Bronx Conservatory of Music, Inc. v. Kwoka

Decision Date08 July 2021
Docket Number21-CV-1732 (AT) (BCM)
PartiesBRONX CONSERVATORY OF MUSIC, INC., Plaintiff, v. PHILLIP KWOKA AND THE BRONX SCHOOL FOR MUSIC, INC., Defendants.
CourtU.S. District Court — Southern District of New York
ORDER

BARBARA MOSES, United States Magistrate Judge.

On May 25, 2021, defendants Philip Kwoka and the Bronx School for Music, Inc. (Bronx School) filed an answer and counterclaim (Ans.) (Dkt. No. 26), under seal, without contemporaneously filing a letter-motion requesting a sealing order as required by § IV(A)(ii) of Judge Torres's Individual Practices and § 3 of my Individual Practices. By Order dated May 26, 2021 (Dkt. No. 28), I directed defendants to file a letter-motion requesting a sealing order or, in the alternative, to re-file their pleading on the public docket. On June 15, 2021, plaintiff Bronx Conservatory of Music, Inc. (Bronx Conservatory) filed a letter-motion (Pl. Ltr.) (Dkt No. 30) in which it explained that the sealed filing was done at its request and sought leave to file a redacted version of its opponents' answer and counterclaim while maintaining the unredacted version under seal. Together with its letter-motion, plaintiff re-filed the answer and counterclaim in two versions: (i) with the full text visible but highlighted to show the proposed redactions (Dkt. No. 31 filed under seal); and (ii) in the redacted form that plaintiff proposes (Dkt. No. 33, filed in public view). For the reasons that follow, the motion will be denied.

Background

In its complaint (Compl.) (Dkt. No. 1), Bronx Conservatory, a music school, alleges that Kwoka, its former Executive Director took confidential information with him (on a Bronx Conservatory laptop) when he left his employment in 2020, and thereafter used that information to establish a competing music school - Bronx School - and to lure away both students and faculty from Bronx Conservatory. Plaintiff asserts claims against both defendants for misappropriation of trade secrets, copyright infringement, unfair competition, conversion, and unjust enrichment, and against Kwoka for breach of fiduciary duty. Compl. ¶¶ 26-62.

In their responsive pleading, defendants deny the material allegations of the complaint, interpose numerous affirmative defenses, and assert five counterclaims: for a declaratory judgment that plaintiff's copyrights are invalid; for a declaratory judgment of non-infringement of copyright; for a declaratory judgment of non-infringement of trade secrets; for "sexual harassment of Philip Kwoka"; and for violations of the Fair Labor Standards Act. Ans. ¶¶ 10-56. It is the fourth counterclaim, for sexual harassment, that plaintiff proposes to redact almost in its entirety - including, apparently, its caption, quoted in the preceding sentence.[1] Plaintiff argues that the material allegations comprising that sexual harassment counterclaim should be hidden from public view because they are "scandalous and unsupported," because plaintiff believes the counterclaim was asserted "without legitimate purpose, and solely for its in terrorem effect" and because it is "unrelated to the case-in-chief" and thus this Court is "not likely to have pendent jurisdiction." Pl. Ltr. at 3-4. Although defendants apparently told plaintiff that they would oppose the motion to seal, id. at 2, they have not done so.

On June 15, 2021 - the same day it filed its letter-motion seeking leave to seal the unredacted version of the answer and counterclaims - plaintiff replied to the counterclaims (Reply) (Dkt. Nos. 29, 32), denying all of defendants' material allegations and asserting, as one of its affirmative defenses, that this Court lacks jurisdiction over the fourth and fifth counterclaims. Reply ¶ 58. However, plaintiff has not made any jurisdictional (or other) motion to dismiss the fourth counterclaim.

Analysis

Under Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 119-20 (2d Cir. 2006), and its progeny, I must engage in a three-step analysis of plaintiff's request. First, I must determine whether the document at issue is a "judicial document," as to which both a common-law and a constitutional presumption of public access applies. Lugosch, 435 F.3d at 119. "In order to be designated a judicial document, 'the item filed must be relevant to the performance of the judicial function and useful in the judicial process.'" Id. (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). The parties' pleadings, including answers and counterclaims, are unquestionably judicial documents. Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016); Cavender v. United States Merch. Marine Acad., 2020 WL 3304538, at *2 (E.D.N.Y. June 18, 2020); Morgan Art Found. Ltd. v. McKenzie, 2020 WL 1130699, at *2 (S.D.N.Y. Mar. 6, 2020); Accent Delight Int'l Ltd. v. Sotheby's, 394 F.Supp.3d 399, 416 (S.D.N.Y. 2019); Guzik v. Albright, 2018 WL 6011612, at *1 (S.D.N.Y. Nov. 16, 2018); Under Seal v. Under Seal, 273 F.Supp.3d 460, 469 (S.D.N.Y. 2017).

Since the challenged document is a "judicial document," I must next determine how much weight to assign to the presumption of access. See Lugosch, 435 F.3d at 119. "[T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts. Generally, the information will fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance." Id. (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). The weight of the presumption is "heavy," Under Seal, 273 F.Supp.3d at 470, when a party seeks to seal a pleading, which is a "core" judicial document. Morgan Art Found. Ltd., 2020 WL 1130699, at *2 (denying counterclaim defendants' motion to seal unredacted version of claims brought by artist's estate accusing them of defrauding elderly and vulnerable artist). Moreover, in this case the allegations sought to be redacted are neither peripheral nor tangential to the fourth counterclaim but, rather, lie at its "very heart," Accent Delight Int'l, 394 F.Supp.3d at 417 (quoting Under Seal, 273 F.Supp.3d at 472), such that permitting only the redacted version to remain unsealed would keep the public wholly in the dark as to the nature of a claim that has been asserted by Kwoka, denied by Bronx Conservatory, and is now pending before this Court for resolution. "In such situations, the public cannot 'have confidence in the [Court's] administration of justice' without being able to see the specific allegations underlying the case." Id. (quoting Bernstein, 814 F.3d at 139) (denying Sotheby's motion to seal unredacted version of complaint accusing Sotheby of aiding and abetting fraud by a non-party art dealer where the redactions concealed plaintiff's key allegations concerning the allegedly fraudulent transactions facilitated by Sotheby's).

Finally, I must determine whether the party seeking to keep the judicial document under seal - here, Bronx Conservatory - has met its burden of demonstrating "countervailing factors," "competing considerations," or "higher values," Lugosch, 435 F.3d at 120, 124, sufficient to overcome the presumption of access. Neither "conclusory assertion[s]" of harm nor "[b]road and general findings by the trial court" will suffice. In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987). Rather, a judicial document may be sealed only if "specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Lugosch, 435 F.3d at 120 (quoting In re N.Y. Times Co., 828 F.2d at 116). I cannot make those findings here.

Bronx Conservatory does not cite (and this Court has not found) any case, in this jurisdiction or elsewhere, in which an employer accused of sexual harassment has succeeded in sealing the pleading containing that accusation on any of the grounds asserted here. To the contrary: it is well-settled that "[g]eneralized concern[s] of adverse publicity" and reputational injury - the only potential harms articulated in plaintiffs letter-motion - cannot justify an order sealing a core judicial document. Bernsten v. O'Reilly, 307 F.Supp.3d 161, 169 (S.D.N.Y. 2018) (quoting Prescient Acquisition Grp., Inc. v. MJ Pub. Tr., 487 F.Supp.2d 374, 375 (S.D.N.Y. 2007)) (denying defendant's motion to seal confidential agreements to settle prior sexual harassment claims made against him); see also Doe v. City of New York, 2019 WL 4392533, at *2 (S.D.N.Y. Sept. 13, 2019) (denying motion by defendants in sexual assault case to seal summary judgment materials detailing unadjudicated allegations concerning prior assaults by defendant Porter). As the Court of Appeals explained in Lugosch, "[T]he natural desire of parties to shield prejudicial information contained in judicial records . . . cannot be accommodated by courts without seriously undermining the tradition of an open judicial system." 435 F.3d at 123 n.5 (quoting Brown & Williamson Tobacco v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983)). Thus, "the courts generally reject negative publicity 'as a basis for overcoming the strong presumption of public access to [the allegedly prejudicial] items.'" Julian v. Metro. Life Ins. Co., 2020 WL 5913739, at *4 (S.D.N.Y. Oct. 6, 2020) (quoting Centauri Shipping Ltd. v. W. Bulk Carriers KS, 528 F.Supp.2d 197, 205 (S.D.N.Y. 2007)); Under Seal, 273 F.Supp.3d at 471 (collecting cases).[2]

Similarly plaintiff's assertion that Kwoka's allegations are false cannot justify an order sealing those allegations. Whether they are true or false is precisely the question that the parties have placed before ...

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