Henri Bendel, Inc. v. Illuminum Incorporated Ltd.

Filing 5

ORDER denying #1 Motion to File Document Under Seal. Henri Bendel shall file its complaint and exhibits as submitted to the Court for in camera review with financial account information redacted. Signed by Magistrate Judge Terence P. Kemp on 3/23/2017. (agm) Modified on 3/23/2017 (agm).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Henri Bendel, Inc.,

:

Plaintiff,

:

v.

:Case No. 2:17-cv-198
:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Illuminum Incorporated Ltd.,
Defendant.

:
ORDER

Plaintiff Henri Bendel, Inc. filed a motion for leave to
file under seal the complaint and attached exhibits A through G.
By order dated March 10, 2017, the Court directed Henri Bendel to
supplement its motion consistent with the requirements set forth
in Shane Group v. Blue Cross Blue Shield of Michigan, 825 F.3d
299 (6th Cir. 2016).
memorandum.

Henri Bendel now has filed its supplemental

For the following reasons, the motion for leave to

file under seal will be denied.
I.
In Shane, the Court of Appeals made explicit the obligations
of both the party requesting nondisclosure and the court
considering such a motion.

In addressing the differences in such

consideration between the discovery stage and the adjudication
stage, the Court explained:
“At the adjudication stage, however, very
different considerations apply.” Joy v. North, 692
F.2d 880, 893 (2d Cir. 1982). The line between these
two stages, discovery and adjudicative, is crossed when
the parties place material in the court record.
Baxter, 297 F.3d at 545. Unlike information merely
exchanged between the parties, “[t]he public has a
strong interest in obtaining the information contained
in the court record.” Brown & Williamson Tobacco Corp.
v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)....
Id. at 305.

Further citing to Brown & Williamson, 710 F.2d at 1179, the
Court of Appeals noted that “courts have long recognized ... a
presumption in favor of openness as to court records.”
305.

Id. at

Accordingly, “[t]he burden of overcoming that presumption

is borne by the party that seeks to seal them.”

Id., citing In

re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001).

This burden

is “a heavy one” and “‘[o]nly the most compelling reasons can
justify non-disclosure of judicial records.’”

Id., quoting In re

Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983).
That is, “[t]he parties’ asserted bases for sealing” cannot be
“brief, perfunctory or patently inadequate.”

Id. at 306.

The

mere reference to a designation of confidentiality is a
“protective-order justification[], not [a] sealing-order one[].”
Id.

Additionally, “the proponents of closure bear the burden of

showing that ‘disclosure will work a clearly defined and serious
injury[.]’”

Id. at 307, quoting Cendant, 260 F.3d at 194.

Specificity in delineating the injury is essential.

Id. at 307-

308. Typically, only trade secrets, information covered by a
recognized privilege and information required by statute to be
maintained in confidence is enough to overcome the presumption of
access.

Id. at 308.

Moreover, even if a party demonstrates a compelling reason
for filing under seal, “the seal itself must be narrowly tailored
to serve that reason.”

Id. at 305, citing Press-Enter. Co. v.

Superior Court of California, Riverside Cnty., 464 U.S. 501, 50911 (1984).

As a result, “the proponent of sealing” is required

to “‘analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations.’”

Id. at 305-

306, quoting Baxter, 297 F.3d at 548.
II.
Henri Bendel seeks to file under seal its complaint for
breach of contract and corresponding exhibits relating to a

-2-

confidential settlement agreement.

The exhibits consist of the

agreement itself, emails discussing the settlement, and payment
confirmations.

Henri Bendel has submitted copies of these

documents to the Court for in camera review.

Financial account

numbers have been redacted from these copies.
In its supplemental memorandum, Henri Bendel has attempted
to explain document by document why sealing is necessary here.
Its justification, however, can be characterized as nothing more
than the terms of the agreement itself and the general
confidentiality courts typically have afforded settlement
agreements.

Beyond this, Henri Bendel contends, without any

citation to authority, that its negotiation and settlement
strategies are proprietary.

The Court has reviewed the documents

and, absent any explanation from Henri Bendel, the basis for this
characterization of its strategies is not evident.

Additionally,

it asserts, without details, that the disclosure of such
proprietary information will result in competitive disadvantage.
Again, without additional specifics, the Court has no basis to
reach such a conclusion.

In short, Henri Bendel’s reasons for

seeking leave to file under seal remain insufficient to meet the
“demanding requirements for a seal” as set forth in Shane.
Moreover, the Court is not persuaded that Henri Bendel’s
request to seal the entire complaint and all exhibits can be
characterized as narrowly tailored under Shane.

Henri Bendel

explains that redaction was not possible because “[a]ll parts of
the documents relate to the confidential settlement negotiations
of the Parties and do not contain extraneous information.”
Accepting Henri Bendel’s expansive view would require the Court
to maintain the entire case under seal.

Such a scenario would be

inconsistent with the “strong presumption in favor of openness as
to court records.”

Shane, at 305.

For these reasons, the Court will deny the motion to seal.
-3-

Henri Bendel will be directed to file its complaint and exhibits
as submitted to the Court for in camera review with financial
account information redacted.
III.
The motion for leave to file under seal (Doc. 1) is denied.
Henri Bendel shall file its complaint and exhibits as submitted
to the Court for in camera review with financial account
information redacted.
MOTION FOR RECONSIDERATION
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

-4-