Allen v. Chanel, Inc.,

Filing 99

ORDER.the Court VACATES its August 21, 2020 Order (Order, dated Aug. 21, 2020 [dkt. no. 94][Docketed Under Seal]) and its March 10, 2020 Order (Order,dated Mar. 10, 2020 [dkt. no. 92]). The Court DENIES as moot the motion to intervene filed by the E lectronic Frontier Foundation and Professor Volokh (Letter from Daniel L. Schmutter, dated Oct. 28, 2020 [Docketed Under Seal]).The Clerk of Court is respectfully directed to unseal this case, including docket entries 93, 94, 95, 96, 97, and 98. The Clerk of Court is also directed to mail a copy of this order to Ms. Allen. Ms. Allen shall transmit a copy of this order to any search engine, news outlet, or other domain to which she sent a copy of this Courts March 10, 2020 Order or August 21, 2020 TakedownOrder. SO ORDERED. (Signed by Judge Loretta A. Preska on 12/28/2020)(jus)

Case 1:12-cv-06758-LAP Document 99 Filed 12/29/20 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANU ALLEN,
Plaintiff,

12 Civ. 6758 (LAP)

-against-

ORDER

CHANEL, INC.
Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court are submissions from interested nonparties and from Plaintiff Anu Allen regarding the Court’s
Order, dated August 21, 2020, that directed search engines and
websites to remove materials discussing the above-captioned
action following the Court’s sealing of the docket in this case.
(Order, dated Aug. 21, 2020 [dkt. no. 94] [Under Seal].)

Also

before the Court is a motion to intervene filed by the
Electronic Frontier Foundation, Inc. and Professor Eugene Volokh
of UCLA School of Law (see Letter from Daniel L. Schmutter,
dated Oct. 28, 2020 [Docketed Under Seal]).
Having reviewed these comments from non-parties and from
Ms. Allen, the Court has reconsidered the August 21, 2020 Order
as well as the March 10, 2020 Order that originally sealed this
case’s docket (see Order, dated Mar. 10, 2020 [dkt. no. 92]).
For the reasons discussed herein, the Court hereby VACATES those
orders.

The Court also DENIES as moot the motion to intervene
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Case 1:12-cv-06758-LAP Document 99 Filed 12/29/20 Page 2 of 11

filed on behalf of the Electronic Frontier Foundation and
Professor Volokh.
I.

Background
In 2012, following termination of her employment, Plaintiff

Anu Allen filed suit against her former employer, Chanel, Inc.
(“Chanel”), asserting claims for, inter alia, employment
discrimination.
1].)1

(See Complaint, dated Sept. 6, 2012 [dkt. no.

The Court later granted Chanel’s motion for summary

judgment as to each of Ms. Allen’s claims and ruled in favor of
Chanel on its counterclaim for unjust enrichment.
Order, dated June 26, 2015 [dkt. no. 74].)

(Opinion &

As the Court

recounted in its summary judgment opinion, in anticipation of
making a severance payment to Ms. Allen, Chanel sent Ms. Allen
an agreement that contained a provision by which Ms. Allen would
waive her right to bring certain lawsuits against Chanel,
“including” employment discrimination and harassment claims, in
exchange for that payment.

(Id. at 3.)

When Ms. Allen returned

the signed agreement to Chanel, the word “including” was revised
to “excluding.”

(Id.)

With respect to Chanel’s counterclaim,

the Court found that, because a material term was modified, the
parties never achieved a meeting of the minds, and Ms. Allen was
1

The Court assumes basic familiarity with the facts of the underlying dispute,
which are recounted at length in the Court’s order granting Chanel’s motion
for summary judgment (see Opinion & Order, dated June 26, 2015 [dkt. no.
74]).

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Case 1:12-cv-06758-LAP Document 99 Filed 12/29/20 Page 3 of 11

thus required to return her severance payment to Chanel.
at 12-13.)

(Id.

The Parties ultimately stipulated to dismissal of

the case’s remaining claims.

(See Stipulation of Dismissal with

Prejudice, dated June 12, 2017 [dkt. no. 85]).
On January 10, 2020, Ms. Allen filed a motion to seal her
case.

(Notice of Motion, dated Jan. 10, 2020 [dkt. no. 86].)

Ms. Allen explained that at the time of her separation from
Chanel, having no legal background, she had relied on her
attorney’s advice when she returned the revised separation
agreement to Chanel with a Post-It note on the revised page.
(Id. at 1.)

She also stated that her attorney had insisted that

she submit an affidavit stating that she, rather than her
attorney, had modified the agreement.

(Id. at 2-3.)

She also

stated that the public availability of her case’s docket through
online search engines, and commentary on her case in online
media, rendered difficult her attempts to gain new employment.
(Id. at 4).
After considering Ms. Allen’s submission,2 the Court granted
Ms. Allen’s request to seal the docket in light of her
difficulty finding employment.

(Order, dated Mar. 10, 2020

(“Sealing Order”) [dkt. no. 92].)

On August 21, 2020, the Court

also directed websites hosting filings from the now-sealed

2

Chanel took no position on Ms. Allen’s sealing request.

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Case 1:12-cv-06758-LAP Document 99 Filed 12/29/20 Page 4 of 11

docket, and materials discussing those sealed filings, to remove
those materials.

(Order, dated Aug. 21, 2020 (“Takedown Order”)

[Docketed Under Seal].)
After receiving inquiries from non-parties following the
August 21, 2020 Takedown Order, the Court invited comment from
the non-parties who had submitted inquiries, as well as from
Chanel.

(Order, dated Sept. 30, 2020 [Docketed Under Seal]).

Duck Duck Go, Inc. (“DuckDuckGo”), which operates the
fourth-largest search engine in the United States, submitted a
comment on October 21, 2020.

(Letter from Daniel L. Schmutter,

Megan E. Gray & Eugene Volokh (“DuckDuckGo Letter”), dated Oct.
21, 2020 [Filed Under Seal]).

In its submission, DuckDuckGo

argued that the Court’s August 21 Takedown Order should be
vacated on the basis that: (1) DuckDuckGo could not be bound by
the order under Federal Rule of Civil Procedure 65; (2)
DuckDuckGo did not have an opportunity to be heard; and (3) the
First Amendment protected (i) DuckDuckGo’s right to publish the
information disclosed by the government, i.e., the docket
entries in this case and (ii) the rights of websites to which
DuckDuckGo would point its users.

(Id.)

Free Law Project, which provides free, public, and
permanent access to primary legal materials on the Internet for
educational, charitable, and scientific purposes, also submitted

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comment (Letter from Catherine Crump & Megan Graham, dated Oct.
21, 2020 [Filed Under Seal].)

Free Law Project submitted that

it should not be bound by the Court’s August 21, 2020 Order
under F.R.C.P. 65 because it was a non-party that obtained the
case materials independently and had no opportunity to be heard,
and because the First Amendment protects Free Law Project’s
right to publish the information it lawfully obtained. (Id. at
2-5.)

Moreover, Free Law Project advocated that the submissions

in response to the Court’s September 30 Order should be docketed
and that the entire docket in this case should be unsealed (Id.
at 3, 6-10.)
Ms. Allen submitted by email responses to the non-parties’
comments.

She reiterated her struggle finding employment

because of the public access to the docket of her cases, which
had been compounded by additional recent personal hardship
(Email from Anu Allen, dated Oct. 26, 2020; Email from Anu
Allen, dated Oct. 28, 2020.)

DuckDuckGo submitted a response

letter acknowledging Ms. Allen’s professional and personal
difficulties but maintained that these interests were
insufficient to overcome the due process and First Amendment
rights of DuckDuckGo and those similarly situated and the Rule
65 limitations on the scope of injunctions (Letter from Daniel
L. Schmutter, dated Nov. 3, 2020 [Docketed under Seal]).

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Additionally, on October 28, 2020, counsel for the
Electronic Frontier Foundation and Professor Eugene Volokh of
UCLA School of Law filed a motion to intervene (see Letter from
Daniel L. Schmutter, dated Oct. 28, 2020 [Filed Under Seal];
Letter from Daniel L Schmutter, dated Nov. 2, 2020 [Filed Under
Seal]), which Ms. Allen opposed (Letter from Marshall Bellovin,
dated Oct. 30, 2020 [Filed Under Seal]).
II.

Discussion

1. The August 21, 2020 and March 10, 2020 Orders
“The First Amendment accords a strong presumption of public
access to pleadings and other judicial documents that ‘have
historically been open to the press and general public’ and
‘play a significant positive role in the functioning of the
judicial process.’”

Next Caller Inc. v. Martire, 368 F. Supp.

3d 663, 666 (S.D.N.Y. 2019) (alterations in original) (quoting
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d
132, 141 (2d Cir. 2016)).

It is well-settled that “documents

submitted to a court for its consideration in a summary judgment
motion are--as a matter of law--judicial documents to which a
strong presumption of access attaches, under both the common law
and the First Amendment.”
Cir. 2019).

Brown v. Maxwell, 929 F.3d 41, 47 (2d

Although this presumption applies most strongly to

materials such as those produced at trial or filed in support of

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dispositive motions, such as the summary judgment motion here,
id. at 50, it extends to “pretrial motions and written documents
submitted in connection with them, and docket sheets.”

Newsday

LLC v. County of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).
Although this presumption in favor of public access is
fundamental, private litigants can in some cases overcome it and
shield docketed materials from the public eye.

Countervailing

factors that may outweigh the presumption of public access
include, inter alia, “the privacy interests of those who resist
disclosure.”
Cir. 2001).

S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d
For sealing to be justified on any basis, however,

a court must make “specific, on-the-record findings that sealing
is necessary to preserve higher values,” Brown, 929 F.3d at 47
(quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124
(2d Cir. 2006)).

Moreover, the nature and extent of the sealing

must be narrowly tailored to serve these interests.

Id.

Upon reconsideration, the Court finds that Ms. Allen’s
interest in sealing her case cannot defeat the presumption of
public access that attaches to this case’s docket and its
filings.

Ms. Allen proffers her reasons in support of sealing

the docket in both her original sealing request and in response
to comments from the non-parties.

She articulates that the

public availability of the docket continued to create enormous

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challenges in her employment search and has affected her
livelihood and wellbeing.
2020 [dkt. no. 86].)

(Notice of Motion, dated Jan. 10,

She also notes for the Court that the

modification of the contract with Chanel recounted in the
Court’s motion for summary judgment, actions which some online
commentators have attributed to her, was done on account of the
advice of her attorney and led her to file a formal grievance
against him.

(Id. at 4.)

undoubtedly significant.

Ms. Allen’s concerns are evident and
As the prospective interveners point

out, however, a private litigant’s general concerns about
reputational harm or negative impact to her employment prospects
are not sufficient to counteract the public’s First Amendment
right to these court filings.

Under Seal v. Under Seal, 273 F.

Supp. 3d 460, 470 (S.D.N.Y. 2017) (“A possibility of future
adverse impact on employment . . .

is not a ‘higher value’

sufficient to overcome the presumption of access to judicial
documents) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 120 (2d Cir. 2006)).
Moreover, the fact that the docket sheet in this case and
its filings have been public for years prior to the unsealing
request is further dispositive of this issue.

Gambale v.

Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) (“This
is generally so when information that is supposed to be
confidential—whether it be settlement terms of a discrimination
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lawsuit or the secret to making the hydrogen bomb—is publicly
disclosed.

Once it is public, it necessarily remains public.”).

Although the Court sympathizes with Ms. Allen’s plight, in light
of the recognized First Amendment rights of the press and the
public, it cannot make the requisite, on the record finding that
sealing is proper here.3
As the prospective intervenors point out, however, Ms.
Allen may not be completely without recourse.

(Letter from

Daniel J. Scmutter, dated Nov. 2, 2020, at 2 (“The normal remedy
for alleged attorney misbehavior is a malpractice lawsuit or a
sanctions award . . .”).)

Although the First Amendment

prohibits Ms. Allen from sealing the public record, it gives her
the opportunity to correct it.
Accordingly, the Court must vacate the March 10, 2020 Order
that originally sealed this case’s docket.

Moreover, because

the Court’s August 21, 2020 Takedown Order was issued on the
basis of the March 10, 2020 sealing order, the Court also
vacates the August 21, 2020 order.
2. Motion to Intervene
Just as “‘[r]epresentatives of the press . . . must be
given an opportunity to be heard on the question of their

3

Sealing the case’s docket also would not be a sufficiently narrowly tailored
solution under these circumstances.

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exclusion’ from a court proceeding,” Trump v. Deutsche Bank AG,
940 F.3d 146, 150 (2d Cir. 2019) (quoting Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 609 n.25 (1982)), the Court of
Appeals has “recognized a similar right of news media to
intervene in this Court to seek unsealing of documents filed in
a court proceeding.”

Id.

Here, the Court has afforded non-

parties an opportunity to comment without formal intervention,
however, and has vacated its March 10, 2020 order sealing the
docket in this case (and thus there are no materials left to be
unsealed) and the August 21, 2020 Takedown Order.

Accordingly,

the Court denies as moot the prospective intervenors’ motion to
intervene (see Letter from Daniel L. Schmutter, dated Oct. 28,
2020 [Docketed Under Seal]).
III. Conclusion
For the reasons described above, the Court VACATES its
August 21, 2020 Order (Order, dated Aug. 21, 2020 [dkt. no. 94]
[Docketed Under Seal]) and its March 10, 2020 Order (Order,
dated Mar. 10, 2020 [dkt. no. 92]).

The Court DENIES as moot

the motion to intervene filed by the Electronic Frontier
Foundation and Professor Volokh (Letter from Daniel L.
Schmutter, dated Oct. 28, 2020 [Docketed Under Seal]).
The Clerk of Court is respectfully directed to unseal this
case, including docket entries 93, 94, 95, 96, 97, and 98.

10

The

Case 1:12-cv-06758-LAP Document 99 Filed 12/29/20 Page 11 of 11

Clerk of Court is also directed to mail a copy of this order to
Ms. Allen.
Ms. Allen shall transmit a copy of this order to any search
engine, news outlet, or other domain to which she sent a copy of
this Court’s March 10, 2020 Order or August 21, 2020 Takedown
Order.
SO ORDERED.
Dated:

New York, New York
December 28, 2020
____________________________
LORETTA A. PRESKA
Senior United States District Judge

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