BOWERS et al v. BB&T CORPORATION et al

Filing 382

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 07/18/2018, that: 1. The Clerk SHALL strike Docs. 331 , 331 -4, and 331 -5. 2. The consolidated motion to seal, Doc. 336 , is granted in part and denied in part as follows: a. T he motion is DENIED as moot to the extent it seeks to seal Docs. 331 , 331 -4, and 331 -5. b. The motion is DENIED in part and GRANTED in part to the extent it seeks to seal in whole Docs. 326 , 331 -3 and 374 . i. The defendants SHALL file a version of Doc. 331 -3 on the public docket that redacts only the 401k plan customer name consistent with this Order. ii. The defendants SHALL file a version of Doc. 374 on the public docket that redacts only the customer information in the f irst three columns on the left. iii. The plaintiffs SHALL file versions of Docs. 326 , 336 -2, and 346 on the public docket that redacts the individual class member's name and dollar figures. iv. The documents at Doc. 331 -3, 374 , [326 ], 336 -2, and 346 shall remain under seal. c. The motion is DENIED to the extent it seeks to seal in whole Doc. 324 , 325 , 331 -1, 331 -6, 334 , 335 and 356 . d. The motion is DENIED to the extent it seeks to seal in part Doc. 323 . e. The Clerk SHALL seal Docs. 336 -2 and 346 . f. No earlier than July 24, 2018, the Clerk SHALL unseal Docs. 323 , 324 , 325 , 331 -1, 331 -6, 334 , 335 and 356 . 3. Docs. 326 , 336 -2, and 346 shall remain sealed for fifty years. All remaining sealed documents may be unsealed after ten years, at which time any harm from disclosure will have passed. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT SIMS, et al.,
Plaintiffs,
v.

1:15-CV-732

BB&T CORPORATION, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
In this ERISA action, the plaintiffs have sued the defendants alleging that they
breached their fiduciary duties and committed prohibited transactions in administering
the BB&T Corporation 401(k) Savings Plan. The parties have filed a consolidated
motion to seal in which the defendants seek to fully or partially seal eleven documents
and the plaintiffs seek to fully seal one document, all of which were filed in connection
with the defendants’ summary judgment motion. The Court will grant the motion to the
extent it seeks to seal documents for which a party has established a compelling interest
that outweighs the public’s right to access; otherwise the motion is denied.
I.

LEGAL STANDARD
“The courts of this country recognize a general right to inspect and

copy . . . judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S.

589, 597 (1978).1 This right of public access to judicial records derives from the First
Amendment and the common law. Va. Dep’t of State Police v. Wash. Post, 386 F.3d
567, 575 (4th Cir. 2004). When a party asks to seal judicial records, the court “must
determine the source of the right of access with respect to each document,” and then
“weigh the competing interests at stake.” Id. at 576. The Court must also (1) give the
public notice and a reasonable opportunity to challenge the request to seal; (2) “consider
less drastic alternatives to sealing;” and (3) if it decides to seal, make specific findings
and state the reasons for its decision to seal over the alternatives. Id.; Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253–54 (4th Cir. 1988).
The First Amendment guarantee of access extends only to particular judicial
records. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).
Judicial records are “documents filed with the court . . . [that] play a role in the
adjudicative process, or adjudicate substantive rights.” In re Application of U.S. for an
Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013)
(collecting cases). Because the public has a right to attend trials and oversee the courts,
the First Amendment protects the public’s right to access “the evidence and records filed
in connection with summary judgment proceedings.” E.g., Doe v. Pub. Citizen, 749 F.3d
246, 267 (4th Cir. 2014).
Whether derived from the common law or the First Amendment, the public’s right
of access “may be abrogated only in unusual circumstances.” Stone, 855 F.2d at 182.

1

The Court omits internal citations, alterations, and quotation marks throughout this opinion,
unless otherwise noted. See United States v. Marshall, 872 F.3d 213, 217 n. 6 (4th Cir. 2017).
2

The First Amendment right of access to judicial records “yields only in the existence of a
compelling governmental interest . . . that is narrowly tailored to serve that interest.” In
re Application, 707 F.3d at 290; see also Shane Grp., Inc. v. Blue Cross Blue Shield of
Mich., 825 F.3d 299, 305 (6th Cir. 2016) (“In class actions—where by definition some
members of the public are also parties to the case—the standards for denying public
access to the record should be applied with particular strictness.”) (citing In re Cendant
Corp., 260 F.3d 183, 194 (3d Cir. 2001)). The party seeking to limit public access bears
the burden to show that sealing is appropriate. Rushford, 846 F.2d at 253; see Pub.
Citizen, 749 F.3d at 272.
The party seeking to seal must provide specific reasons to support its position. Va.
Dep’t of State Police, 386 F.3d at 575; Press–Enter. Co. v. Superior Court of Cal., 478
U.S. 1, 15 (1986) (holding that “the First Amendment right of access cannot be overcome
by a conclusory assertion”). Claims of confidentiality for court filings cannot be made
indiscriminately and without evidentiary support. Bayer CropSci. Inc. v. Syngenta Crop
Prot., LLC, No. 13CV316, 2013 WL 12137000, at *1 (M.D.N.C. Dec. 12, 2013); accord
GoDaddy.com, LLC v. RPost Commc’ns Ltd, No. CV1400126, 2016 WL 1158851, at *2
(D. Ariz. Mar. 24, 2016) (“Broad allegations of harm, unsubstantiated by specific
examples of articulated reasoning [are] not enough to overcome the strong presumption
in favor of public access.”).
II.

ANALYSIS
The Court has complied with the notice requirements set forth in Stone and

Rushford. The parties filed this motion to seal in April 2018. Doc. 336. The plaintiff
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objects in whole or part to the sealing of nine documents that the defendants seek to seal.
See, e.g., Doc. 368 (chart listing objections to Docs. 324, 325, 331-1, 331-2, 331-3, 3315, 331-6, 334, and 335). No other person or entity has objected to the motion. See Mears
v. Atl. Se. Airlines, Inc., No. 5:12CV613F, 2014 WL 5018907, at *2 (E.D.N.C. Oct. 7,
2014) (“The filing of a litigant’s motion to seal . . . is sufficient to provide public notice
and opportunity to challenge the request to seal.”).
The Court finds that the First Amendment right of access applies to the documents
because they were filed in connection with the summary judgment motion. See Pub.
Citizen, 749 F.3d at 267 (explaining that the First Amendment protects public access to
“the evidence and records filed in connection with summary judgment proceedings”).
A.

Documents with Confidential Business Information

The defendants seek to seal documents on the basis that they contain confidential
business information. “Business information that might harm a litigant’s competitive
standing” may be a sufficient interest to overcome the First Amendment right of access.
Nixon, 435 U.S. at 598 (holding that “the common-law right of inspection has bowed
before the power of a court to insure that its records” do not serve “as sources of business
information that might harm a litigant’s competitive standing”); see also Pub. Citizen,
749 F.3d at 269 (indicating in dicta that a company’s “strong interest in preserving the
confidentiality of its proprietary and trade-secret information . . . may justify partial
sealing of court records.”).
In order to determine whether the motions to seal should be granted based on
claims of confidential business information, the Court evaluates: whether the party has

4

shown that the information sought to be sealed is confidential; whether disclosure would
harm the party’s competitive standing or otherwise harm its business interests; whether
the motion is narrowly tailored; and whether the interests in non-disclosure are
compelling and heavily outweigh the public’s interest in access to the information. In
weighing the competing interests, the Court considers, among other things, whether
access to the evidence is needed to understand the Court’s decision on summary
judgment and the degree of harm that disclosure would be likely to cause.
1.

RIS Customer Spreadsheet (Doc. 374)2

The defendants move to seal a spreadsheet that lists institutional customers of
BB&T’s Retirement and Institutional Services (e.g., 401k plans) as well as information
on the mutual funds available through those plans and on whether fees that those mutual
funds provide to RIS are rebated to the institutional customer. Doc. 346 at 10–11. The
plaintiffs have objected to the full sealing of this document and have proposed limiting
the sealing to the specific customer names. Doc. 346 at 11.
The defendants support their motion with the affidavit of Steven Reeder, a Senior
Vice President and Benefits Manager at BB&T Corporation, which states that the
spreadsheet contains “highly sensitive customer information that BB&T does not
routinely disclose” and that “disclosure of this information could hamper BB&T’s
competitive standing in the marketplace.” Doc. 336-1 at ¶¶ 2, 5. While Mr. Reeder’s

2

On June 27, 2018, the plaintiffs filed this spreadsheet under seal at Doc. 374 as a substitute
exhibit for the spreadsheet that was originally filed under seal at Document 331-2. See also Doc
328-67 (reflecting on the public record that this exhibit was filed under seal). The Court
understands the defendants’ motion as seeking to seal Document 374, the substitute exhibit.
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affidavit does not explain why the information is sensitive or discuss how disclosure
could hamper BB&T’s competitive standing, counsel asserts in the briefing that BB&T’s
competitors could use this information to target customers and undercut BB&T. Doc.
346 at 10. To some extent the face of the document itself supports the inferences counsel
draws in the brief. This is sufficient to establish a compelling interest in sealing the
customer names. However, BB&T has not pointed to any non-conclusory evidence
tending to support its assertion that disclosure of the other information on the spreadsheet
would cause it harm, especially if the customer names are sealed.
The plaintiffs relied on this spreadsheet to support their assertion that the BB&T
401k plan is treated differently than other 401k plans because the BB&T Plan does not
receive rebates from RIS and as a result pays more in fees than similarly situated plans.
See Doc. 346 at 11. This evidence was integral to the Court’s decision to deny summary
judgment on Counts I, VI, and VII. See Doc. 369 at 13–15, 25. Because this information
was a primary consideration in the Court’s decision on summary judgment the public has
a strong interest in access to the spreadsheet.
After weighing the interests of the defendants and the public, the Court will limit
the sealing of the spreadsheet to the customer information provided in the first three
columns on the left (i.e., PLANKEY, PlanNam, and Omni Plan ID). The customer
names provided in the spreadsheet are not necessary for the public’s understanding of the
issues decided on summary judgment and may not even be relevant. Sealing this
information will protect BB&T’s compelling business interests by limiting a competitor’s
ability to target BB&T’s customers. As BB&T has not submitted evidence to support its
6

contention that it would be harmed by disclosure of other information on the form so long
as the customer names are not disclosed, and as that information is necessary to facilitate
public understanding, the Court will not seal the entire document.
2.

The Deposition of Ronald Deal (Doc. 331-3)

The defendants move to seal portions of Mr. Deal’s deposition testimony. Doc.
346 at 6–7. In his deposition testimony, Mr. Deal goes over the RIS spreadsheet, Doc.
374, just discussed, as to which the Court has found that the sealing of customer names is
appropriate. The defendants seek to redact the publicly available deposition so as to seal
Mr. Deal’s discussion of: (1) another company’s 401k plan for which BB&T Retirement
and Institutional Services does the recordkeeping, (2) the specific BB&T affiliated funds
that the other company plan invests in, and (3) rebates that RIS provides to the other
company plan based on fees it receives from BB&T affiliated funds.
In support, the defendants provide the affidavit of Mr. Reeder, in which he affirms
that the proposed redactions contain “highly sensitive customer information that BB&T
does not routinely disclose.” Doc. 336-1 at ¶ 6. Mr. Reeder’s affidavit does not explain
why the information is sensitive or discuss the harm that could occur from disclosure, but
the harm from disclosure of this testimony is the same as the harm from disclosure of the
RIS spreadsheet. See supra Section II.A.1. As with the spreadsheet, the defendants have
not provided a compelling reason for sealing the portions of Mr. Deal’s deposition about
this other plan, except for the plan’s identity.
The public has a strong interest in having access to Mr. Deal’s testimony dealing
with different treatment of plans. The plaintiffs relied on this testimony, see Doc. 346 at

7

7, and this evidence was integral to the Court’s decision to deny summary judgment on
Counts I, VI, and VII because it provided support for the plaintiffs’ allegations that the
BB&T 401k plan is treated differently than other 401k plans and as a result pays more in
fees than other similarly situated plans. See Doc. 369 at 13–15, 25.
After weighing the interests of the defendants and the public, the Court will limit
the sealing of Mr. Deal’s deposition testimony to the name of the 401k plan customer that
is discussed. The customer name is not necessary for the public’s understanding of the
issues decided on summary judgment and sealing this information will protect BB&T’s
compelling business interests by limiting a competitor’s ability to target this customer
and undercut BB&T’s business.
3.
Compensation Committee Minutes (Docs. 323, 324, 325, 331-1,
331-6, 334, 335 and 3563)
The defendants seek to seal six exhibits that contain Compensation Committee
meeting minutes from 2007 through 2015 as well as the part of their opening summary
judgment brief discussing the Committee’s consideration and adoption of a collective
investment trust investment option in 2014.4 Doc. 346 at 12–13. The defendants have
filed a redacted version of their opening summary judgment brief on the public docket.

3

On May 7, 2018, the plaintiffs filed under seal a substitute expanded set of minutes in place
of the originally-filed and more limited set of minutes at Document 331-6. See Doc. 371 (Order
discussing substitution). The Court allowed the parties to file supplemental briefing to address
the substitute document, see id. at 4; no party took advantage of this opportunity. The Court will
treat the defendants’ motion as seeking to seal both the original exhibit at Document 331-6 and
the substitute exhibit at Document 356.
4

The parties already have redacted these exhibits to redact confidential information that they
agree is not relevant to the case. The defendants seek to seal all remaining information in the
exhibits.
8

Doc. 322. The plaintiffs oppose the sealing of five of these six exhibits (Docs. 324, 325,
334, 335 and 331-1) and oppose the partial sealing of the defendants’ opening summary
judgement brief. The plaintiffs also oppose the partial sealing of the remaining exhibit
and instead suggest that the sealing be limited to those portions of the minutes that the
plaintiffs did not rely on in their opposition to summary judgment. Doc. 346 at 13–16.
The defendants support their motion with the affidavit of Mr. Reeder, which states
that the “minutes reflect the internal discussions and deliberations of the Compensation
Committee” and that “BB&T does not publicly disclose [them] . . . and views these
internal discussions as competitively sensitive information.” Doc. 336-1 at ¶ 4. The
defendants have not offered any evidence explaining what information in the minutes is
competitively sensitive or evidence of the type of harm that would occur from disclosure.
The defendants also support their motion by citation to cases where courts have
sealed board minutes. References to cases in which similar evidence has been evaluated
in connection with a motion to seal are helpful, but citations to cases are not a substitute
for evidence. That a court in a different case sealed board meeting minutes does not
establish as a factual matter that a particular document in this case contains confidential
business information. Whether a document should be sealed is case-specific and depends
on the information that is to be sealed, the specific harm that would come from disclosure
of that information, and the public’s interest in that information as it relates to the issues
in dispute. See supra Section I (discussing legal standards for sealing).
The defendants have not directed the Court to any case that sealed board minutes
under the specific circumstances that are present here, and the cited cases generally arose
9

in different contexts. For example, in Krueger v. Ameriprise Fin., Inc., No. CV 11-2781,
2014 WL 12597948 (D. Minn., Oct. 14, 2014), Doc. 346 at 12, the court sealed the
minutes of a 401k fiduciary board similar to the minutes at issue here. Unlike here,
however, the court in Krueger determined that the board minutes were not judicial
records and no public right of access attached. Krueger, 2014 WL 12597948, at *19.
Both parties relied on Compensation Committee minutes in their summary
judgment briefing to support their positions that the Compensation Committee’s process
for selecting and maintaining investment options and evaluating fees was prudent or
imprudent. The Court explicitly considered and relied on these minutes in denying
summary judgment on Counts I, II and III. See, e.g., Doc. 371 at 2–3 (explaining how the
Court considered portions of the Committee minutes); Doc. 368 (chart listing citations to
documents subject to consolidated motion to seal); Doc. 369 at 14 n. 13, 17 (summary
judgment order). These minutes provide evidence of the Committee’s process in
administering the Plan and support the plaintiffs’ position that there is a genuine issue of
material fact regarding whether that process was prudent. For this reason, the public has
a strong interest in access to the minutes and the briefing that discusses them.
The defendants have not demonstrated a compelling interest in maintaining the
documents under seal. Mr. Reeder’s conclusory statement that the minutes contain
“internal deliberations” and are “competitively sensitive” is insufficient to overcome the
public interest here, which is of constitutional dimension. The minutes are generic in
nature, noting the topic discussed and the outcome but not detailing the internal
discussion that led to the Committee’s decision. Further, the minutes span a decade and
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there is no basis for concluding that disclosure of old minutes will harm BB&T’s
competitive interests now. The Court will deny the defendants’ motion to seal the
Compensation Committee minutes.
B.
Documents With Information Not Relied On By The Parties (Docs.
331, 331-4, 331-5)
The defendants seek to seal portions of three exhibits that the plaintiffs filed:
 Jeffrey Schappe’s deposition testimony that discusses his personal
investment allocations, Doc. 331;
 an internal BB&T memorandum that discusses potential changes to
BB&T’s retirement benefits that were considered but not implemented,
Doc. 331-4; and
 a draft memorandum of understanding between BB&T affiliate Sterling
Capital Management and BB&T Retirement and Institutional Services that
discusses specific non-401k-plan customers. Doc. 331-5.
The Local Rules only allow documents to be filed when a party relies on those
documents to support or oppose a motion. L.R. 7.3(e) and (f). The Local Rules also
require a citation to evidence to accompany all factual assertions in the briefs. L.R.
7.2(a)(2); see also Doc. 6 at ¶ 1. Read together, the Local Rules make it clear that there
is no reason to file materials not cited in the briefs.
In connection with summary judgment, no party relied on the parts of Documents
331, 331-4, and 331-5 that the defendants seek to seal. See Doc. 346 at 6, 8–9. Because
the plaintiffs filed on the public docket versions of these documents that include all

11

portions on which the parties relied, see Doc. 328-39; Doc. 328-73; Doc. 328-80, the
sealed versions were filed for no reason and in violation of the Local Rules. The Court
will strike from them from the record, making the motion to seal these exhibits moot.
The plaintiffs contend that the redacted portions of the draft memorandum of
understanding between Sterling and RIS “bear on” “BB&T’s provision of better deals to
outside investors than to the [BB&T 401k] Plan” and that they cited the exhibit in their
summary judgment briefing for this proposition. Doc. 346 at 9. The record does not
support the plaintiffs’ position.
The plaintiffs’ summary judgment briefing cited the draft memorandum of
understanding three times and only provided a pin cite in one instance. Doc. 327 at 17,
18, and 35 (citing to TAD Decl. paragraph 70, which references Exhibit RRR—the draft
memorandum of understanding). The pin cite provided did not reference the parts of the
exhibit that the defendants seek to seal and the plaintiffs’ brief did not discuss these
portions either. Id. (including no discussion of the specific customer information that the
defendants seek to seal). The Local Rules require pin cites, as does this Court’s standard
order. L.R. 7.2(a)(2); see also Doc. 6 at ¶ 1. The Court has no duty to and does not scour
the record to locate uncited evidentiary support for a party’s factual assertions. See
Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); Cray Commc’ns, Inc. v.
Novatel Comput. Sys., Inc., 33 F.3d 390, 395–96 (4th Cir. 1994). Moreover, even if the
Court had reviewed the portions of memorandum of understanding that the defendants
seek to seal, it is not obvious how they relate to the plaintiffs’ claims.
Filing exhibits for no reason clutters the court docket. Moreover, when the
12

exhibits are subject to a protective order and necessitate a motion to seal, filing exhibits
for no reason wastes the time of other parties and the Court. If this happens in connection
with future motions, the offending party is likely to face a financial sanction.
C.

Individual Class Member’s Financial Information (Doc. 326)

The plaintiffs move to seal a quarterly 401k account statement of one of the class
members. Doc. 346 at 17–18. The defendants do not oppose the motion.
“Personal financial information, such as one’s income or bank account balance, is
universally presumed to be private, not public.” In re Boston Herald, Inc., 321 F.3d 174,
190 (1st Cir. 2003). It is readily apparent that the disclosure of this information could be
used for an improper purpose and/or cause harm to the individual plaintiff, for instance
by making an individual vulnerable to identity theft or financial crimes.
The defendants cited and relied on this individual account statement to support
their assertion that class members were “informed [] of each investment option’s
performance over time” such that they had actual knowledge of the claims more than
three years before the suit was filed. Doc. 322 at 21. The Court considered this
information—which shows up on the statement in the form of a number reflecting the
percentage of the return on investment—in denying summary judgment on the
defendants’ three-year statute of limitation defense and it is necessary for the public’s
understanding of that decision. Doc. 369 at 8–9.
The Court has weighed the interests and finds that the class member’s name and
the dollar figures (e.g., balances, contributions, withdrawals, earnings, and vested
amount) can be sealed, but not the full document. The plaintiffs do not contest that the

13

account statement is from a class member and neither party contends that the class
member’s name and the dollar figures are necessary for the public understanding of the
Court’s summary judgment decision. Sealing the class member’s name and dollar figures
will protect the individual’s privacy rights. The names of the funds and the return
percentage, however, should not be redacted, as those are necessary for public
understanding of the Court’s ruling and as the harm of disclosure is minimal without the
class member’s name.
Because the consolidated brief and supporting affidavit state the individual class
member’s name, the Court will direct the Clerk to seal the brief and will direct the
plaintiffs to file a version of the brief and affidavit that redacts the individual’s name and
substitutes a pseudonym or other marker.
It is ORDERED that:
1. The Clerk SHALL strike Docs. 331, 331-4, and 331-5.
2. The consolidated motion to seal, Doc. 336, is granted in part and denied in part as
follows:
a. The motion is DENIED as moot to the extent it seek to seal Docs. 331,
331-4, and 331-5.
b. The motion is DENIED in part and GRANTED in part to the extent it
seeks to seal in whole Docs. 326, 331-3 and 374.
i. The defendants SHALL file a version of Doc. 331-3 on the public
docket that redacts only the 401k plan customer name consistent
with this Order.
14

ii. The defendants SHALL file a version of Doc. 374 on the public
docket that redacts only the customer information in the first three
columns on the left.
iii. The plaintiffs SHALL file versions of Docs. 326, 336-2, and 346 on
the public docket that redacts the individual class member’s name
and dollar figures.
iv. The documents at Doc. 331-3, 374, 326, 336-2, and 346 shall remain
under seal.
c. The motion is DENIED to the extent it seeks to seal in whole Doc. 324,
325, 331-1, 331-6, 334, 335 and 356.
d. The motion is DENIED to the extent it seeks to seal in part Doc. 323.
e. The Clerk SHALL seal Docs. 336-2 and 346.
f. No earlier than July 24, 2018, the Clerk SHALL unseal Docs. 323, 324,
325, 331-1, 331-6, 334, 335 and 356.
3. Docs. 326, 336-2, and 346 shall remain sealed for fifty years. All remaining
sealed documents may be unsealed after ten years, at which time any harm from
disclosure will have passed.
This the 18th day of July, 2018.

UNITED STATES DISTRICT JUDGE

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