The Volokh Conspiracy
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From Project Veritas v. Thibodeau, decided Friday by New York trial court judge Sabrina Kraus:
Petitioner commenced this Article 75 Proceeding seeking a preliminary injunction in aid of arbitration. Petitioner asks that the court to prevent Respondent from publicly disclosing Petitioner's confidential information and publicly disparaging Petitioner and its personnel, in what Petitioner alleges is a clear violation of the parties' Employment Agreement….
Respondent was hired by Petitioner as a video editor in or about December 2019. Under the terms of his Employment Agreement, dated December 17, 2019, Respondent was an at-will employee.
Petitioner alleges its journalism and news-gathering activities involve the use of secret devices and undercover journalists, who sometimes use pseudonyms to protect their identities. Respondent became aware of the methods and devices used by Petitioner to gather information, the methods Petitioner used to portray the information gathered, and the identities of the undercover journalists who gathered such information.
Petitioner requires in its employment agreements—including Respondent's Employment Agreement—that its' employees strictly maintain the confidentiality of such information, both during and after their employment. Relevant provisions from Respondent's Employment Agreement include:
Paragraph 12 of the which states Respondent will maintain and protect the confidentiality of Petitioner' Confidential Information both during and after his employment; and
Paragraph 17 which prohibits Respondent from disparaging Petitioner or its personnel during his employment and after its termination; and
Paragraph 18 which prohibits Respondent from publishing any information about Petitioner, either directly or through his agents, both during and after the term of his employment; and
Paragraphs 12, 17, and 18 also provide that a violation of any one of these provisions paragraphs would cause irreparable harm to Petitioner, and that Project Veritas entitling Petitioner to injunctive relief; and
Paragraph 26 provides for damages for the breach of said provisions including liquidated damages.
On or about September 15, 2020, Respondent voluntarily resigned his position with Petitioner and allegedly embarked on a career as an adult film actor and standup comedian.
In August 2022, Respondent began publishing a series of videos on YouTube which addressed press coverage about several lawsuits between Petitioner and a terminated employee named Antonietta Zappier. Respondent posted said videos to his YouTube channel under the name "Jean Jacques the Cock."
Respondent published seven videos on August 7, 2022; August 8, 2022; August 9, 2022; August 10, 2022; August 15, 2022, September 1, 2022, and January 11, 2023. Petitioner alleges that in each video, Respondent disclosed proprietary and confidential information. Respondent also blatantly disparaged Petitioner and its personnel (including, mainly, Project Veritas' CEO James O'Keefe) in the videos.
In at least one of the videos, Respondent acknowledged that he was violating the terms of his Employment Agreement with Petitioner.
On August 30, 2022, counsel for Petitioner sent Respondent a cease-and-desist letter directing Respondent to take down videos posted as of said date and desist from publishing any further such videos or other public statements disparaging Petitioner or its employees. Respondent did take down the videos but days later, on or about September 1, 2022, published a sixth video—which, Petitioner alleges is still up on YouTube—in which Respondent mocks Petitioner's effort to prevent Respondent from continuing his conduct….
Petitioner filed a formal request for Arbitration on September 7, 2022. In the Arbitration, Petitioner seeks to enforce the terms of the Employment Agreement and obtain damages and a permanent injunction….
CPLR § 7502(c) permits the court to preliminarily enjoin Respondent's conduct during the pendency of the Arbitration pursuant to Articles 62 and 63 of the CPLR, if failing to do so would render any award in Arbitration ineffectual….
On the record before this court Petitioner has asserted the prima facie elements for breach of contract, and there for has established a likelihood of success on the merits. It is uncontested that the parties have a written contract, and that Respondent has engaged in conduct which violates the provisions of that contract. Respondent's videos clearly disparage Petitioner and its officers/employees, and Respondent acknowledges that his is in violation of the terms of the Employment Agreement on more than one instance in the videos.
Respondent also discloses the technology used by Petitioner to obtain information from sources, the manners in which the information is collected by undercover journalists, and the name of at least one undercover journalist.
Moreover, in the Employment Agreement Respondent specifically agreed to injunctive relief in the event of a breach, and such provisions are enforceable….
A decision granting the TRO and sealing the portions of the filings to be kept confidential will preserve the status quo ante between the parties pending the outcome of the arbitration.
The documents requested to be sealed, concern proceedings relating to proprietary and confidential information belonging to Petitioner that Respondent was only privy to pursuant to his employment as a videographer. Pursuant to the Employment Agreement between the parties Respondent agreed to keep such information confidential.
Under 22 NYCRR § 216.1, the Court is permitted to seal court records, in whole or in part, "upon a written finding of good cause" specifying the grounds thereof.
"New York courts have authorized sealing the records of Article 75 proceedings involving arbitrable disputes since the matter properly belongs in arbitration and the material filed with the court belongs not in the court, but in the files of the arbitrating body."
The confidential information Petitioner seeks to seal concerns its undercover journalistic operations, which are described in detail in the Petition. Specifically, the confidential information relates to the way Petitioner gathers news, the technology it uses, the name of an undercover journalist, and how the organization edits and presents the information it receives from its undercover journalists.
If the court does not seal the relevant portions of the Petition, the confidential information will be republished, which would undermine the purpose of the arbitration.
Petitioner has taken reasonable steps to protect the confidentiality of such information, such as, for example, requiring its employees to sign employment agreements containing provisions that protect the confidentiality of such information.
Since the underlying arbitration proceeding is properly before the American Arbitration Association, and there is a confidentiality agreement pertaining to the information at issue, it is proper for the Court to seal the documents as requested by Petitioner. Moreover, there is no countervailing public interest that would be furthered by the disclosure of this information….
WHEREFORE it is hereby:
ORDERED that Respondent PATRJCE THIBODEAU, is hereby enjoined during the pendency of the underlying arbitration from:
(a) publishing videos to YouTube, or publishing statements on any other public forum, which disclose Project Veritas' Confidential Information; and
(b) publishing videos to YouTube, or publishing statements to any other public forum, which disparage Project Veritas and its personnel; and
(c) using and/or disclosing Project Veritas' proprietary and Confidential Information ….
Congratulations to Justin Kelton, who represents Project Veritas.