Free Speech

Bronx Conservatory of Music Can't Seal Sexual Harassment Counterclaim Against It

"Bronx Conservatory does not cite (and this Court has not found) any case, in this jurisdiction or elsewhere, in which an employer accused of sexual harassment has succeeded in sealing the pleading containing that accusation on any of the grounds asserted here."

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From Magistrate Judge Barbara Moses's decision yesterday in Bronx Conservatory of Music, Inc. v. Kwoka & Bronx School for Music, Inc.:

In its complaint …, Bronx Conservatory, a music school, alleges that Kwoka, its former Executive Director, took confidential information with him (on a Bronx Conservatory laptop) when he left his employment in 2020, and thereafter used that information to establish a competing music school—Bronx School—and to lure away both students and faculty from Bronx Conservatory. Plaintiff asserts claims against both defendants for misappropriation of trade secrets, copyright infringement, unfair competition, conversion, and unjust enrichment, and against Kwoka for breach of fiduciary duty.

In their responsive pleading, defendants deny the material allegations of the complaint, interpose numerous affirmative defenses, and assert five counterclaims [including] for "sexual harassment of Philip Kwoka" …. [P]laintiff proposes to redact [the sexual harassment counterclaim] almost in its entirety—including, apparently, its caption, quoted in the preceding sentence. Plaintiff argues that the material allegations comprising that sexual harassment counterclaim should be hidden from public view because they are "scandalous and unsupported," because plaintiff believes the counterclaim was asserted "without legitimate purpose, and solely for its in terrorem effect" and because it is "unrelated to the case-in-chief" and thus this Court is "not likely to have pendent jurisdiction." …

The parties' pleadings, including answers and counterclaims, are unquestionably judicial documents [to which a "heavy" presumption of public access attaches]…. Moreover, in this case the allegations sought to be redacted are neither peripheral nor tangential to the fourth counterclaim but, rather, lie at its "very heart," such that permitting only the redacted version to remain unsealed would keep the public wholly in the dark as to the nature of a claim that has been asserted by Kwoka, denied by Bronx Conservatory, and is now pending before this Court for resolution. "In such situations, the public cannot 'have confidence in the [Court's] administration of justice' without being able to see the specific allegations underlying the case." …

[Nor has] Bronx Conservatory … met its burden of demonstrating "countervailing factors," "competing considerations," or "higher values," sufficient to overcome the presumption of access…. Bronx Conservatory does not cite (and this Court has not found) any case, in this jurisdiction or elsewhere, in which an employer accused of sexual harassment has succeeded in sealing the pleading containing that accusation on any of the grounds asserted here.

To the contrary: it is well-settled that "[g]eneralized concern[s] of adverse publicity" and reputational injury—the only potential harms articulated in plaintiff's letter-motion—cannot justify an order sealing a core judicial document…. "[T]he natural desire of parties to shield prejudicial information contained in judicial records … cannot be accommodated by courts without seriously undermining the tradition of an open judicial system." Thus, "the courts generally reject negative publicity 'as a basis for overcoming the strong presumption of public access to [the allegedly prejudicial] items.'"

{By the same token, the fact that the unredacted counterclaim could embarrass or harm the reputation of the individual Bronx Conservatory executive who allegedly perpetrated the harassment (presently a non-party, but identified by name in the counterclaim) is an insufficient reason to seal a core judicial document. See, e.g., Oliver v. New York State Police (N.D.N.Y. 2020) (denying motion to seal, inter alia, documents describing "Plaintiff's complaint that an investigator with whom she worked had sexually harassed her"); Lytle v. JPMorgan Chase (S.D.N.Y. 2011) (denying motion to redact, from internal investigatory documents, "the names of the individuals whose conduct JPMC investigated in response to Lytle's complaints regarding alleged harassment and discrimination"); Ottati v. City of Amsterdam (N.D.N.Y. 2010) (granting motion, made after the filing of summary judgment motions in a sex discrimination case, to unseal, inter alia, the defendant's internal investigatory report into plaintiff's allegations).}

Similarly, plaintiff's assertion that Kwoka's allegations are false cannot justify an order sealing those allegations. Whether they are true or false is precisely the question that the parties have placed before this Court. Thus, it has long been understood that "[t]he question of public access to the contested documents is … completely separate from the merits of the underlying action."

Finally, plaintiff's assertion that this Court lacks "pendent" (supplemental) jurisdiction over the fourth counterclaim is misplaced. Moreover, plaintiff's reliance on the "jurisdictional infirmity" of the fourth counterclaim as a basis for sealing it, is self-defeating…. [P]laintiff has not made any motion to dismiss that counterclaim on jurisdictional grounds. Should it do so, this Court would be required to analyze the allegations made in the challenged pleading to determine the motion. This, in turn, would render the pleading a judicial document subject to a strong presumption of public access. Likewise, plaintiff's assumption that the fourth counterclaim could remain sealed if it made and won a motion to dismiss that counterclaim, is mistaken. "[T]he Second Circuit has rejected the contention that the presumption of access is dependent upon the disposition of the underlying motion."

{The Court's supplemental jurisdiction is limited to "claims that are so related to claims in the action within [the Court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Whether Kwoka's sexual harassment counterclaim meets this standard may be debatable. However, Kwoka brought that counterclaim pursuant to, inter alia, Title VII of the Civil Rights Act of 1964, Title VII claims come within the Court's original jurisdiction, rendering a supplemental jurisdiction analysis unnecessary.}