Polch v. Paul F. Vanek, Jr., M.D., Inc. et al
Filing
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Memorandum Opinion and Order: For the reasons set forth in the order, the parties' Motion to Approve Settlement (Doc. Nos. 8 , 9 ) is DENIED WITHOUT PREJUDICE. Entered by Judge Pamela A. Barker on 10/30/2020. (L,Ja)
Case: 1:20-cv-01436-PAB Doc #: 10 Filed: 10/30/20 1 of 5. PageID #: 37
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CATHERINE POLCH,
CASE NO. 1:20-CV-01436
Plaintiff,
-vs-
JUDGE PAMELA A. BARKER
PAUL F. VANEK, JR., M.D., INC., et al.,
Defendants.
MEMORANDUM OF OPINION AND
ORDER
This matter comes before the Court upon the parties’ Joint Motion to Approve Settlement
Agreement and Dismiss Claims with Prejudice (“Motion to Approve Settlement”). (Doc. Nos. 8, 9.) 1
For the following reasons, the parties’ Motion to Approve Settlement is DENIED WITHOUT
PREJUDICE.
I.
Background
On June 29, 2020, Plaintiff Catherine Polch (“Polch”) filed the instant action against
Defendants Paul F. Vanek, Jr., M.D., Inc. and Paul F. Vanek, Jr. (collectively, “Defendants”). (Doc.
No. 1.) In her Complaint, Polch alleges that Defendants failed to properly compensate her at a rate
not less than one and a half times her regular rate of pay for work performed in excess of forty hours
in a work week in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and
Ohio law. (Id. at ¶¶ 62-79.)
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The parties filed the same Motion to Approve Settlement on both October 1, 2020 and October 16, 2020. (Doc. Nos. 8,
9.) For ease of reference, the Court will refer to the parties’ Motions as a singular Motion to Approve Settlement and
only cite to the first-filed document.
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On September 29, 2020, the parties advised the Court that they had reached a settlement, and,
two days later, filed their Motion to Approve Settlement. (Doc. No. 8.) Therein, pursuant to the
FLSA, the parties seek the Court’s approval of their Confidential Settlement Agreement and Release
of All Claims (the “Settlement Agreement”) as fair and reasonable. (Id. at 1-2.) The parties indicate
that they “intend to have the Settlement Agreement remain strictly confidential and not become part
of the public record.” (Id. at 2.) However, they offered to provide the Settlement Agreement to the
Court for in camera review. (Id.) Upon the Court’s request, the parties submitted the Settlement
Agreement to the Court on October 16, 2020.
II.
Analysis
The Sixth Circuit has made it clear that there is a “‘strong presumption in favor of openness’
as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th
Cir. 2016) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir.
1983)). “The burden of overcoming that presumption is borne by the party that seeks to seal them.”
Id. In addition, this burden “is a heavy one: ‘Only the most compelling reasons can justify
nondisclosure of judicial records.’” Id. (quoting In re Knoxville News–Sentinel Co., 723 F.2d 470,
476 (6th Cir. 1983)). “And even where a party can show a compelling reason why certain documents
or portions thereof should be sealed, the seal itself must be narrowly tailored to serve that reason.”
Id.
“In most cases, settlement agreements are not judicial documents that require preservation of
public access.” Altier v. A Silver Lining LLC, No. 2:17-cv-599, 2017 WL 10402564, at *1 (S.D. Ohio
Nov. 15, 2017). As numerous courts have recognized, however, FLSA cases are different. E.g., id.;
Camp v. Marquee Constr., Inc., No. 2:18-CV-831, 2020 WL 59517, at *1 (S.D. Ohio Jan. 6, 2020);
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Smolinski v. Ruben & Michelle Enterprises Inc., No. 16-cv-13612, 2017 WL 835592, at *1 (E.D.
Mich. Mar. 3, 2017). Indeed, “[t]hose courts that have expressly considered the question have held
overwhelmingly, if not unanimously, that the presumption of public access applies to FLSA
settlements.” Smolinski, 2017 WL 835592, at *1 (quoting Wolinsky v. Scholastic Inc., 900 F. Supp.
3d 332, 340 (S.D.N.Y. 2012).
This presumption of public access is supported by two rationales. First, “any settlement under
the FLSA must be approved by the Court.” Altier, 2017 WL 10402564, at *1. As such, public access
is supported by “the general public interest in the content of documents upon which a court’s decision
is based, including a determination of whether to approve a settlement.” Id. (quoting Hens v.
Clientlogic Operating Corp., No. 05–cv–381S, 2010 WL 4340919, at *2 (W.D.N.Y. Nov. 2, 2010);
see also Smolinski, 2017 WL 835592, at *1 (“Court approval of a FLSA settlement agreement is
viewed as a ‘judicial act’ that subjects the agreement to the same presumption of public access as any
‘judicial document.’”). Second, public access to FLSA settlements is also supported by “the ‘privatepublic character’ of employee rights under the FLSA, whereby the public has an ‘independent interest
in assuring that employees’ wages are fair and thus do not endanger the national health and wellbeing.’” Altier, 2017 WL 10402564, at *1 (quoting Hens, 2010 WL 4340919, at *2).
Thus, where, as here, parties seek to keep their FLSA settlement confidential, they must
overcome the strong presumption in favor of public access. See, e.g., Camp, 2020 WL 59517, at *1;
see also Farris v. Communicare Health Services, Inc., No. 1:16 CV 1055, 2016 U.S. Dist. LEXIS
173583, at *2 (N.D. Ohio Dec. 15, 2016). This is not an easy task, as “[a]bsent an ‘extraordinary
reason,’ such settlement agreements should not be sealed.” Camp, 2020 WL 59517, at *1; see also
Stanley v. Turner Oil & Gas Properties, Inc., No. 2:16-cv-386, 2017 WL 5068444, at *1 (S.D. Ohio
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July 24, 2017) (“The public has a keen interest in the outcome of FLSA litigation, and as such,
‘sealing a FLSA settlement rarely, if ever, will be shown to outweigh the public right to access of
judicial documents.’”) (quoting Smolinski, 2017 WL 835592, at *3).
Relatedly, some courts also have held that “[a] confidentiality provision in an FLSA
settlement agreement both contravenes the legislative purpose of the FLSA and undermines the
Department of Labor’s regulatory effort to notify employees of their FLSA rights.” Steele v.
Staffmark Investments, LLC, 172 F. Supp. 3d 1024, 1031 (W.D. Tenn. 2016) (quoting Dees v.
Hydradry, Inc., 706 F. Supp. 2d 1227, 1242 (M.D. Fla. 2010)). This is because “[c]onfidentiality
agreements arguably impair the right of employees to engage in their own protected activity and at
the same time advise co-workers about their own rights under the FLSA, both of which run counter
to the letter and the spirit of the statute.” David v. Kohler Co., No. 1:15-cv-01263-STA-jay, 2019
WL 6719840, at *5 (W.D. Tenn. Dec. 10, 2019). For example, “[e]mployees with firsthand
knowledge and experience of the FLSA might be the most obvious source of information about the
Act for their co-workers.” Id. However, “if they are bound to keep that knowledge to themselves
because of a preexisting agreement, they will be prevented from counseling or assisting co-workers
in their own protected activity.” Id.
Here, the parties have requested that the Court approve their Settlement Agreement—which
includes a confidentiality provision—after in camera review, rather than filing their Settlement
Agreement publicly. (Doc. No. 8 at 2.) However, the only rationale offered in support of their request
is that they “intend to have the Settlement Agreement remain strictly confidential and not become
part of the public record.” (Id.) This is insufficient to justify depriving the public of access to a
settlement under the FLSA. See Altier, 2017 WL 10402564, at *2 (“[T]he parties’ ‘intention’ that
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the agreement remain confidential is not an extraordinary reason sufficient to overcome the strong
presumption of public access to FLSA settlements, and is certainly not sufficient to permit the Court
to ‘set forth specific findings and conclusions which justify nondisclosure to the public.’”) (citation
omitted); see also Snook v. Valley OB-GYN Clinic, P.C., No. 14–cv–12302, 2014 WL 7369904, at
*3 (E.D. Mich. Dec. 29, 2014) (“Generally, courts have ‘roundly rejected’ the argument that
confidentiality provisions in settlement agreements are a sufficient interest to overcome the
presumption of public access.”). Accordingly, the parties’ Motion to Approve Settlement will be
denied.
III.
Conclusion
For the reasons set forth above, the parties’ Motion to Approve Settlement (Doc. Nos. 8, 9) is
DENIED WITHOUT PREJUDICE. By November 13, 2020, the parties shall either (1) file on the
public docket a renewed motion for approval and a revised settlement agreement omitting the
confidentiality provision; (2) file a renewed motion for approval of their confidential Settlement
Agreement that addresses the standards discussed above regarding the sealing of FLSA settlement
agreements and the enforceability of confidentiality provisions within FLSA settlement agreements;
or (3) file a joint notice advising the Court that the parties have withdrawn from the settlement and
the Court should proceed with this litigation.
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
U. S. DISTRICT JUDGE
Date: October 30, 2020
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