American Professional Agency, Inc. v. NASW Assurance Services, Inc.

121 F. Supp. 3d 21, 2013 U.S. Dist. LEXIS 190016, 2013 WL 11241376
CourtDistrict Court, District of Columbia
DecidedJune 24, 2013
DocketCivil Action No. 12-1488 (GK)
StatusPublished
Cited by8 cases

This text of 121 F. Supp. 3d 21 (American Professional Agency, Inc. v. NASW Assurance Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Professional Agency, Inc. v. NASW Assurance Services, Inc., 121 F. Supp. 3d 21, 2013 U.S. Dist. LEXIS 190016, 2013 WL 11241376 (D.D.C. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

Gladys Kessler, United States District Judge

Plaintiff American Professional Agency, Inc. (“Plaintiff’ or “APA”) brought this diversity action against NASW Assurance Services, Inc. and the National Association of Social Workers, Inc. (“Defendants”) for breach of contract. Defendants filed a counterclaim against Plaintiff, alleging violation of the Lanham Act, 15 U.S.C. § 1051, et seq., and various common law torts. The parties have now reached a settlement agreement resolving all claims.

This matter is presently before the Court on the Plaintiffs Motion Requesting Sealing of Consent Order and Judgment [Dkt. No. 38]. Upon consideration of the Motion, an amicus curiae brief,1 the entire record herein, and for the reasons stated below, Plaintiffs Motion is denied.

I. BACKGROUND

On September 7, 2012, APA filed a publicly-available Complaint alleging that Defendants had breached a contract they had with APA whereby APA provided insurance services to Defendant National Association of Social Workers, Inc. (“NASW”) and an NASW affiliate would promote and market the insurance program [Dkt. No. 1]. Compl. ¶¶2-5; 46-49.

[23]*23On October 1, 2012, Defendants filed a publicly-available Answer - and Counterclaim [Dkt. No. 4]. They alleged, among other things, that Plaintiff violated the Lanham Act’s prohibition on unfair competition by using false, deceptive and' misleading consumer advertising. Counterclaim ¶¶ 58-60.

On November 19, 2012, APA amended its complaint to include Lanham Act claims [Dkt. No. 19]. Am. Compl. ¶¶ 100-108. On February 12, 2013, Defendants filed an Answer to the Amended Complaint and their First Amended Counterclaim [Dkt. No. 32].

On April 11, 2013, the Parties filed a Joint Motion to Approve Consent Judgment [Dkt. No. 34] and a Joint Motion for Leave to File Document Under Seal [Dkt. No. 35]. - They indicated that they had agreed upon the terms of a Consent Order, but that “resolution of the matters in .this case depends in part on maintaining the confidentiality of the terms of the Consent Order and Judgment.” Jt. Mot. for Leave to File Doc. Under Seal ¶ 5.

On April 16, 2013, the Court denied the Motion without prejudice and ordered the Parties to file a motion to seal the Consent Order and Judgment that addressed the factors relevant to sealing under D.C. Circuit precedent. [Dkt. No. 37]. On May 7, 2013, APA filed the instant Motion Requesting Sealing of Consent Order and Judgment [Dkt. No. 38] (‘Motion'). Defendants neither joined nor opposed that Motion. On May 17, 2013, this Court appointed Public Citizen to submit an amicus curiae brief on the issue of the' sealing of the Consent Order and Judgment [Dkt. No. 39] On June 3, 2013, the amicus curiae brief was filed [Dkt No. 42].

II. STANDARD OF REVIEW

“[T] he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The decision to seal court records is “left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” United States v. Hubbard, 650 F.2d 293, 316-17 (D.C.Cir.1980) (quoting Nixon, 435 U.S. at 599, 98 S.Ct. 1306) (alterations in the original).

The starting point in considering a motion to seal "court records is a “strong presumption in favor of public access.” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C.Cir.1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C.Cir.1991)). In Hubbard, our Court of Appeals identified six factors to be considered in deciding whether the presumption should be overcome:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

Nat’l Children’s Ctr., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317-22), The Court will address each in turn.

III. ANALYSIS

A. Need for Public Access to the Documents at Issue

The first Hubbard factor to be considered is the need for public access to the documents at issue. Here, the APA seeks [24]*24to seal a Consent Order and Judgment, the Court’s final determination in this ease.

APA contends that the need for public access to the Consent Order and Judgment is minimal because the Consent Order has never been introduced as evidence or discussed in the litigation. Motion at 3.

However, a consent order “must be treated as a judicial act,” not as a mere contract between the parities. Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1125 (D.C.Cir.1983) (internal quotation marks omitted). If the consent order is approved and entered by the Court, it would become the Court’s decision — a type of judicial record in which the public always has a strong interest. See S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir.1993) (‘Once a settlement is filed in district court, it becomes a judicial record. The presumption in favor of the public’s common law right of access to court records therefore applies to settlement agreements that are filed and submitted to the district court for approval.') (citation omitted); In re Polemar Constr. Ltd. P’ship, 23 Fed.Appx. 423, 425 (6th Cir.2001) (‘There is a strong public .policy in favor of public access to judicial proceedings, most particularly as relates to a court’s order or decree, embodying a settlement.') (citing Nat’l Children’s Ctr., 98 F.3d at 1409).

Thus, the fact that the Consent Order has not been introduced as evidence or discussed in the litigation does not change the fact that, once entered, it becomes a “judicial record” subject to the presumption of access to the public.

APA also argues that the public’s need for access is not significant because this ease is merely a commercial dispute “that does not implicate public health, public safety!,] or public funds.” Motion at 4. First, the Court notes that this “misconstrues the relevant inquiry and completely ignores the strong public interest in the openness of judicial proceedings, which' exists irrespective of whether the proceedings at issue relate to disputes among private litigants.” Upshaw v. United States,

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121 F. Supp. 3d 21, 2013 U.S. Dist. LEXIS 190016, 2013 WL 11241376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-professional-agency-inc-v-nasw-assurance-services-inc-dcd-2013.