Respondents claim that Commercial Union "repeatedly and
blatantly misrepresented the Panel's Phase I Order" and have
made other allegations regarding the need for sanctions.
(Petitioner's "claims for relief are based on a frivolous public
policy argument that has no basis in law," and its "attempt to
stay an incomplete arbitration . . . has been made solely to
delay" proceedings). Respondent's Motion for Sanctions, dated
March 8, 2002 at 9.
An award of sanctions requires both "clear evidence that the
challenged actions are entirely without color and are taken for
reasons of harassment or delay or for other improper purposes,
and a high degree of specificity in the factual findings [by the
court]." Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.
1986). Based upon this standard, the Court does not believe that
sanctions are warranted at this time. See Knipe v. Skinner,
19 F.3d 72, 78 (2d Cir. 1994) ("Rule 11 sanctions should be imposed
with caution"); Veliz v. Crown Lift Trucks, 1989 WL 61829, at
*10 (E.D.N.Y. June 1, 1989) ("Rule 11 [sanctions] must be
deployed with restraint"). See also Int'l Telepassport Corp. v.
USFI, Inc., 89 F.3d 82, 86 (2d Cir. 1996) (affirming denial of
sanctions where motion to vacate arbitration award was "barely
non-frivolous"); AT & T Corp. v. Public Serv. Enters. of PA.,
Inc., No. 98 Civ. 6133, 1999 WL 672543, at *7 (S.D.N.Y. Aug.
26, 1999) ("`It is far from clear . . . where to draw the line'
when determining [whether an arbitration award contravenes
public policy].") (quoting DiRussa v. Dean Witter Reynolds
Inc., 121 F.3d 818, 825 (2d Cir. 1997)).
D. Sealing the Record
Respondents argue, among other things: (i) that "the
arbitration is conducted pursuant to a confidentiality agreement
and the documents produced . . . are highly sensitive,"
Respondents' Reply at 3, (ii) disclosure of the Panel's findings
would result in "[t]he gaining of an unfair advantage by other
potential adversaries and the risk of misleading the public",
id., and (iii) there is a pending sealing order issued by the
In DiRussa, cited by Respondents, the U.S. Court of Appeals
for the Second Circuit approved "sealing the file" where "a
confidentiality agreement entered into by the parties during the
discovery phase of the arbitration required that the papers
. . . submitted to the district court be placed under seal." 121
F.3d at 826. The district court initially sealed the record by
"order[ing] the parties to attempt to agree as to which
documents properly fell within the protection of the agreement,"
id., but later ruled that "it was not feasible to attempt a
partial unsealing within the context of the parties'
confidentiality agreement." DiRussa v. Dean Witter Reynolds,
Inc., 936 F. Supp. 104 (S.D.N.Y. 1996). The district court
ultimately held that "the file would remain under seal with the
exception of the court's orders and opinions in the case."
DiRussa, 121 F.3d at 826.
Petitioner responds that (i) "[t]he Confidentiality Agreement
does not require the parties . . . to seek to seal court
proceedings," id. ¶ 4, and (ii) "[r]einsurance arbitrations —
in general — and this arbitration in particular — simply do not
include the type of sensitive or proprietary
information that would warrant the extraordinary step of sealing
an entire proceeding." Petitioner's Reply at 9.*fn8
Judicial documents are presumptively available to the public.
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995).
The presumption "is at its strongest when the document[s] in
question . . . ha[ve] been submitted as a basis for judicial
decision making." Greater Miami Baseball Club Ltd. P'ship v.
Selig, 955 F. Supp. 37, 39 (S.D.N.Y. 1997); U.S. ex rel.
Alcohol Found., Inc. v. Kalmanovitz Charitable Found., Inc.,
186 F. Supp.2d 458, 465 (S.D.N.Y. 2002) ("the presumption in
favor of public access is at its peak [when] the documents at
issue were submitted to and used by the [c]ourt in rendering
a[d]ecision"); see also Amodeo, 71 F.3d at 1049.*fn9 "Where
such documents are usually filed with the court and are
generally available, the weight of the presumption [of access]
is stronger than where filing with the court is unusual or is
generally under seal." Id.*fn10
Respondent has not demonstrated why the entire record here
should be sealed. At a minimum, the Court's orders and decisions
should be available for public review.*fn11 Respondents have
had "a fair opportunity . . . to respond to" Petitioner's
allegedly derogatory statements. Amodeo, 71 F.3d at 1051. And,
Respondents do not identify with particularity any "unfair
advantage" that would result from disclosure of particular
For the foregoing reasons, (i) Petitioner's motion to
permanently enjoin the arbitration is denied; (ii) Petitioner's
motion partially to vacate the Award is denied; (iii)
Respondents' cross-motion to confirm the Award is granted; (iv)
Respondents' motion to impose sanctions is denied; and (v)
Respondents' motion to maintain the record under seal is granted
ORDER ON MOTION TO MODIFY DECISION
Following the issuance of the Court's Decision and Order,
dated December 18, 2002
("Decision"), which determined, among other things, that "orders
and decisions should be available for public review,"
Respondents submitted a motion, on December 19, 2002, requesting
modification of the Decision "by excising text describing the
underlying private arbitration award." Respondents' Motion dated
December 19, 2002 at 1. On December 24, 2002, Petitioner opposed
Respondents' Motion, arguing, among other things, that
"Respondents have not satisfied their burden of demonstrating
that the Order should be amended" and that "excising the
arbitral finding . . . would remove the factual predicate of the
Petition, eviscerate the context of the Order and render it
misleading to the public." Petitioner's Opposition to
Respondents' Motion dated December 24, 2002 at 1-2.
Upon a review of the parties submissions and applicable legal
authorities, the Court perceives no basis to reconsider and/or
modify its Decision. The standard "is strict, and
reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court
overlooked — matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court." Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see
Federal Rule of Civil Procedure 59(e). None are presented here.
The Court is, if anything, more convinced, upon Respondents'
Motion, that the policy of public access to proceedings of the
Court, including its decisions and orders, is a wise one and
should be adhered to here. See DiRussa v. Dean Witter Reynolds
Inc., 121 F.3d 818, 825 (2d Cir. 1997) (rejecting sealing of
the court's decisions and orders). A strong presumption of
public access attaches based "on the need for federal courts
. . . to have a measure of accountability and for the public to
have confidence in the administration of justice." U.S. v.
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995).
Respondents' application for modification of the Court's
Decision and Order dated December 18, 2002 is denied.