An arbitration agreement may specify confidentiality, but does that term necessarily control and require sealing of subsequent proceedings in court? “No,” usually, is the answer according to a recent federal district court ruling in CAA Sports LLC v. Dogra, No. 4:18-cv-01887-SNLJ, 2018 U.S. Dist. LEXIS 214223 (E.D. Mo. Dec. 20, 2018).  The key portion of the ruling is quoted below.

“But, in the context of arbitration, courts routinely reject arguments that arbitration awards and supporting documents should be sealed merely to honor the parties’ underlying confidentiality agreement related to their arbitration. See, e.g., Grynberg v. BP P.L.C., 205 F.Supp.3d 1, 3-4 (D.D.C. 2016); Redeemer Committee of Highland Credit Strategies Funds v. Highland Capital Management, L.P., 182 F.Supp.3d 128, 132-134 (S.D.N.Y. 2016); Amerisure Mut. Ins. Co. v. Everest Reinsurance Co., 2014 U.S. Dist. LEXIS 153013, 2014 WL 5481107 *2 (E.D. Mich. Oct. 29, 2014); Century Indem. Co. v. AXA Belgium, 2012 U.S. Dist. LEXIS 136472, 2012 WL 4354816 at *13-14 (S.D.N.Y. Sept. 24, 2012); Zimmer, Inc. v. Scott, 2010 U.S. Dist. LEXIS 77409, 2010 WL 3004237 at *2-3 (N.D. Ill. Jul. 28, 2010); Zurich Am. Ins. Co. v. Rite Aid Corp., 345 F.Supp.2d 497, 504 (E.D. Pa. 2004). Indeed, as aptly stated by Judge Easterbrook of the Seventh Circuit “[p]eople who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).

With these principles in mind, the Court finds little reason to seal the documents in this case. CAA Sports’ only argument is that the parties are contractually bound to confidentiality. Be that as it may, and even if the confidentiality provision, by its terms, applied both to court proceedings and the [*5]  underlying arbitration, it does not bind this Court—being an agreement solely between the parties. More importantly, though, CAA Sports does nothing to explain why its interest in the secrecy of the underlying arbitration with Dogra should outweigh the public’s competing interest in free access to the judicial functioning of this Court. There is, for example, no suggestion that the arbitration award and supporting materials contain personal identifying information, implicate innocent third parties, or contain routinely protected information such as trade secrets or proprietary data. In fact, CAA Sports cites no law favoring its position—it cites no law at all.”

Hat tip to the St. Louis Record for publishing a December 25, 2018 article regarding the ruling. As some will recall, Legal Newsline previously moved for and obtained orders requiring unsealing of records in the Garlock trial. The various “Record” publications and Legal Newsline are inter-related. See this about page.  The same page also explains:  “Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.”

Courtesy of Torts Today and Jack Balkin, a link to and story about an upcoming multi-disciplinary conference on the public health issues arising as SCOTUS makes new law around the First Amendment. Those rulings are creating even more room for difficult and important intersections between science and law.

The conference home page explains the conference as follows:

A Conference Hosted by Yale Law School, Yale Medical School, and the Yale School of Public Health

Sponsored by the Information Society Project (ISP), the Yale Global Health Justice Partnership (GHJP), and the Yale Health Law and Policy Society (YHeLPS), with generous support from the Samuel and Liselotte Herman Fund for the Social and Behavioral Sciences at The Yale School of Public Health, and the Oscar M. Reubhausen Fund.

Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine. This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment.

The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion. First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures. For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.

In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging. For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens? In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit. Many recent examples suggest reason for concern about the results.

Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues.

This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy.”