2019 in connection with administering nine asbestos bankruptcies.

The Bankruptcy Court granted Appellants access to the relevant documents for a period

of three months, subject to certain conditions consistent with those imposed in similar

cases. The Bankruptcy Court concluded that providing unlimited access to the 2019

Exhibits would pose an undue risk of identity theft and exposure to private medical

information. The District Court affirmed the Bankruptcy Court’s decision. For the

reasons that follow, we will affirm the District Court’s order.1





  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1334(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             2
       “The common law presumption of access to judicial records is codified in § 107

of the Bankruptcy Code.”2 That provision established a broad right of public access to all

papers filed in a bankruptcy case, subject to certain limited exceptions. In 2005,

Congress added subsection (c) which specifically allows the bankruptcy court to protect

individuals from disclosure of certain “types of information to the extent the court finds

that disclosure . . . would create undue risk of identity theft or other unlawful injury to the

individual or the individual’s property.”3

       The Supreme Court, in Taggart v. Lorenzen, articulated a longstanding

interpretive principle: “[w]hen a statutory term is obviously transplanted from another

legal source, it brings the old soil with it.”4 There, the Court confirmed that common law

principles remain critical to statutory interpretation and application.5

       In In re Orion Pictures Corp., the Second Circuit Court of Appeals stated that

§107 codified the common law, and evidenced Congress’s strong desire to preserve the

public’s right of access to judicial records in bankruptcy proceedings.6 We agree.

Nevertheless, Congress specifically circumscribed that broad right by codifying the




2
  In re Motions Seeking Access to 2019 Statements, 585 B.R. 733, 746 (D. Del. March 27,
2018).
3
  11 U.S.C. § 107(c)(1).
4
  139 S. Ct. 1795, 1801 (2019) (internal citations and quotation marks omitted).
5
  Id.; see also Evans v. United States, 504 U.S. 255, 259–60 (1992) (explaining when
Congress codifies the common law, the latter informs construction of the statute);
Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (stating “when a statute covers an
issue previously governed by the common law, we interpret the statute with the
presumption that Congress intended to retain the substance of the common law.”).
6
  21 F.3d 24, 26 (2d Cir. 1994).
                                              3
common law principle that the public’s right of access to judicial records is not absolute.7

In doing so, Congress specifically authorized courts to protect “any means of

identification.”8 Moreover, “[e]very court has supervisory power over its own records

and files, and access has been denied where court files might have become a vehicle for

improper purposes.”9 We review the District Court’s decision to affirm the order of the

Bankruptcy Court to protect judicial records from public disclosure under the common

law or §107 for abuse of discretion.10 The United States Supreme Court has “emphasized

that the word ‘may’ clearly connotes discretion.”11 The District Court concluded that the

Bankruptcy Court did not abuse its discretion. We agree.

       We also conclude that the District Court properly rejected Appellants’ First

Amendment argument. That argument was waived when Appellants failed to support

their claim for access under the First Amendment beyond two passing references – one in

their brief and one at oral argument. “An issue is waived unless a party raises it in its

opening brief, and for those purposes a passing reference to an issue . . . will not suffice

to bring that issue before this court.”12




7
  See Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597–98 (1978).
8
  11 U.S.C. §107(c)(1)(A).
9
  Nixon, 435 U.S. at 598.
10
   See LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 219–20 (3d Cir. 2011).
11
   Halo Elec., Inc. v. Pulse Elec., Inc., 136 S.Ct. 1923, 1931 (2016) (internal quotation
marks omitted).
12
   Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F. 3d 375, 398 (3d Cir. 1994)
(internal quotation marks omitted).
                                              4
         Accordingly, for the reasons set forth herein, and in the District Court’s very

thorough and well-reasoned opinion,13 we will affirm the District Court’s order affirming

the ruling of the Bankruptcy Court.




13
     See In re Motions Seeking Access to 2019 Statements, 585 B.R. 733.
                                               5
