Fujian Ocean Shipping Co. Ltd. v. O. W. Bunker Far East (S) Pte. Ltd. et al

Filing 108

ORDER granting 105 Letter Motion to Seal. Application GRANTED. SO ORDERED. (Signed by Judge Valerie E. Caproni on 8/2/2022) (vfr)

Case 1:16-cv-00401-VEC Document 108
105 Filed 08/02/22
07/29/22 Page 1 of 3

[phone]

July 29, 2022
VIA ECF
Honorable Valerie E. Caproni
United States District Judge
United States District Court
Southern District of New York
40 Foley Square
New York, NY 10007
Re:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 07/29/2022

MEMO ENDORSED

Fujian Ocean Shipping Co. Ltd. v. O.W. Bunker Far East (S) Pte. Ltd., et al.
(No. 16-cv-401)

Dear Judge Caproni:
We write on behalf of ING Bank N.V., as Security Agent (“ING”), with the consent of
Global Energy Trading Pte Ltd. (“GET”) and Fujian Ocean Shipping Co. Ltd. (“Fujian”), who
does not oppose this motion. On July 28, 2022, the parties concluded a confidential settlement
agreement, including as to the form of the accompanying enclosed Stipulation and Proposed
Order for Discharge, Dismissal With Prejudice, and Transfer of Funds, dated July 28, 2022 (the
“Stipulation”). Pursuant to Your Honor’s Individual Practices in Civil Cases, ING moves for
leave to (1) seal the highlighted portion of the enclosed stipulation and (2) to seal the docket
entry reflecting the amount of the withdrawal from the Court Registry Investment System
(“CRIS”). Taking these limited steps is appropriate in light of Second Circuit case law because
the redactions are narrowly tailored, the public interest in release of such material is negligible,
and even if any presumption applied, such interest is outweighed by the interests outlined in
more detail below.
I.

The Information to be Sealed Does Not Constitute a “Judicial Document” Under
Lugosch and a Presumption of Public Access Should Not Apply

In order to be designated a judicial document, merely filing a document with the court is
insufficient to render that paper a judicial document – instead “the item filed must be relevant to
the performance of the judicial function and useful in the judicial process.” See Lugosch v.
Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006) (quoting United States v. Amodeo, 44 F.3d 141,
145 (2d Cir. 1995)). ING’s application does not seek to seal in its entirety any judicial
document, but only to redact the highlighted information within the Stipulation, and to seal the
related docket entry reflecting the amount of the withdrawal and transfer from the Court’s
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Case 1:16-cv-00401-VEC Document 108
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Hon. Valerie E. Caproni
July 29, 2022
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registry (which is also set forth in the Stipulation). Unlike the documents in Lugosch that the
Court relied on in making its summary judgment determination, the information sought to be
sealed here is not itself subject to Court approval. See Lugosch v. Pyramid Co., 435 F.3d 110,
121 (2d Cir. 2006) (finding that documents used in moving for or opposing summary judgment
should not remain under seal absent compelling reasons). Here, by contrast, the information
sought to be sealed is similar to that referred to in Perez v. Jupada Enters., where the parties’
“settlement documents were not filed with the court and were not the basis for the court’s
adjudication” of the enclosed Stipulation. See Perez, No. 10 Civ. 3118, 2012 U.S. Dist. LEXIS
103783, at *13 (S.D.N.Y. July 25, 2012) (granting sealing application with respect to redactions
of letters that referred to terms of confidential settlement agreement) (citing Gambale v.
Deutsche Bank AG, 377 F.3d 133, 143 (2d Cir. 2004)). Accordingly, the presumption of public
access should not apply under these circumstances to the material sought to be sealed.
II.

If Any Presumption of Public Access Applies, It Is Weak With Respect to the
Redactions, Which are Narrowly Tailored, and Competing Concerns Outweigh Any
Interest in Public Disclosure

Even if such a presumption applied, however, ING’s request is narrowly tailored, and seeks
only to redact that portion of the Stipulation relating to the terms of the confidential settlement
agreement and the withdrawal of funds on deposit in the CRIS. As relevant here, the Second
Circuit has found that passing references to the amount of a confidential settlement has at most
an attenuated connection to the interests sought to be preserved by the presumption of public
access to judicial documents. See Gambale, 377 F.3d at 143 (2d Cir. 2004) (finding that, where
a passing reference to the amount of a confidential settlement on the record was made, such
information should have been maintained as confidential; and “the presumption, such as it was,
was a weak one under these circumstances”).
Even if any presumption of public access were to apply, redacting only those portions of
the Stipulation pertaining to the confidential terms of the parties’ settlement agreement is a
solution narrowly tailored to serve the parties’ interest in maintaining the confidentiality of their
settlement, and outweighs any presumption that might apply. The settlement agreement among
ING, Fujian, and GET was entered into following the successful conclusion of confidential
negotiations, with the expectation that its terms would remain confidential. See Sellick v.
Consol. Edison Co. of N.Y., Inc., No. 15-cv-9082 (RJS), 2017 U.S. Dist. LEXIS 43554, at *25
(S.D.N.Y. Mar. 23, 2017) (“[T]he parties’ interest in maintaining the confidentiality of their
settlement is clearly a countervailing interest that may overcome the presumption in favor of
open records where, as here, ‘the settlement itself was conditioned on confidentiality’ … The
Court finds that Plaintiff’s limited redaction requests of details related to her contemplated
confidential settlement are ‘narrowly tailored to serve’ the parties’ interest in maintaining the
confidentiality of their settlement.”).
Second, the disclosure of non-public, commercially sensitive information may well create
unexpected transaction costs and inefficiencies among the parties, disrupting the expectation of
confidentiality covering those issues. See Standard Inv. Chartered, Inc. v. FINRA, 347 F. App’x
615, 617 (2d Cir. 2009) (affirming district court order of narrowly-tailored redaction of financial
data that would subject disclosing party to “financial harm” and “competitive disadvantage”). In
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Hon. Valerie E. Caproni
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Standard Inv. Chartered, the Second Circuit affirmed the National Association of Securities
Dealers’ (“NASD”) analogous request to redact financial data, where “an outsider with
knowledge . . . could, upon viewing the facts and figures in NASD’s records, use that
information to deduce NASD’s negotiation tactics” which could pose competitive disadvantage
to NASD. Id. (internal quotations and citations omitted). The redacted portions of the
Stipulation contain commercially sensitive information that could potentially prejudice
negotiations in ongoing related cases around the world in which the same issues may arise.
Redacting the suggested portions of the Stipulation, and sealing the docket entry reflecting the
amount of the related withdrawal from the Court’s registry, is a narrowly tailored step that
properly balances any presumption of public access under the First Amendment with the
countervailing commercial interests of ING and the parties’ expectations in the confidentiality of
their settlement agreement. See, e.g., Order Granting Letter Motion to Seal, SK Shipping Co.,
Ltd. and SK B&T Pte. Ltd. v. NuStar Energy Servs., Inc., et al., No. 15 Civ. 2141 (VEC), Doc.
117 (Apr. 20, 2020) (granting similar motion to seal in O.W. Bunker-related case).
In sum, ING respectfully requests that the Court grant its application to seal (1) the
highlighted portions of the enclosed Stipulation, and (2) the docket entry reflecting the amount of
the withdrawal of funds from the Court’s registry. We stand ready to address any questions the
Court may have as to this application and thank the Court for its consideration.

Respectfully submitted,

Brian P. Maloney
Enclosure
Cc:

Bruce G. Paulsen ([e-mail])
James Power ([e-mail])
Marie Larsen ([e-mail])
Thomas Belknap ([e-mail])

Application GRANTED.
SO ORDERED.
08/02/2022
HON. VALERIE CAPRONI
UNITED STATES DISTRICT JUDGE
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