Smolinski et al v. Ruben & Michelle Enterprizes, Inc. et al
OPINION AND ORDER denying 7 Motion to file settlement agreement under seal. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
STEPHANIE SMOLINSKI and
Case No. 16-cv-13612
Paul D. Borman
United States District Judge
RUBEN & MICHELLE ENTERPRISES
INC. and RUBEN BARGAS,
OPINION AND ORDER DENYING JOINT MOTION
TO FILE SETTLEMENT AGREEMENT UNDER SEAL (ECF NO. 7)
Plaintiffs filed this putative collective action on October 10, 2016, claiming that
Defendants violated the Fair Labor Standards Act (“FLSA”) by failing to pay them time and
a half for overtime work. The parties now inform the Court that they have reached a
settlement of the Plaintiffs’ claims and seek permission to file the settlement agreement under
seal and to keep the terms of the settlement confidential. ECF No. 7, Joint Motion to File
Settlement Agreement Under Seal. The Court has determined that oral argument is not
necessary to assist the Court in resolving the motion. See E.D. Mich. L.R. 7.1(f). For the
reasons that follow, the Court DENIES the motion.
The settlement of Plaintiff’s FLSA claims in this action, as the parties acknowledge
in their motion, requires court approval to ensure protection of an employee’s fundamental
right to a fair wage. See Steele v. Staffmark Investments, LLC, 172 F. Supp. 3d 1024, 1026
(W.D. Tenn. 2016) (noting that the Sixth Circuit has not definitively ruled on the issue but
agreeing with those circuits that have required court approval, and concluding that “based
on the unique purpose of the FLSA and the unequal bargaining power between employees
and employers . . . FLSA settlements require approval either by the Department of Labor or
a court”); Williams v. Alimar Security, Inc., No. 13-cv-12732, 2016 WL 6405798, at *2
(E.D. Mich. Oct. 31, 2016) (“Whether or not a lawsuit proceeds as a collective action, most
courts agree that “‘employees’ claims under the FLSA are non-waivable and may not be
settled without supervision of either the Secretary of Labor or a district court.’”) (Citing
Snook v. Valley Ob-Gyn Clinic, P.C., No. 14-cv-12302, 2015 WL 144400, at *1 (E.D. Mich.
Jan. 12, 2015) (Snook II) (quoting Gentrup v. Renovo Servs., LLC, No. 1:07-cv-430, 2011
WL 2532922, at *2 (S.D. Ohio Jun 24, 2011) (citing Lynn’s Food Stores, Inc. v. United
States, 679 F.2d 1350, 1352-53 (11th Cir. 1982)); Snook, 2015 WL 144400, at *1 (“‘As a
general rule, employees’ claims under the FLSA are non-waivable and may not be settled
without supervision of either the Secretary of Labor or a district court.’”) (citing Gentrup,
2011 WL 2532922, at *2 (citing Lynn’s, 679 F.2d at 1352–53). “‘The proper procedure for
obtaining court approval of the settlement of FLSA claims is for the parties to present to the
court a proposed settlement, upon which the district court may enter a stipulated judgment
only after scrutinizing the settlement for fairness.’” Snook, 2015 WL 144400, at *1 (citing
Gentrup, 2011 WL 2532922, at *2).1
The parties do not seek in the motion presently before the Court substantive approval of the
underlying settlement and indeed provide the Court with no information regarding the terms of the
While in most cases “a settlement agreement is not a public document,” courts have
recognized that “FLSA cases are different.” Joo v. Kitchen Table, Inc., 763 F. Supp. 2d 643,
644 (S.D.N.Y. 2011). Court approval of a FLSA settlement agreement is viewed as a
“judicial act” that subjects the agreement to the same presumption of public access as any
“judicial document.” Joo, 763 F. Supp. 2d at 644 (observing that “[a]ny document reflecting
the terms of the settlement and submitted to the Court is a ‘judicial document’ to which the
presumption of public access applies”) (alteration in original) (internal quotation marks and
citation omitted). “[T]hose courts that have expressly considered the question have held
overwhelmingly, if not unanimously, that the presumption of public access applies to FLSA
settlements.” Wolinsky v. Scholastic Inc., 900 F. Supp. 3d 332, 340 (S.D.N.Y. 2012)
The Sixth Circuit has recently emphasized the heavy burden that must be met by a
litigant in any judicial proceeding seeking to overcome the presumption of public access to
court documents: “The burden is a heavy one: Only the most compelling reasons can justify
non-disclosure of judicial records.” Shane Grp. Inc. v. Blue Cross Blue Shield of Michigan,
825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks and citations omitted).
Specifically, in scrutinizing FLSA settlements, courts have either per se prohibited
confidentiality provisions that would shield the terms of the settlement from public view or
at the very least examined closely the purported justification for such a provision on a case
settlement and hence no basis on which the Court could make a determination as to whether the
proposed settlement is fair and reasonable, even apart from the confidentiality provision.
by case basis.
See, e.g. Staffmark, 172 F. Supp. 3d at 1031 (observing that “[a]
confidentiality provision in an FLSA settlement agreement both contravenes the legislative
purpose of the FLSA and undermines the Department of Labor’s regulatory effort to notify
employees of their FLSA rights” and denying parties’ joint motion for approval of settlement
containing a confidentiality provision); Snook v. Valley Ob-Gyn Clinic, P.C., No. 14-cv12302, 2014 WL 7369904, at *2 (E.D. Mich. Dec. 29, 2014) (Snook I) (noting that some
courts have held that confidentiality provisions “per se contravene the FLSA’s objective of
transparency,” while others “scrutinize confidentiality agreements” to determine whether
there is sufficient justification to overcome “the strong presumption of public access that
attaches to such judicial documents”).
“If the parties want the court to approve a settlement agreement with a confidentiality
provision, it is their burden to articulate a real and substantial interest that justifies depriving
the public of access to the records that inform [the court’s] decision-making process.”
Williams, 2016 WL 6405798, at *3 (rejecting a proposed FLSA settlement agreement that
contained a confidentiality provision) (internal quotation marks and citations omitted)
(alteration in original). Any party seeking to seal a FLSA settlement agreement “bears the
burden of overcoming the strong presumption in favor of access by articulating compelling
reasons supported by specific factual findings.” Duran v. Hershey Co., No. 14-cv-01184,
2015 WL 4945931, at *2 (N.D. Cal. Aug. 10, 2015) (internal quotation marks and citation
The sole basis proffered by the parties in their joint request to seal the settlement
agreement is that “the bargained-for confidentiality of the agreement would be defeated if
the Parties were required to publicly file their settlement for approval.” ECF No. 7, Jt. Br.
at 10. Courts have routinely rejected the argument that sealing is justified because
“[c]onfidentiality is an essential component of the agreement.” Joo, 763 F. Supp. 2d at 648
(internal quotation marks and citation omitted) (alteration in original). See also Snook I,
2014 WL 7369904, at *3 (“[C]ourts have ‘roundly rejected’ the argument that confidentiality
provisions in settlement agreements are a sufficient interest to overcome the presumption of
public access.”) (Citing Joo, 763 F. Supp. 2d at 648); Bouzzi v. F&J Pine Restaurant, LLC,
841 F. Supp. 2d 635, 640 (E.D.N.Y. 2012) (“[C]ourts in this circuit, having encountered the
oft repeated argument that confidentiality is a material term of settlement as a justification
for sealing an FLSA, have ‘roundly rejected it.’”) (citing Joo, 763 F. Supp. 2d at 648);
Duran, 2015 WL 4945931, at *2 (rejecting the argument that “sealing is warranted because
the settlement contains ‘heavily negotiated’ confidentiality provisions”); Green v. Hepaco,
LLC, No. 13-cv-02496, 2014 WL 2624900, at *4 (W.D. Tenn. June 12, 2014) (“[C]ourts
have roundly rejected the argument that confidentiality provisions are essential and material
components of FLSA settlement agreements without which there would be no incentive to
settle costly litigation.”) (collecting cases) (internal quotation marks and citation omitted).
The reason for this policy of public access to FLSA settlements derives from the legislative
intent of the FLSA:
[T]he legislative intent of the FLSA is to encourage employers to enter into
wage settlements; however, confidentiality is not the means by which the
FLSA encourages settlements. To the contrary, confidentiality contravenes the
legislative intent of the FLSA. Rather than rely on confidentiality, Congress’
intent was to encourage FLSA settlements with the waiver provision found in
29 U.S.C. § 216(c), which grants an enforceable release to employers from any
right an employee may have to unpaid overtime compensation, and liquidated
damages, when an FLSA settlement agreement is approved.
Bouzzi, 841 F. Supp. 2d at 640. “The presumption of public access to settlements of FLSA
actions is particularly strong. . . . Absent an extraordinary reason, the court cannot seal such
records.” Tran v. Thai, No. 08-cv-3650, 2009 WL 2477653, at *1 (S.D. Tex. Aug. 12, 2009).
In support of their request to seal, the parties cite one FLSA case from this district,
Lakosky v. Discount Tire Co., Inc., No. 14-13362, 2015 WL 4617186 (E.D. Mich. July 31,
2015), in which it appears that the court did permit a FLSA settlement agreement to be filed
However, there was no discussion in that case regarding the issue of
confidentiality and no evidence that the issue was even raised. Indeed it appears that the
joint motion to seal in that case, which contained no discussion of the relevant and widely
acknowledged precedent emphatically rejecting such sealing, was approved by the Court in
a text-only Order. Given the absence of any analysis supporting the order to seal in Lakosky,
this Court finds that decision inapt and unpersuasive. See Bouzzi, 841 F. Supp. 2d at 638
(“District courts in this circuit, as well as in others, have declined to follow cases that granted
requests to seal FLSA settlement but failed to provide reasons or authority for so doing.”);
Duran, 2015 WL 4945931, at *2 (“While some district courts have indeed permitted FLSA
settlement agreements to be filed under seal, those decisions are generally threadbare and
uniformly fail to acknowledge the considerable body of law counseling against sealing.”).
The great weight of authority, as discussed above, holds that sealing a FLSA
settlement rarely, if ever, will be shown to outweigh the public right to access of judicial
documents. Armenta v. Dirty Bird Grp., LLC, No. 13-cv-4603, 2014 WL 3344287, at *3
(S.D.N.Y. June 27, 2014) (finding the parties’ attempt to “settle with judicial approval so
long as the public is kept in the dark as to certain facts . . . [to be] contrary to public policy
and the law”) (alteration added).
Plaintiffs’ counsel in this case, whose firm also served as counsel for the plaintiffs in
Williams, supra, should have been well aware of this persuasive line of authority rejecting
confidentiality provisions in FLSA settlement agreements, which was followed by Judge
Parker in Williams and has been followed by the great majority courts that have considered
the sealing issue. The parties in this case first attempted to present their “confidential
settlement” to the Court via email correspondence and, when directed to file a formal motion
if they wished the Court to take action, the parties filed the instant joint motion to seal, which
contains no discussion whatever of this robust line of authority.
Accordingly, the Court DENIES the joint request to seal the settlement agreement.
The parties may renegotiate a settlement agreement that does not requiring sealing and may
present it to the Court through a formal joint motion for approval, setting forth specific
reasons demonstrating that the settlement is a “fair and reasonable resolution of a bona fide
dispute over FLSA provisions,” on or before April 3, 2017. Otherwise a Scheduling Order
will issue and this case will proceed forward.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 3, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney
or party of record herein by electronic means or first class U.S. mail on March 3, 2017.
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