Exhibit D — Bofa Ca Unemployment (Dkt. 344.8)

Summary

Exhibit D, Document 344-8 filed October 3, 2024 in Case 3:21-md-02992-GPC-MSB (S.D. Cal.), is a copy of an order in Vuz v. DCSS III, Inc. (d/b/a Gossip Grill), No. 3:20-cv-00246-GPC-AGS, granting plaintiff's renewed ex parte application for leave to file documents under seal [ECF No. 125]. The plaintiff sought to redact the settlement amount and an attorney lien amount from papers supporting a motion for settlement approval and dismissal under Rule 41(a)(2). The Court reviews the presumption of public access and holds the Rule 26(c) good cause standard applies because the motion is attenuated from the merits. It notes the earlier application was denied without prejudice for lack of good cause before turning to the renewed arguments.

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Case 3:21-md-02992-GPC-MSB   Document 344-8   Filed 10/03/24   PageID.8002   Page
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                         Exhibit D
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 8                               UNITED STATES DISTRICT COURT
 9                              SOUTHERN DISTRICT OF CALIFORNIA
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11   ASHLEY R. VUZ,                                      Case No.: 3:20-cv-00246-GPC-AGS
12                                      Plaintiff,
                                                         ORDER GRANTING PLAINTIFF’S
13   v.                                                  RENEWED EX PARTE
                                                         APPLICATION FOR LEAVE TO
14   DCSS III, INC. (d/b/a GOSSIP GRILL),
                                                         FILE DOCUMENTS UNDER SEAL
     et al.,
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                                      Defendants.        [ECF No. 125]
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18         On June 14, 2021, following the Court’s order denying without prejudice
19   Plaintiff’s previous motion to seal (ECF No. 124), Plaintiff filed a renewed ex parte
20   application for leave to file under seal documents in connection to the Motion for
21   Settlement Approval and Dismissal Pursuant to Rule 41(a)(2) filed by Plaintiff and
22   Defendants DCSS III, Casteel, Rocha, and Wynne (ECF No. 126). ECF No. 125.
23   Plaintiff seeks to file the related memorandum of points and authorities and supporting
24   declaration with the settlement amount and amount of an attorney lien redacted, and to
25   file unredacted versions under seal. For the reasons that follow, the Court GRANTS
26   Plaintiff’s application.
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 1         There is a presumptive right of public access to court records based upon the
 2   common law and the first amendment. See Nixon v. Warner Commc’ns, Inc., 435 U.S.
 3   589, 597 (1978); Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206,
 4   1212–13 (9th Cir. 2002). Nonetheless, access may be denied to protect sensitive
 5   confidential information. “Unless a particular court record is one ‘traditionally kept
 6   secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City
 7   & Cty. of Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 2006) (citing Foltz v. State Farm
 8   Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). To overcome this strong
 9   presumption, a party seeking to seal a judicial record attached to a dispositive motion
10   must articulate justifications for sealing that “outweigh the historical right of access and
11   the public policies favoring disclosure.” Id. at 1178–79.
12         Parties seeking to seal documents in a dispositive motion must meet the high
13   threshold requiring “compelling reasons” with specific factual findings to support a
14   sealing. Id. at 1178–80. However, for non-dispositive motions, the parties must show a
15   lesser “particularized showing” under the “good cause” standard pursuant to Federal Rule
16   of Civil Procedure 26(c) to rebut the presumption of public access. Id. at 1180. The
17   Ninth Circuit has suggested that the technical dispositive or non-dispositive label on the
18   motion does not necessarily control, but rather that courts must consider how closely the
19   motion bears on issues central to the merits. See In re Midland National Life Insurance
20   Company Annuity Sales Practices Litigation, 686 F.3d 1115 (9th Cir. 2012); Ctr. for Auto
21   Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1100 (9th Cir. 2016). Without Ninth
22   Circuit guidance on the issue, lower courts have differed on the question of whether a
23   motion for settlement approval is dispositive or non-dispositive for the purpose of
24   deciding a motion to file documents under seal. See Select Portfolio Servicing v.
25   Valentino, No. C 12-0334 SI, 2013 WL 1800039, at *2 (N.D. Cal. Apr. 29, 2013)
26   (collecting cases).
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 1         The Court reiterates its previous finding that the present application to seal should
 2   be evaluated under the Rule 26(c) “good cause” standard because resolving Plaintiff’s
 3   Rule 41(a)(2) motion is fairly attenuated from the merits of the case. See Fed. R. Civ. P.
 4   41(a)(2); Kamakana, 447 F.3d at 1179 (quoting Seattle Times Co. v. Rhinehart, 467 U.S.
 5   20, 33 (1984)) (noting that non-dispositive motions “are often ‘unrelated, or only
 6   tangentially related, to the underlying cause of action’”); Foltz, 331 F.3d at 1135–36
 7   (quoting Rushford v. The New Yorker Magazine, 846 F.2d 249, 252 (4th Cir. 1988))
 8   (finding good reason to distinguish right of access to materials attached to summary
 9   judgment motions from those attached to non-dispositive motions because “summary
10   judgment adjudicates substantive rights and serves as a substitute for trial”).
11         “[B]road allegations of harm, unsubstantiated by specific examples or articulated
12   reasoning, do not satisfy the Rule 26(c) test” for good cause. In re Roman Archbishop of
13   Portland Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (quoting Beckman Indus., Inc. v.
14   Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). Confidential settlement agreements
15   may be protected under Rule 26(c), but the parties still must demonstrate good cause for
16   protection. See Phillips, 307 F.3d at 1212; cf. Foltz, 331 F.3d at 1136–38 (existence of
17   confidentiality provisions in protective order governing discovery does not constitute
18   compelling reason for maintaining documents under seal when they are attached to
19   dispositive motion).
20         The Court previously denied Plaintiff’s application to file the documents under seal
21   without prejudice because Plaintiff had not articulated good cause for sealing. See ECF
22   No. 124 at 4. In Plaintiff’s renewed motion, she raises several points in support of her
23   argument that good cause exists to file the unredacted documents under seal. Plaintiff
24   notes that the settling defendants, not Plaintiff, had sought to include the confidentiality
25   provision in the settlement agreement, and thus the settlement could be jeopardized if she
26   could not proceed without disclosing the settlement amount. Plaintiff also explains that
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 1   the terms of the settlement agreement would ordinarily not even need to be filed with the
 2   Court, and that it is only required because non-settling defendants would not agree to a
 3   stipulation Rule 41(a)(1)(A)(ii). Additionally, Plaintiff notes that settling defendants
 4   maintain that revealing the settlement amount would harm their restaurant’s business.
 5         The Court finds that based on the unique circumstances of the present case, good
 6   cause supports granting the limited scope sealing order sought by Plaintiff. Plaintiff
 7   intends to publicly file the documents with narrowly tailored redactions. The only
 8   information that would be shielded from public view is the settlement amount and
 9   reference to the amount of a lien that would reveal the settlement amount. This is
10   information that would not ordinarily be publicly filed, and requiring Plaintiff to disclose
11   the settlement amount in these circumstances would require the parties to go back to the
12   negotiating table, potentially prolonging the litigation. While the Court is not necessarily
13   convinced that the potential harm to settling defendants’ business as a result of disclosure
14   of the settlement amount would on its own provide good cause in most circumstances,
15   this point does support Plaintiff’s assertion that the confidentiality provision was the
16   result of serious negotiations between the parties and was not merely included as a matter
17   of course. Requiring disclosure of the settlement amount would undermine the parties’
18   efforts to resolve the litigation on mutually agreeable terms, and would only marginally
19   promote the public interest in accessing judicial records given the limited scope of the
20   sealing order sought.
21         The Court therefore finds that in the interests of expeditious resolution of this
22   litigation, good cause supports maintaining the confidentiality of the settlement amount
23   for the purposes of the motion under Rule 41(a)(2).
24   \\\
25   \\\
26   \\\
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 1         The Court accordingly GRANTS Plaintiff’s application to seal and DIRECTS the
 2   Clerk of Court to file under seal the documents lodged at ECF No. 126. The Court also
 3   ORDERS that on or before June 18, 2021, Plaintiff shall publicly file redacted versions
 4   of the Declaration of Ryan A. Graham, Esq. in Support of Motion for Settlement
 5   Approval and Memorandum of Points and Authorities in Support of Motion for
 6   Settlement Approval.
 7         IT IS SO ORDERED.
 8   Dated: June 16, 2021
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