A.S. v. HARRISON TOWNSHIP BOARD OF EDUCATION et al

Filing 207

OPINION. Signed by Judge Noel L. Hillman on 5/8/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HONORABLE NOEL L. HILLMAN

A.S., a minor, individually
and by his parents H.S. and
M.S.,

CIVIL ACTION NO. 14-147
(NLH/KMW)

Plaintiffs,

OPINION

v.
HARRISON TOWNSHIP BOARD OF
EDUCATION and EAST GREENWICH
SCHOOL DISTRICT,
Defendants.

APPEARANCES:
JAMIE EPSTEIN, ESQ.
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Counsel for Plaintiff
PARKER McCAY, P.A.
By: Brett Gorman, Esq.
9000 Midlantic Drive, Suite 300
Mount Laurel, New Jersey 08054
Counsel for Defendant Harrison Township Board of Education
COOPER LEVENSON, P.A.
By: William S. Donio, Esq.
1125 Atlantic Avenue, Third Floor
Atlantic City, New Jersey 08401
Counsel for Defendant East Greenwich School District

HILLMAN, United States District Judge:
Presently before the Court are Plaintiffs’ Motions to Seal
[Docket #s 184, 200] the financial terms of their settlement of this
Individuals with Disabilities in Education Act, 20 U.S.C. § 1400, et
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seq., (“IDEA”), suit.

For the reasons stated herein, the motions

will be granted.
I.
Plaintiffs have brought this suit against the public school
districts of Harrison Township and East Greenwich Township on behalf
of their 9 year-old child, A.S., who is undisputedly disabled.
Harrison Township has settled with Plaintiffs.

East Greenwich has

not, and continues with active litigation of this suit.
On December 8, 2016 the Settlement Agreement between Plaintiffs
and Defendant Harrison Township Board of Education was filed with
the Court (under temporary seal) in support of those parties’ joint
motion for approval of the settlement. 1

A publicly-available version

of the Settlement Agreement, with only the dollar figures redacted,
has been filed separately on the docket.
II.
It is well established that there is “a common law public right
of access to judicial proceedings and records.” In re Cendant,
Corp., 260 F.3d 183, 192 (3d Cir. 2001).

In order to overcome the

presumption of a public right to access, the movant must demonstrate
that “good cause” exists for the protection of the material at
issue. Securimetrics, Inc. v. Iridian Technologies, Inc., 2006 U.S.
Dist. LEXIS 22297at *2 (D.N.J. Mar. 30, 2006).

Good cause exists

when a party makes a particularized showing that disclosure will

1

The Court approved the settlement on April 12, 2017.
2

cause a “clearly defined and serious injury to the party seeking
closure.” Id. (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772,
786 (3d Cir. 1994)).
Local Civil Rule 5.3(c)(3) requires that a motion to seal
describe (a) the nature of the materials or proceedings at issue;
(b) the legitimate private or public interest which warrant the
relief sought; (c) the clearly defined and serious injury that would
result if the relief sought 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.
“Any settlement agreement filed with the Court or incorporated
into an order shall, absent an appropriate showing under federal
law, be deemed a public record and available for public review.” L.
Civ. R. 5.3(d)(2).
III.
Plaintiffs and Defendant Harrison Township request that the
financial terms of the settlement agreement be sealed.

Defendant

East Greenwich Township opposes sealing, asserting that the
financial terms of the settlement must be disclosed because
Defendant Harrison Township is a public entity. (Docket #179)
To be sure, East Greenwich’s argument oversimplifies the issue.
It is not the law that every term of a settlement agreement entered
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into by any “public entity” must be made public simply because the
entity is public. 2

On the other hand, it is not East Greenwich’s

burden to persuade this Court that the financial terms should be
unsealed.

Rather, it is Plaintiffs’ burden to demonstrate, with

specific reference to the L. Civ. R. 5.3 factors, that there is good
cause to seal the terms.

Accordingly, the Court now turns to the

relevant Rule 5.3(c)(3) factors.
A.

Nature of the information at issue

The information at issue is: (1) the “net recovery” amount that
Harrison Township has agreed to pay, and (2) out of that net
recovery, the amount that will be allocated for (a) Plaintiffs’
attorney’s fees and costs; (b) Plaintiffs’ out-of-pocket fees and
costs incident to this litigation; and (c) payment into a trust for
the benefit of the minor.
B.

Legitimate private and public interests involved

This suit and settlement involve the educational expenses of a
disabled minor.

Plaintiffs and their minor child have a legitimate

expectation of privacy in that information.

East Greenwich relies upon Judge Kugler’s opinion in Goldberg v.
Egg Harbor Township School District, 2011 U.S. Dist. LEXIS 131390
(D.N.J. Nov. 14, 2011) which held, in an employment discrimination
suit, that the defendant’s counterclaim for breach of the
confidentiality clause contained in the parties’ settlement
agreement failed as a matter of law because the confidentiality
clause was unenforceable as a matter of public policy. Goldberg is
factually and procedurally distinguishable from this case.
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2

However, there is at least some general public interest in how
much any public school board pays to settle a lawsuit such as this.
But in this case, there is no evidence that any member of the public
from Harrison Township has any interest in how much money the
Township paid to these particular Plaintiffs.
The only entity that does have an interest is Harrison
Township’s non-settling Co-Defendant, Greenwich Township.

Greenwich

Township does not explain why it wants to know this information,
although the Court cannot overlook the obvious fact that knowing
such information would be helpful to Greenwich in its continued
litigation against Plaintiffs.

This interest, however, is a purely

private interest that is specific to Greenwich Township within the
specific context of this litigation, and therefore carries little
weight in the balancing of the sealing factors.
C. Clearly defined and serious injury that would result from
disclosure
Plaintiffs assert that Harrison will “reject” the settlement if
the financial terms are made public. (Affidavit of Jamie Epstein,
Esq. ¶ 12) 3

The Court does not accept this asserted injury as a

valid reason to seal.

To hold otherwise would be to effectively

allow the parties to usurp the Court’s power to decide sealing
motions simply by conditioning their settlement upon non-disclosure
of the financial terms.

3

Notably, Harrison Township itself has not made such an assertion.
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Nonetheless, the Court holds that there are other clearly
defined and serious injuries that would result from disclosure.
First, Plaintiffs may suffer embarrassment from public
disclosure of the terms of their settlement, which, as stated
before, is intended to compensate Plaintiffs for the educational
expenses of their disabled minor child.
Second, in light of the continuing litigation with East
Greenwich, disclosure of the financial terms will potentially place
Plaintiffs at an unfair disadvantage in the continuation of that
litigation.
D.

Least restrictive alternative

Plaintiffs and Defendant Harrison Township seek to redact only
the dollar figures in the Settlement Agreement, rather than seal the
entire agreement.

The Court holds that this is the least

restrictive alternative.
IV.
For the reasons set forth above, the Motions to Seal will be
granted.

An appropriate Order accompanies this Opinion.

Dated: May 8, 2017
At Camden, New Jersey

____s/ Noel L. Hillman____
Noel L. Hillman, U.S.D.J.

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