Whether a contractual confidentiality provision in an arbitration agreement can override the First Amendment's presumption of public access to judicial documents in an employment discrimination case

No question identified. : TO: The Honorable Sonia Sotomayor, Associate Justice of the United States Supreme Court and Circuit Justice for the United States Court of Appeals for the Second Circuit Applicant respectfully seeks a 30-day extension of time within which to file a petition for a writ of certiorari to review the Second Circuit’s judgment in this case, from January 2, 2024, to February 1, 2024. This application is being filed on December 18, 2023— more than 10 days before the petition is due. See S. Ct. R. 13.5. Respondent’s counsel has confirmed that IBM does not oppose the extension. In support of this request, the applicant states as follows: 1. The Second Circuit issued its opinion in this matter on August 24, 2023. App. la. It denied rehearing en banc on October 4, 2023. App. 16a. Copies of the appellate opinion issued in this case, as well as the denial of rehearing en banc are attached. 2. This case presents an important question that regarding the interaction between the First Amendment, the presumption of public access, and the Federal Arbitration Act “FAA’), 9 US.C. §§ 1 et seq. The issue in this matter is whether an employer who has been found liable for discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., can shield such a finding from public view in court—and hide it from other employees who could benefit from the decision— through use of an arbitration agreement. 3. Applicant is a former employee of IBM who was terminated in a layoff that she alleged violated the ADEA. See App. 3a-4a. Upon her termination, Applicant entered into a severance agreement with IBM that specifically allowed 1 her to pursue an ADEA claim in arbitration. See App. 3a-4a. Applicant brought her ADEA claim in arbitration, and she won her case. See App. 3a-5a. After receiving her final award, she initiated this action under the FAA, requesting that the award be confirmed and unsealed. See App. 4a-5a. IBM then paid the award. See App. 5a. Seemingly recognizing that the FAA creates a mandatory right to confirmation, and given that its arbitration agreement provides for seeking confirmation in court, IBM did not oppose confirmation. See 9 U.S.C. § 9; App. 4a5a. The District Court confirmed the award, and it ordered that the award be unsealed. See App. 5a. IBM appealed the unsealing order, and the Panel reversed the District Court, holding that, in spite of the strong public of public access to judicial documents, the arbitration award had to remain sealed due to the arbitration agreement’s confidentiality provision. See App. 5a-15a. 4. The Panel erred in holding that the arbitration agreement can overcome the dictates of the First Amendment, concluding that the policy of confidentiality in arbitration overcomes all else. The Panel’s decision to keep Petitioner’s award confidential contradicts decades of Second Circuit precedent and endorses this employer’s strategy of using arbitral confidentiality to undermine the ability of its employees to share information with one another so to allow them to advance their ADEA claims. However, it is black letter law that a contractual confidentiality provision does not overcome the First Amendment presumption of public access. See Park Avenue Life Insurance Co. v. Allianz Life Insurance Co. of North America, 2019 WL 4688705, at *3 (S.D.N.Y. Sept. 25, 2019); DXC Tech. Co. v. Hewlett Packard Enter. Co., 2019 WL 4621938, at *2 (S.D.N.Y. Sept. 11, 2019). As Judge Liman explained in another case ordering the unsealing of related records concerning ADEA claims against IBM in arbitration, “[t]he Supreme Court and Second Circuit have long held that there is a presumption of immediate public access to judicial documents under both the common law and the First Amendment.” Lohnn v. International Business Machines Corp., 2022 WL 36420, at *6 (S.D.N.Y. Jan. 4, 2022) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006)). Furthermore, Applicant