AKISHEV et al v. KAPUSTIN et al

Filing 644

ORDER granting 626 Motion to Seal. Signed by Magistrate Judge Ann Marie Donio on 12/8/2022. (alb, )

Case 1:13-cv-07152-NLH-AMD Document 644 Filed 12/08/22 Page 1 of 8 PageID: 14269

[D.I. 626]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ARDAK AKISHEV, et al.,

Civil No. 13-7152 (NLH/AMD)

Plaintiffs,
v.
SERGEY KAPUSTIN, et al.,
Defendants.

ORDER TO SEAL
This matter comes before the Court by way of motion [D.I.
626] filed by Defendants Empire United Lines, Co., Inc. and Michael
Hitrinov, pursuant to Local Civil Rule 5.3 for an order to seal a
transcript

which

memorializes

the

terms

of

a

settlement

in

principle between the parties and the parties’ assent to the
settlement terms. The Court has considered Defendants’ submission,
no opposition having been filed, and decides this matter pursuant
to FED. R. CIV. P. 78. For the reasons set forth herein, the motion
to seal is granted.
This case has an extensive procedural history, and the
Court shall set forth herein only those facts relevant to the
present motion. The Court conducted a settlement conference on

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August 31, 2022, at which time Defendants reached a settlement in
principle
Alexey
Evgeniy

with

Plaintiffs

Batalov,

Igor

Kondratuk,

Ardak

Glazunov,

Eduard

Akishev,
Andrey

Lisitsyn,

Zhandos

Kirik,

Viktor

Aliakparov,

Natalia

Maniashin,

Kirik,
Mikhail

Matveev, Yuriy Yamkoviy, Alla Yamkovaya, Irina Glazunova, Evgeniy
Borzenko,

Arkadiy

Kolbin,

Vladimir

Lukyanov,

Alexander

Pukir,

Evgeniy Telin, Alexander Zhilinsky, Elena Zvereva and Mikhail
Zverev. (See Cert. of Ely Goldin, Esq. (hereinafter, “Goldin
Cert.”) [D.I. 626-1], Sept. 14, 2022, pp. 1-2, ¶ 2.) Although the
settlement conference was not conducted on the record, once the
parties reached an agreement, they requested that their agreement
in principle be placed on the record pending execution of a written
document. (Id. at p. 2, ¶ 4.) One of the material terms of the
settlement required the parties to keep the terms of the settlement
confidential. (Id. at p. 2, ¶ 3.) A transcript containing the terms
of the settlement has been filed on the docket under temporary
seal, and Defendants now seek to seal the transcript.
Local Civil Rule 5.3 governs a litigant’s request to
seal documents filed with the Court. L. CIV. R. 5.3(c)(3). Under
the Local Rule, a party seeking to seal documents or to otherwise
restrict public access must demonstrate: “(a) the nature of the
materials or proceedings at issue; (b) the legitimate private or
public interest which warrants the relief sought; (c) the clearly
defined and serious injury that would result if the relief sought
2

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is not granted; (d) why a less restrictive alternative to the
relief sought is not available; (e) any prior order sealing the
same materials in the pending action; and (f) the identity of any
party or nonparty known to be objecting to the sealing request.”
L. CIV. R. 5.3(c)(3). For the reasons that follow, the Court finds
that these factors weigh in favor of sealing the transcript setting
forth the agreement in principle of the parties. 1
In considering the public interest factor under Local
Civil Rule 5.3(c), the Court recognizes that “the public’s common
law right of access to judicial proceedings and records . . . ‘is
beyond dispute.’” Littlejohn v. Bic Corp., 851 F.2d 673, 677-78
(3d Cir. 1988)(quoting Publicker Indus., Inc. v. Cohen, 733 F.2d
1059, 1066 (3d Cir. 1984)). As the Third Circuit has stated, “‘the
court’s approval of a settlement or action on a motion are matters
which the public has the right to know about and evaluate.’” LEAP
Sys.,

Inc.

v.

MoneyTrax,

Inc.,

638

F.3d

216,

220

(3d

Cir.

2011)(quoting Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel
Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). “Thus,
‘settlement documents can become part of the public component of
a trial’ under either of two circumstances: (1) ‘when a settlement
As Defendants represent that there are no prior orders sealing
the same materials in this action, and they identify no party or
non-party known to be objecting to the sealing request, the Court
considers herein only the first four factors under Local Civil
Rule 5.3(c)(3) in deciding the instant motion. (See Goldin Cert.,
p. 4, ¶¶ 12-13.)

1

3

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is filed with a district court;’ and (2) ‘when the parties seek
interpretative assistance from the court or otherwise move to
enforce a settlement provision.’” Id. (quoting Enprotech Corp. v.
Renda, 983 F.2d 17, 20 (3d Cir. 1993)). Although “this presumption
is not absolute and may be rebutted[,]” Tatum v. Chrysler Grp.,
LLC, No. 10-4269, 2013 WL 12152408, at *2 (D.N.J. Aug. 19, 2013)
(noting that a “[c]ourt may deny public access to judicial records
if a movant can show good cause for keeping documents under seal”),
if parties “ask a judge to decide their dispute, the public should
have access to the information forming the basis of the judge’s
decision unless shown good cause.” Brock v. Vanguard Grp., Civil
No. 16-6281, 2017 WL 11507659, at *4 (E.D. Pa. July 27, 2017).
Here, the parties placed the terms of the settlement on the record
to confirm the material terms until the parties were able to reduce
the agreement to writing. However, the parties have not filed the
settlement agreement with the Court nor asked for the Court to
interpret the terms of the agreement or otherwise enter a ruling
with

respect

to

the

agreement.

Consequently,

there

is

no

presumptive right of public access to such information, and the
Court finds that the public interest factor does not weigh against
granting the motion to seal.
The Court next considers the private interest factor
under Local Civil Rule 5.3(c). A party may have a significant
privacy

interest

when

it

“would
4

not

have

entered

into

the

Case 1:13-cv-07152-NLH-AMD Document 644 Filed 12/08/22 Page 5 of 8 PageID: 14273

settlement agreement[] but for [an] assurance of confidentiality.”
See LEAP Sys., 638 F.3d at 222 (emphasis in original). Moreover,
the Third Circuit has stated that it is “more likely to require
disclosure

when

‘a

party

benefitting

from

the

order

of

confidentiality is a public entity or official,’ or when the
judicial record ‘involves matters of legitimate public concern.’”
Id. (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778,
788 (3d Cir. 1994)). In this regard, “‘[c]ircumstances weighing
against confidentiality exist when confidentiality is being sought
over information important to public health and safety, and when
the sharing of information among litigants would promote fairness
and efficiency.’” Id. (quoting Pansy, 23 F.3d at 777). One of the
material terms of the settlement agreement at issue here expressly
requires

confidentiality,

thereby

demonstrating

the

parties’

intent to maintain the confidentiality of the settlement terms.
Further,

this

case

involves

private

litigants.

The

private

interest factor thus weighs in favor of granting the motion to
seal.
Turning

to

the

injury

factor

of

Local

Civil

Rule

5.3(c)(3), the Court may seal information upon a “particularized
showing that disclosure will cause a ‘clearly defined and serious
injury to the party seeking closure.’” Securimetrics, Inc. v.
Iridian Techs., Inc., No. 03-4394, 2006 WL 827889, at *2 (D.N.J.
Mar.

30,

2006)(quoting

Pansy,
5

23

F.3d

at

786).

“‘[B]road

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allegations

of

harm,

unsubstantiated

by

specific

examples

or

articulated reasoning[,]” will not suffice to seal a judicial
record. Id. “[F]ailure to put forth a specific and clearly defined
risk of injury is fatal to any motion to seal.” Reilly v. Vivint
Solar, Nos. 18-12356, 16-9446, 2021 WL 248872, at *5 (D.N.J. Jan.
26, 2021)(rejecting as “conclusory” defendant’s “assertion that
the

very

nature

of

the

information

in

question

would

put

[Defendant] at [a] competitive disadvantage in the solar industry
and cause financial harm” and stating that “[t]he allegedly obvious
and inherent harm that would come from public access to these
documents may be clear to Defendant, but it is not clear to the
Court, and it is not the Court’s duty to manufacture such an
explanation on its own”). The Court finds here that Defendants
fail to specify a “clearly defined and serious injury” that would
result from disclosure of the terms of the settlement agreement.
Defendants assert only that they “would be injured if the material
terms of the settlement disclosed in the Settlement Transcript
were not redacted and sealed, because public disclosure of that
information would constitute [a] breach of the parties’ settlement
agreement.” (Goldin Cert., p. 3, ¶ 10.) This assertion of harm,
however, is too vague to meet Defendants’ burden of demonstrating
injury

with

the

requisite

particularity

to

warrant

sealing

portions of the settlement agreement. As such, Defendants fail to
make a sufficient showing of injury that will occur if the terms
6

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of the settlement agreement are placed on the public docket, and
the injury factor thus weighs against sealing.
Finally, the Court considers under Local Civil Rule
5.3(c) whether less restrictive alternatives are available. The
Court finds that there are no less restrictive alternatives given
that the transcript consists almost entirely of the material terms
of the settlement, rendering redaction an ineffective alternative.
This

factor,

therefore,

supports

sealing

of

the

settlement

transcript.
Balancing the factors under Local Civil Rule 5.3(c), the
Court finds that Defendants have met their burden of demonstrating
that the transcript from August 31, 2022, in which the parties
memorialized the material terms of their settlement in principle
pending execution of a written settlement agreement, should be
sealed.

While

Defendants

have

not

identified

injury

from

disclosure of the terms with the requisite specificity, the Court
finds that the private interest factor, the public interest factor,
and the lack of a less restrictive alternative all support sealing.
The motion to seal will therefore be granted.
CONSEQUENTLY, for the reasons set forth herein, and for
good cause shown:
IT IS on this 8th day of December 2022,
ORDERED that the motion to seal [D.I. 626] shall be, and
is hereby, GRANTED; and it is further
7

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ORDERED that the transcript [D.I. 625] from August 31,
2022 shall remain under seal.

cc: Hon. Noel L. Hillman

s/ Ann Marie Donio____________
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE

8