Case: 1:17-cv-02521-DAP Doc #: 36 Filed: 02/01/18 1 of 8.

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

W.6 Restaurant Group Ltd., et al.,

Case No. 1:17-cv-02521
Plaintiffs,

v. Judge Dan Aaron Polster

Richard Bengtson, et al.,

Defendants.

REPLY OF EUGENE VOLOKH SUPPORTING MOTION TO INTERVENE

The parties neither engage Prof. Volokh’s authorities nor his core argument:

The Agreement, though unfiled, is presumptively subject to public access because it

was presented to the Court for adjudication, retained and used by the Court in

entering rulings and orders, and necessary to understand the ongoing contempt

proceedings. And the parties make no attempt to meet their burden to defeat this

presumption by proving that disclosure would harm specific government interests.

Instead, they claim that the Agreement “should remain confidential pursuant

to its express terms and conditions” or because they chose not to file it.1 But as Prof.

Volokh already demonstrated, these claims are irrelevant to the parties’ burden on

his motion, and provide no lawful basis to restrict public access to the Agreement.

1Defs.’ Resp. to Volokh Mot., ECF No. 34 at 1 (Jan. 29. 2018); Pls.’ Resp. to Volokh
Mot., ECF No. 35 at 1 (Jan. 30, 2018) (joining Defendants’ response).

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I. The public has a qualified right of access to the Agreement.

The parties do not dispute that the Agreement is “necessary to understand the

merits of [this] civil contempt proceeding.” Newsday v. Cty. of Nassau, 730 F.3d 156,

164 (2d Cir. 2013). The Plaintiffs allege a “litany of violations,”2 and Bengtson

disagrees about what the Agreement “specifically states,” asks this Court to accept

his account of the “letter and spirit” of the Agreement, and rule that its jurisdictional

clause cannot support contempt sanctions.3 Following his testimony and a court

Order, his lawyers submitted a sworn affidavit describing their advice about the

Agreement’s provisions.4 However these issues may be resolved, the public—and

Prof. Volokh—can only “understand the merits” of the contempt proceedings by

knowing what the Agreement actually says. It is therefore “covered by the First

Amendment’s presumptive right of access.” Newsday, 730 F.3d at 164.

Plaintiffs sought the Court’s involvement to enforce the Agreement. MW

Mapleleaf Partners v. Fifth Third Bank, 2010 WL 5387830, at *1 (E.D. Ky. Dec. 6,

2010) (when party “seeks court involvement in enforcing [settlement] terms, the

common law and constitutional access rights presumptively apply to make the

decisional basis open to the public.”). And the Agreement must be used to adjudicate

the contempt proceedings, making it a “judicial document” subject to the common-law

2 Pls.’ Sanctions Br. ECF No. 25 at 2-3 & 4-6 (Jan. 10, 2018).
3 Bengtson’s Hrg. Resp., ECF No. 24, at 2, 5 & 8–10 (Jan. 8, 2018); Bengston’s
Sanctions Resp. ECF No. 26, at 3-5.
4 Affidavit of Defense Counsel, ECF 33 at ¶ 7 (Jan. 26, 2018).

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right of access. See Volokh Mot., ECF No. 29 at 3-4 (Jan. 17, 2018) (citing cases); see

also FTC v. Standard Fin. Mgmt., 830 F.2d 404, 409 (1st Cir. 1987) (access right

applied to settlement-related documents submitted privately to court at post-

settlement hearing because “submissions [that] come to the attention of the district

judge . . . can fairly be assumed to play a role in the court’s deliberations.”).

At the Plaintiffs’ request, the Court has already used the Agreement,

determining that it had “continuing jurisdiction to enforce the agreement’s terms,”

and that “Defendant Bengtson had violated the parties’ December 13 agreement.”5

Presumably on this basis, the Court ordered him “to take [his video] down

immediately” and enjoined further speech about the Barley House.6 And the Court

used the Agreement when it ordered Defendants’ counsel to submit a sworn affidavit

about how they advised their client to comply with it. On these undisputed bases

alone, the public has a qualified common-law right of access to the Agreement,

because “relevant documents which are submitted to, and accepted by, a court of

competent jurisdiction in the course of adjudicatory proceedings, become documents

to which the presumption of public access applies.” Standard Fin. Mgmt., 830 F.2d at

409.

5Minutes of Dec. 21, 2017 Telephone Conference, ECF No. 18 at 2-3.

6 Id. at 3. Even the parties’ submissions to date required the Court to use the
Agreement, and it must be deemed to have been expressly or implicitly introduced as
evidence. See, e.g., Fed. R. Evid. 1002 (“An original writing . . . is required in order to
prove its content unless these rules or a federal statute provides otherwise.”); Fed. R.
Evid. 1101(b) (the Rules apply to “contempt proceedings, except those in which the
court may act summarily”).

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II. The parties’ decision not to file the Agreement is immaterial.

The Defendants state that the Agreement was “intentionally not docketed.”7

But whether the right of access applies to the Agreement depends on whether it is

used to adjudicate the contempt proceedings and is necessary to understand them,8

not whether it was docketed. Newsday, 730 F.3d at 164 n. 13 (“To the extent the

district court has failed to docket certain filings, we direct it to do so.”); Jessup v.

Luther, 277 F.3d 926, 929–30 (7th Cir. 2002) (reversing denial of motion to intervene

and ordering disclosure of settlement agreement); Picard v. Perrigo, 951 F. Supp. 679,

684 (W.D. Mich. 1996) (document that party briefed but “intentionally chose not to

submit” to the Court became judicial record once it was “submitted to the Court” “to

induce reliance upon [it]”).

Jessup is particularly instructive, because the trial court helped the parties

reach a settlement agreement, and retained a copy “to resolve any disputes the

parties may have over its meaning.” 277 F.3d at 929–30. Even though it was not

publicly docketed, the settlement agreement had to be disclosed because “the district

court’s files now contain a document that reflects input by a federal judge, and so the

document is presumptively a public document.” Id.

7ECF No. 34 at 1.
8These proceedings include the Court’s entry of its December 21 Order. See fn. 6
above and accompanying text. And whether the Court ultimately determines that the
Agreement supports contempt sanctions is immaterial to whether the access right
applies, because that determination requires the Court to construe its remedies.

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As Jessup recognized, judicial involvement in framing the terms of a

settlement also implicates the access right. Even “judicial kibitzing” in settlement

discussions “is official behavior,” and “[t]he public has an interest in knowing what

terms of settlement a federal judge would approve and perhaps therefore nudge the

parties to agree to,” because “the facts and consequences of [the judge’s] participation

are public acts.” 277 F.3d at 929.

Had the parties not asked the Court to construe its provisions or adjudicate its

enforcement, the Agreement might still have been considered “a private, non-judicial

document” that did not have to be “place[d] . . . on the public docket.”9 They could

have jointly sought leave to dismiss the dispute the Agreement resolved without

presenting it to the Court for retention and continued adjudication, and “the

settlement agreement that motivated the stipulation of dismissal [would] then have

the identical status as any other private contract.” Jessup, 277 F.3d at 928.

But the parties made different choices. They drafted an Agreement that

permits them to request adjudication by the Court,10 rather than selecting non-

judicial fora to which the public’s right of access would not apply. They submitted the

Agreement to the Court on December 14, 2017,11 and asked the Court to adjudicate

its provisions. The Agreement is therefore subject to the public’s qualified right of

access, and the parties bear a heavy burden to justify sealing it.

9 ECF No. 35 at 1; ECF No. 34 at 1.

10 ECF No. 24 at 3.

11 ECF No. 33 at ¶7.

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III. The parties have failed to justify withholding the Agreement.

Prof. Volokh summarized the controlling standards in his motion, but the

parties ignored them, and identified no information that could harm any government

interest with any degree of likelihood. To the contrary, the parties have themselves

made detailed allegations about many of its provisions.

The parties’ sole justification for restricting access to the Agreement appears

to be that they agreed it would be confidential, and treated it that way. But when the

parties have “offered [no] reason for secrecy except that they have a confidentiality

agreement,” “[o]bviously that’s insufficient,” Goesel v. Boley, 738 F.3d 831, 835 (7th

Cir. 2013), and “their reliance on the documents’ confidentiality does not outweigh

the interests in favor of permitting public inspection.” Johnson v. Corr. Corp. of Am.,

2014 WL 3970115, at *3 (W.D. Ky. Aug. 13, 2014).

Rather, “[t]he confidentiality agreement between the parties does not bind the

court in any way,” and the court “must apply the rules and principles governing the

right of access to court documents as in any other civil case.” Brown & Williamson v.

FTC, 710 F.2d 1165, 1180 (6th Cir. 1983). Those principles required the parties to

make showings they have declined to make, for “only the most compelling reasons

can justify the total foreclosure of public and professional scrutiny” of documents that

form the basis of an adjudication. Id. at 1180. The Agreement should therefore be

docketed and made available for public access.

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Conclusion

This is an important and unusual case. This Court has been asked to punish a

prominent online speaker in contempt proceedings arising from a settlement

agreement the parties placed before it. And this Court has already used that

agreement to enjoin that speaker from speaking. Having “invoked the powers of the

federal courts,” the parties “cannot now claim exemption from the obligations of

openness and public access concomitant with litigating in this forum.” Rudd v. John

Deere, 834 F.3d 589, 596 (6th Cir. 2016). Prof. Volokh therefore respectfully requests

that the Agreement be made public.

s/ Patrick S. Kabat
Patrick Kabat (NY Bar No. 5280730)
Subodh Chandra (OH Bar No. 0069233)
THE CHANDRA LAW FIRM LLC
The Chandra Law Building
1265 W. 6th St., Suite 400
Cleveland, OH 44113-1326
216.578.1700 Phone
216.578.1800 Fax
Patrick.Kabat@ChandraLaw.com
Subodh.Chandra@ChandraLaw.com

Attorneys for Movant Eugene Volokh

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CERTIFICATE OF SERVICE

I certify that on February 1, 2018, I filed this Motion and Memorandum on the Court’s
electronic docket, where it will be served by the Court’s electronic filing system on all
parties of record.
/s/ Patrick S. Kabat
Attorney for Movant Eugene Volokh

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