Rollag v. Cowen Inc.

Background

Kevin Rollag filed this action against Cowen Inc., Cowen and Company, LLC, Gavin O’Reilly, and Scott Lemone. He alleged discrimination and retaliation under the Family and Medical Leave Act, the New York State Human Rights Law, and the New York City Human Rights Law. He also stated that he had filed a complaint with the Occupational Safety and Health Administration alleging retaliation under Section 806 of the Sarbanes-Oxley Act and intended to amend this case to add that claim after the administrative process.

The complaint included allegations about defendants’ solicitation of investments from an entity connected to Vitaly Malkin. News outlets reported on the lawsuit and the related administrative complaint shortly after the case was filed. Rollag’s counsel also issued a press release discussing both matters and linking to the complaints.

Defendants later filed a letter motion asking the court to seal the complaint or, alternatively, to require Rollag to replace the names of Cowen’s clients, employees, and potential investors with pseudonyms. They argued that Rollag’s employment agreements contained confidentiality and non-disparagement provisions and that the complaint included false, inflammatory, and irrelevant allegations. The opinion also notes that defendants filed a separate motion to compel arbitration and stay the action; this opinion addresses the sealing request.

Legal Standard

The court explained that judicial documents are generally subject to a strong common-law right of public access. The public and press also have a qualified First Amendment right to access certain judicial documents. A party seeking to seal material must show a substantial probability of harm to a compelling interest. Courts must review sealing requests carefully, and generalized concerns about unfavorable publicity are not enough.

The court also relied on authority holding that a party’s failure to promptly seek sealing can justify denying the request. Once information has been publicly reported, sealing may be futile because the information is already in the public domain.

Court’s Analysis and Ruling

The court held that defendants had not overcome the presumption of public access. Defendants waited until July 31, 2020—three and a half weeks after Rollag filed the complaint—to seek sealing. The court noted that defendants had allegedly received advance notice of the factual allegations and legal claims and provided no justification for the delay. In the court’s view, the delay undermined defendants’ claim that sealing was necessary to prevent harm.

The court further concluded that news coverage had already made the allegations public. Because the information was already in the public domain, the court concluded that sealing would be futile. The court therefore declined to grant the request to seal the complaint or require the requested pseudonyms. It also stated that defendants remained free to bring claims for breach of confidentiality or non-disparagement agreements, or for defamation, in the appropriate forum.

The court ordered the parties to file unredacted versions of letters or exhibits previously filed in redacted form by August 31, 2020. It directed the Clerk of Court to terminate the motion at Docket 18. The opinion does not state a disposition of the separate motion to compel arbitration and stay the action.