The Metropolitan Museaum of Art and Jan Cowles v. Safflane Holdings, Ltd. et al

Filing 26

ORDER: For the reasons stated, the application of Gagosian Gallery for reconsideration and vacatur of our November 7, 2011 order isdenied. (Signed by Magistrate Judge Michael H. Dolinger on 1/20/2012) Copies Mailed By Chambers. (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- -x
SAFFLANE HOLDINGS, LTD. and
ROBERT WYLDE,
aintiffs,
11 Ci v. 1679 (DLC) (MHD)

against
GAGOSIAN GALLERY,
CHARLES COWLES,

INC. and

De

s.

- -x
THE METROPOLITAN MUSEUM and
JAN COWLES,
Plaintiffs,
11 Ci v. 3143

(DLC) (MHD)

SAFFLANE HOLDINGS, LTD. and
ROBERT WYLDE,
Defendants.

x

MICHAEL H. DOLINGER
UNITED STATES ~AGISTRATE JUDGE

letter to the Court dated November 3, 2011, counsel for the
fendant Gagosian Gallery in the
case, 11 civ. 1679 ("the
, two
all

of relief:

references

in

(1)

case"), requested,
that we expunge "from the record"

correspondence

by

the

attorney

for

Ms.

Jan

Cowles, a plaintiff in
case, 11 Civ. 3143 ("the

case"), purport
1

y spec

the

terms of a confidential settlement agreement between

aintiffs and

the Gagosian Gallery in the Safflane case, and (2) that we issue an
order prohibiting

"any party or their respective counsel"

sclosing those terms in the future. The apparent
request was to

d disclosure by Ms.

from

of this

Cowles's counsel of the

amount of money that the Gagosian Gallery had agreed to pay to
settle the Safflane case.

By Order dated November 7,
doing so,

we first

2011 we denied this request.

observed that there was no

statements by counsel

that

could be

subj ect

"record"

In

of any

to an expungement

order, since the only written reference to settlement terms was in
a letter to the court, which was not part
7, 2011

the court file.

(Nov.

at 4). We further held that neither form of relief,

including a gag order, had been justified:

In any event Gagosian's application,
ofar as it targets
either prior correspondence or future statements by Ms.
Cowles's attorney, fails because it is necessarily premised
on the contention that Ms. Cowles's lawyer is bound by a
confidentiality agreement between the parties in the
Safflane case. Gagosian f
Is, however, to of
any basis
for the implication that Ms. Cowles's counsel is bound by
the terms of such an agreement. In this respect we note
that
settlement agreement in question was between
litigants in the
case, to which Ms. Cowles was not
a party, and Gagosian proffers no evidence that Ms. Cowles
(by her at
in
) or her counsel was a signatory to
that agreement or was otherwise bound by a separate
confidentiality requirement.
2

at 4-5). We

specified that "[iJf this gap in

able to inadvertence by counsel, Gagosian will

is at

to make a more substantial application to keep any
at

the settlement terms under seal."

5

free

scription of

n. 4) .

Two weeks later, counsel for Gagosian applied by letter for
reconsideration, citing footnote

of our November 7 Order. In
lief," that during

substance, she asserted, "upon information and

a public joint conference with the court in both the
the

Museum

cases

("

October

Ms.

en),

7

and
Cowles's

attorney had learned of the settlement terms in the
"by

reading

shoulder

a

of

memorandum

the

Met's

summari zing

counsel,

who

the

case

settlement

was

ded

over
with

that

memorandum by counsel for the Safflane Plaintiffs on a confidential
basis."
Bart,

(Nov.

Esq.

21,

at

2011

Letter to the Court from Hollis Gonerka
went

2)

on

to

assert

that

mediations are confidential," and hence that Ms.
lawyer

were

bound

to

keep

these

terms

"court ordered
Cowles and

secret.

In

submission, she did not proffer any evidence pertinent to any issue
raised
Ms.

her initial request, inc

Cowles

and her

provision in the

at

to

ng the obI
be

bound

ion, if any, of
a

confidentiality

case settlement agreement.

3

, that the

In response, Ms. Cowles's counsel noted,

e mediation session,

October 7 conference was not a
denied that he had imprope

and he

sought out the terms in question.

(Nov. 23, 2011 Letter to the Court from David R. Baum, Esq. at 2­
3).

Rather

I

he represented that even before the conference and

terwards as well
binding agreement

into a

- before Safflane and Gagosian ent

- Safflane's attorney had kept him abreast of

the negotiation between those two parties.

(Id.

at 2).

He also

ed that he had made clear to counsel for both negotiating
parties that he and his client were not

ing to confident

lity

unless Gagosian resolved an entirely separate claim that Ms. Cowles
had against the Gal

ry

cases and which she int
claim was

not

one not asserted in either of these
to pursue in state court.

settled,

and we

understand

that

Ms.

(Id.). That
Cowles

has

recently filed suit in state court on that claim.

As for the events of the October 7 conference, Ms. Cowles's
counsel

reports

that

Safflane's

settlement terms from the

attorney

gave

a

copy

of

the

case to the Museum's attorney,

and that he also asked Safflane's lawyer for a copy. According to
Ms. Cowles's counsel, plaintiffs' counsel in the

case, Mr.

Golub, did not respond to this request. He then advised Mr. Golub
he would read the terms on the Museum attorney's copy,
4

a

representation to which Mr. Golub did not respond.

(rd.).

We have now received a further exchange of letters regarding
for Gagosian Gallery reiterates her appl

this issue. Couns

ation

in light of the fact that Ms. Cowles has filed suit in state court
t

r client on a separate claim, and in the course of the

complaint

amount that the Gallery paid to settle

mentioned
case.

the

(Jan. 19, 2012 Letter to the Court from Hollis

Gonerka Bart, Esq. at 1). In response, apart from referring to the
previous letter briefing,
Gallery

recent

Ms.

publicly

Cowles's attorney notes

filed

in

related to a default judgment against
appended

a

copy

of

the

this

court

that

inquest

the

papers

fendant Charles Cowles that

purportedly

confidential

settlement

agreement, and that Mr. Cowles subsequently provided a copy of that
non confidential document to him.

(Jan.

20,

2012

Letter to the

Court from David R. Baum, Esq.).

Gagosian's
November 7,

request

2011

that underlay its

for

reconsideration and vacatur of our

order is denied,
ti

substantially for the reasons

issuance.

Seeking a protective order,

Gagosian never demonstrated good cause since it failed to establish
a legal basis for enforcing against Ms. Cowles or her attorney a
confidentiality provision to which neither of them was a party.

5

Although in our November 7 order we offered counsel an opportuni
original application

to fill the evidentiary gap in
not even attempt to do so. Rather

she did

l

she argued in general terms that

l

mediation sessions are confidential -- a proposition with which we
and asserted "on information and belief" that

do not disagree

the Museum counsel had received a copy of the settlement terms in
confidence

and

that

sought them out.
Gonerka

Bart

protective
prof

Ms.

(Jan.
at

I

order

Cowles/s

19 1

had

surreptitiously

2012 Letter to the Court from Hollis

1 2).

might

attorney

well

Were
be

these

the

justified

l

proven
but

facts

l

Gagosian

a
has

no evidence to support that speculation.

In

contrast

contradiction

l

case

I

counsel

for

Ms.

Cowles

that the parties negot

represents

l

without

ing a settlement of the

d not seek a confidentiality promise from him or

his client and that Mr. Golub freely volunteered throughout the
process

the

settlement.

amounts

that

Gagos

He further represents

was
I

offering

to

pay

a

again without cont

that before reviewing the term sheet that the negotiating parties
had given to the Museum attorney -

whether with or without a

confidentiali

promise is undocumented -

that

be

he

would

confidenti

doing

SOl

and

ity agreement from him.
6

neither

he advised Mr.
party

asked

Golub
for

a

Finally,

we

note

that

Gagosian's

public

filing

of

the

settlement agreement, and its service of the same document on Mr.
Cowles without a prior confidenti
not to

i

order to bind that gentleman

sclose it, has apparently led to the public disclosure of

the payment terms well beyond Ms. Cowles and her lawyer. Indeed,
Mr.

Cowles gave a

referred to it in

copy to Ms.

Cowles's

s recently fil

I

r,

who apparent

state court complaint. As a

result, according to the Gallery, that det

I has been published in

the local press.

Given all of

circumstances,l we conclude once again that

Gagosian Gallery has not met its burden to demonstrate that Ms.
Cowles or her attorney are bound to confidentiality by contract or
court order. They were not parties to the settlement agreement,
which is

only cited source of a contractual confi

iality

requirement, and we never imposed such an obligation on them.

As for the Gallery's argument that Ms. Cowles and her at

We do not rely on the public filing by Gagosian Gallery of
a copy of the settlement agreement as an independent basis to
find waiver of any
identi ity claim because it is
conceivable that that the filing was an oversight. Nonetheless it
is evidence at least
both sloppiness and a less-than-serious
approach to protecting the secrecy of
settlement terms, an
approach that seems further reflected in the uncontradict
version of events offered by Ms. Cowles's attorney.
1

7

are

1

bound by the

rule

of

identi

sessions, that argument too misses

mark.

to the court or to court appointed
are

ect

to

sumption

a

sentations

i

admissible

int

iators during closed sessions
of

confidentiality,

trial.

R.

but potenti
d.

ish liabili

or the amount of damages

i stent statement). In
not a mediation session
Ms. Cowles/s att
accompani
ident

l

event

and

I

to

or for impe

by

the October 7 conference was

disclosure

at t

s other
I

ly

(allowing

408

ion of settlement discussions for

est

in

not confi

ity is otherwise agreed to

at

although

counsel

iations may well be not

unless confi

mediation

sentations

an attorney to oppos

course of direct

even

of

l

0

the payment terms to

session has not been shown to have

by any demand, much less

t

it would

1.

The conference was

ed in open court and involved no

iations at which the court was present. Rather,
Safflane case litigants

-

Gallery

asked for

conference to announce to the court

they

reached an

ement to settle the claims between

t

that iS

I

Safflane

counsel for

l

Mr. Wylde

I

and

them. The

rence was then adjourned without disclosure of the

terms

the

court

no
8

is

to

seal

the

courtroom.

Moreover, as we have noted, whatever went on between t

lawyers at

that time or subsequent

has not been shown to have involved a

commitment

to keep

by Ms.

Cowles

settlement agreement to whi

confidenti

protected by any

a

she was not a party. In short, t

that anything communicated on

is no indicat

terms

i

e that court­

occasion was
sed mediation

discussion are confidential.

For
for recons

reasons stat

application of Gagosian Gallery

ration and vacatur of our November 7, 2011 order is

denied.

Dated: New York, New York
January 20, 2012

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE

9

es of

foregoing

Aaron Richard Golub! E
Aaron
chard Golub! Es
34 East 67~ Street! 3rd
New York! New York 10065

have

ref

PC

Hollis Gonerka Bart! E
Withers Bergman, LLP
430 Park Avenue
New York! New York 10022
Robert Baum! Esq.
SNR Denton US LLP
1221 Avenue
Americas
New York! New York 10020
John D. Winter! Esq.
Patterson! Belknap!
1133 Avenue of the
New York! New York 10036

er LLP
s

10

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