In re IBM Arb. Agreement Litig.

22-1728-cv
In re IBM Arb. Agreement Litig.
United States Court of Appeals
for the Second Circuit
August Term 2022
Argued: May 22, 2023
Decided: August 4, 2023
No. 22-1728
IN RE : IBM A RBITRATION A GREEMENT L ITIGATION
G REGORY A BELAR , WILLIAM A BT, B RIAN B ROWN, B RIAN B URGOYNE ,
MARK C ARLTON, WILLIAM CHASTKA, PHILLIP CORBETT, D ENISE C OTE ,
MICHAEL D AVIS , MARIO D IF ELICE , JOSEPH D UFFIN, B RIAN F LANNERY ,
F RED G IANINY , O M G OECKERMANN, MARK G UERINOT, D EBORAH
K AMIENSKI, D OUGLAS L EE , C OLLEEN L EIGH , S TEPHEN MANDEL , MARK
MCH UGH , S ANDY PLOTZKER , ALEXANDER S ALDARRIAGA, R ICHARD
U LNICK, MARK V ORNHAGEN, JAMES W ARREN, AND D EAN W ILSON,
Plaintiffs-Appellants,
v.
I NTERNATIONAL B USINESS MACHINES C ORPORATION,
Defendant-Appellee.*
On Appeal from the United States District Court
for the Southern District of New York
* The Clerk of Court is respectfully directed to amend the caption
accordingly.

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Before: POOLER , WESLEY , and PARK, Circuit Judges.
Plaintiffs are twenty-six former employees of International
Business Machines Corporation (“IBM”) who signed separation
agreements requiring them to arbitrate any claims arising from their
termination by IBM. The agreements set a deadline for initiating
arbitration and included a confidentiality requirement. Plaintiffs
missed the deadline but nonetheless tried to arbitrate claims under
the Age Discrimination in Employment Act of 1967 (“ADEA”).
Their arbitrations were dismissed as untimely. They then sued IBM
in the U.S. District Court for the Southern District of New York,
seeking a declaration that the deadline is unenforceable because it
does not incorporate the “piggybacking rule,” a judge-made
exception to the ADEA’s administrative-exhaustion requirements.
Shortly after filing suit, Plaintiffs moved for summary judgment and
attached various documents obtained by Plaintiffs’ counsel in other
confidential arbitration proceedings. IBM moved to seal the
confidential documents. The district court (Furman, J.) granted
IBM’s motions to dismiss and to seal the documents.
On appeal, Plaintiffs argue that (1) the filing deadline in their
separation agreements is unenforceable, and (2) the district court
abused its discretion by granting IBM’s motion to seal. We disagree.
First, the piggybacking rule does not apply to arbitration and, in any
event, it is not a substantive right under the ADEA. Second, the
presumption of public access to judicial documents is outweighed
here by the Federal Arbitration Act’s strong policy in favor of
enforcing arbitral confidentiality provisions and the impropriety of
counsel’s attempt to evade the agreement by attaching confidential
documents to a premature motion for summary judgment.
AFFIRMED.
S HANNON L ISS -RIORDAN, Lichten & Liss-Riordan, P.C.,
Boston, MA (Thomas Fowler, on the brief), for Plaintiffs-
Appellants.

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TRACI L. LOVITT, Jones Day, New York, NY (Anthony J.
Dick, Jones Day, Washington, DC; Matthew W. Lampe,
Erika D. Cagney, Jones Day, New York, NY; J. Benjamin
Aguiñaga, Jones Day, Dallas, TX, on the brief), for
Defendant-Appellee.
PARK, Circuit Judge:
Plaintiffs are twenty-six former employees of International
Business Machines Corporation (“IBM”) who signed separation
agreements requiring them to arbitrate any claims arising from their
termination by IBM. The agreements set a deadline for initiating
arbitration and included a confidentiality requirement. Plaintiffs
missed the deadline but nonetheless tried to arbitrate claims under
the Age Discrimination in Employment Act of 1967 (“ADEA”).
Their arbitrations were dismissed as untimely. They then sued IBM
in the U.S. District Court for the Southern District of New York,
seeking a declaration that the deadline is unenforceable because it
does not incorporate the “piggybacking rule,” a judge-made
exception to the ADEA’s administrative-exhaustion requirements.
Shortly after filing suit, Plaintiffs moved for summary judgment and
attached various documents obtained by Plaintiffs’ counsel in other
confidential arbitration proceedings. IBM moved to seal the
confidential documents. The district court (Furman, J.) granted
IBM’s motions to dismiss and to seal the documents.
On appeal, Plaintiffs argue that (1) the filing deadline in their
separation agreements is unenforceable, and (2) the district court
abused its discretion by granting IBM’s motion to seal. We disagree.
First, the piggybacking rule does not apply to arbitration and, in any

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event, it is not a substantive right under the ADEA. Second, the
presumption of public access to judicial documents is outweighed
here by the Federal Arbitration Act’s (“FAA”) strong policy in favor
of enforcing arbitral confidentiality provisions and the impropriety of
counsel’s attempt to evade the agreement by attaching confidential
documents to a premature motion for summary judgment. We
affirm.
I. BACKGROUND
A. Facts1
Plaintiffs allege that IBM terminated thousands of older
workers in the early 2010s to be more competitive in emerging
technology sectors. Most of the terminated employees signed a
separation agreement (the “Agreement”) in exchange for severance
payments and other benefits. The Agreement included a class- and
collective-action waiver requiring claims arising from their
termination—including ADEA claims—to be resolved by “private,
confidential, final and binding arbitration according to the IBM
Arbitration Procedures.” App’x at App.102. The Agreement
required Plaintiffs to bring claims within a certain time (the
“Timeliness Provision”):
Time Limits and Procedure for Initiating Arbitration.
To initiate arbitration, you must submit a written
demand for arbitration to the IBM Arbitration
Coordinator . . . [I]f the claim is one which must first be
brought before a government agency, [you must submit]
1 We accept Plaintiffs’ factual allegations as true on a motion to
dismiss. Celestin v. Caribbean Air Mail, Inc., 30 F.4th 133, 136 n.1 (2d Cir.
2022).

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no later than the deadline for the filing of such a claim.
If the demand for arbitration is not timely submitted, the
claim shall be deemed waived. The filing of a charge or
complaint with a government agency . . . shall not
substitute for or extend the time for submitting a demand
for arbitration.
Id. at App.105. The ADEA typically requires plaintiffs to file a
complaint called a “charge” with the Equal Employment Opportunity
Commission (“EEOC”) within 300 days of the alleged discrimination.
See 29 U.S.C. § 626(d)(1)(B). Employees who signed the Agreement
had 300 days to submit written demands for arbitration.
The Agreement also included a confidentiality requirement
(the “Confidentiality Provision”):
Privacy and Confidentiality. . . . To protect the
confidentiality of proprietary information, trade secrets
or other sensitive information, the parties shall maintain
the confidential nature of the arbitration proceeding and
the award.
App’x at App.106.
Plaintiffs are twenty-six former IBM employees who were
terminated in 2017 and 2018. All signed the Agreement. After the
deadlines for arbitrating their claims had passed, twenty-four
Plaintiffs submitted written demands for arbitration, alleging that
they were terminated in violation of the ADEA. The arbitrators in
all of their cases dismissed the claims as untimely. The remaining
two Plaintiffs, Phillip Corbett and Brian Flannery, did not try to
arbitrate their claims.
Some former employees—almost all of whom are represented
by the same counsel as Plaintiffs—did not sign the Agreement and

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instead filed timely charges of discrimination with the EEOC. These
former employees brought a separate putative class action against
IBM in 2018 (the “Rusis action”). See Rusis v. Int’l Bus. Machs. Corp.,
529 F. Supp. 3d 178, 188 (S.D.N.Y. 2021).
Plaintiffs tried to opt in to the Rusis action in 2019, after their
arbitration claims were dismissed as untimely.2 See id. at 192. In
2020, the EEOC issued a report on other former IBM employees’
charges finding “reasonable cause to believe that [IBM] discriminated
against [other former IBM employees] on account of their age.”
App’x at App.121. In March 2021, the district court in the Rusis
action dismissed Plaintiffs from that case due to the “valid and
enforceable class and collective action waiver” in the Agreement.
529 F. Supp. 3d at 193.
B. Procedural History
After Plaintiffs were dismissed from the Rusis action, they filed
individual cases in the U.S. District Court for the Southern District of
New York, seeking a declaration that the Timeliness and
Confidentiality Provisions in the Agreement are unenforceable. The
district court (Furman, J.) consolidated the individual cases.
After filing the complaint but before IBM answered or moved
to dismiss, Plaintiffs filed a motion for summary judgment, attaching
documents that Plaintiffs’ counsel had obtained in other IBM
employees’ confidential arbitration proceedings. Plaintiffs filed
under seal but requested immediate unsealing of the confidential
documents for the admitted purpose of enabling Plaintiffs’ counsel to
2 Two Plaintiffs, Brian Flannery and Deborah Kamienski, did not try
to opt in to the Rusis action.

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use the documents in litigation against IBM. IBM opposed Plaintiffs’
motion for summary judgment and moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6). IBM argued that the claims of the
twenty-four Plaintiffs who arbitrated and lost should be dismissed as
untimely and that the Timeliness Provision is enforceable under the
FAA. IBM further argued that the motion for summary judgment
should be denied as moot. Plaintiffs opposed IBM’s motion, arguing
that the Timeliness Provision is unenforceable because it does not
include the piggybacking rule, which permits plaintiffs who fail to file
an EEOC charge to “piggyback” off a timely charge brought by
another employee alleging the same discrimination. Plaintiffs also
moved for leave to amend their complaints to add claims for
fraudulent inducement.
The district court granted IBM’s motion to dismiss. First, it
declined to exercise jurisdiction over the claims of the twenty-four
Plaintiffs who had already arbitrated because their claims were
unripe under the Declaratory Judgment Act (“DJA”). In re IBM Arb.
Agreement Litig., No. 21-CV-6296, 2022 WL 2752618, at *4-5 (S.D.N.Y.
July 14, 2022). The “arbitration proceedings definitively resolved”
their claims, and “the window to challenge those rulings, or the
enforceability of the provisions that governed them, has long since
closed.” Id. at *5. The district court also declined to exercise
jurisdiction over Plaintiffs Flannery’s and Corbett’s challenge to the
Confidentiality Provision because it was unripe. Id. at *6 (stating
that the Confidentiality Provision “will play a role in Flannery and
Corbett’s arbitration proceedings only if the arbitrator rules that they
have timely ADEA claims to arbitrate in the first place,” and “there is
no reason to believe an arbitrator would conclude Flannery and

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Corbett have timely ADEA claims”). This left only Flannery’s and
Corbett’s challenge to the Timeliness Provision.
Second, the district court concluded that the Timeliness
Provision is enforceable because the piggybacking rule is not “a
substantive, nonwaivable right under the ADEA.” Id. at *7.
“Plaintiffs’ challenge to the Timeliness Provision on the ground that
it prevents them from effectively vindicating their rights under the
ADEA is without merit” because “the timeline for filing an arbitration
demand established by the Timeliness Provision is the same 180- or
300-day deadline provided by the ADEA itself.” Id. at *9.
Finally, the district court denied Plaintiffs’ motion for leave to
amend to add a claim for fraudulent inducement as futile because
twenty-four Plaintiffs had waived their claims by arbitrating and
failing to raise a claim for fraudulent inducement. See id. at *10.
The district court denied Flannery’s and Corbett’s motion for leave to
amend because it would not satisfy the heightened pleading standard
under Federal Rule of Civil Procedure 9(b). Id. at *11.
IBM also moved to seal Plaintiffs’ motion for summary
judgment and the attached confidential documents. See In re IBM
Arb. Agreement Litig., No. 21-CV-6296, 2022 WL 3043220, at *1
(S.D.N.Y. Aug. 2, 2022). The district court granted IBM’s motion to
seal and denied Plaintiffs’ request to unseal the documents. Id. It
concluded that the materials were not “judicial documents” because
they “had no tendency—or, for that matter, ability—to influence this
Court’s ruling on IBM’s motion.” Id. at *2 (cleaned up). The
documents were “subject to only a weak presumption of public
access,” and any presumption of public access was outweighed by

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“the FAA’s strong policy in favor of enforcing arbitral confidentiality
provisions.” Id. at *2-3. Plaintiffs timely appealed.3
II. DISCUSSION
Plaintiffs argue that (1) the Timeliness Provision is
unenforceable because it does not incorporate the piggybacking rule,
and (2) the district court abused its discretion by granting IBM’s
motion to seal the confidential documents. We disagree. First, the
piggybacking rule does not apply to arbitration and, in any case, it is
not a substantive right under the ADEA. Second, the presumption
of public access to judicial documents is outweighed here by the
FAA’s strong policy in favor of enforcing arbitral confidentiality
provisions and the impropriety of counsel’s attempt to evade the
Agreement by attaching confidential documents to a premature
motion for summary judgment. Finally, the district court correctly
declined to exercise jurisdiction over the remaining claims and
correctly denied Plaintiffs’ motion for leave to amend.
A. Timeliness Provision
The Timeliness Provision is enforceable. Plaintiffs argue that
“the time-period for filing contained in the ADEA, to which the
piggybacking rule is integral” is “a substantive right that cannot be
waived or truncated in an arbitration agreement.” Appellants’ Br. at
36-37. This is incorrect. The piggybacking rule has no application
in the arbitration context. In any event, the piggybacking rule may
be waived because it is not a substantive right under the ADEA.
3 On appeal, Plaintiffs moved to file certain materials under seal
while simultaneously moving to unseal the same documents.

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1. Legal Standards
The ADEA makes it “unlawful for an employer” to
“discriminate against any individual . . . because of such individual’s
age.” 29 U.S.C. § 623. It provides that:
(1) No civil action may be commenced by an individual
under this section until 60 days after a charge alleging
unlawful discrimination has been filed with the Equal
Employment Opportunity Commission. Such a charge
shall be filed—
(A) within 180 days after the alleged unlawful
practice occurred; or
(B) in a case to which section 633(b) of this title
applies, within 300 days after the alleged unlawful
practice occurred . . . .
Id. § 626(d).
Under this provision, an ADEA plaintiff must exhaust
administrative remedies by first filing an EEOC charge within 300
days of the “alleged unlawful practice.”4 Id. The plaintiff must
then “file an EEOC charge at least 60 days prior to initiating an ADEA
suit in federal court.” Holowecki, 440 F.3d at 562 (emphasis omitted).
The piggybacking rule is an exception to the ADEA’s charge-
filing requirement. See Tolliver v. Xerox Corp., 918 F.2d 1052, 1056 (2d
Cir. 1990). It first came into use after the enactment of the Civil
Rights Act of 1964, when courts applied the rule to class actions under
4 The 300-day deadline applies to “deferral states,” which are states
with their own age discrimination laws and age discrimination remedial
agencies. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 562 (2d Cir.
2006). Most, if not all, Plaintiffs reside in deferral states.

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Title VII. See Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99 (5th
Cir. 1968). “According to the piggybacking rule, where one plaintiff
has filed a timely EEOC complaint, other non-filing plaintiffs may join
in the action if their individual claims arise out of similar
discriminatory treatment in the same time frame.” Holowecki, 440
F.3d at 564 (cleaned up). We have held that the piggybacking rule,
also known as the “single-filing rule,” applies to ADEA actions.
Tolliver, 918 F.2d at 1059-60. Importantly, the piggybacking rule is
not found in the ADEA or in Title VII. It is a judge-made exception
to the statutory-filing requirements. See Oatis, 398 F.2d at 498
(explaining it would be “wasteful” to require Title VII class members
to file individual charges); Tolliver, 918 F.2d at 1057 (reasoning it
would be “equally appropriate” to apply the piggybacking rule to
ADEA actions because the “ADEA administrative procedure is
modeled on the Title VII procedure”). We explained that the rule
could “afford the agency the opportunity to ‘seek to eliminate any
alleged unlawful practice by informal methods’” without requiring
“repetitive ADEA charges.” Tolliver, 918 F.2d at 1057 (quoting 29
U.S.C. § 626(d)).
The ADEA, as amended by the Older Workers Benefit
Protection Act (“OWBPA”), also provides that: “An individual may
not waive any right or claim under this chapter unless the waiver is
knowing and voluntary.” 29 U.S.C. § 626(f)(1). The Supreme
Court has “construed the phrase ‘right or claim’ in § 626(f)(1) and one
of its subparts to mean ‘substantive right,’ which includes ‘federal
antidiscrimination rights’ and ‘the statutory right to be free from
workplace age discrimination,’ as distinguished from procedural
rights, like ‘the right to seek relief from a court in the first instance.’”

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Estle v. Int’l Bus. Machs. Corp., 23 F.4th 210, 214 (2d Cir. 2022) (quoting
14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 259, 265-66 (2009)).
Finally, the FAA states that arbitration agreements “shall be
valid, irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any contract or as otherwise
provided.” 9 U.S.C. § 2. “This text reflects the overarching
principle that arbitration is a matter of contract.” Am. Express Co. v.
Italian Colors Rest., 570 U.S. 228, 233 (2013). As such, “courts must
rigorously enforce arbitration agreements according to their terms,
including . . . the rules under which that arbitration will be
conducted.” Id. (cleaned up). “Not only did Congress require
courts to respect and enforce agreements to arbitrate; it also
specifically directed them to respect and enforce the parties’ chosen
arbitration procedures.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621
(2018); see Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 683
(2010) (“[P]arties are generally free to structure their arbitration
agreements as they see fit.” (internal quotation marks omitted)).
“We review the grant of a Rule 12(b)(6) motion to dismiss de
novo. We accept the factual allegations as true and draw all
reasonable inferences in favor of the plaintiff.” Estle, 23 F.4th at 212-
13.
2. Application
Plaintiffs argue that the Timeliness Provision is unenforceable
because it “waive[d] a substantive right by abridging the time period
to file and because it was obtained without IBM providing OWBPA

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disclosures.” 5 Appellants’ Br. at 27. Plaintiffs’ argument is
meritless and foreclosed by precedent.
First, the piggybacking rule does not apply to arbitration. It is
an exception to the ADEA’s administrative-exhaustion requirements.
See Tolliver, 918 F.2d at 1057. And the ADEA’s administrative-
exhaustion process expressly applies to “civil action[s].” 29 U.S.C.
§ 626(d)(1). The judge-made piggybacking rule thus “has no clear
application in the arbitration context.” Smith v. Int'l Bus. Machs.
Corp., No. 22-11928, 2023 WL 3244583, at *6 (11th Cir. May 4, 2023).
All that the piggybacking rule does is functionally waive the
administrative-exhaustion requirement—it does not extend the 300-
day deadline to file an EEOC charge. See Holowecki, 440 F.3d at 564.
The Timeliness Provision clearly notes that the ADEA’s
administrative-exhaustion requirement does not apply to Plaintiffs’
arbitrations. App’x at App.105 (stating that the “filing of a charge or
complaint with a government agency . . . shall not substitute for or
extend the time for submitting a demand for arbitration”). And
under the FAA, “courts must rigorously enforce arbitration
agreements according to their terms, including . . . the rules under
which that arbitration will be conducted.” Am. Express Co., 570 U.S.
5 The district court correctly declined to exercise jurisdiction over
the claims brought by the twenty-four Plaintiffs who arbitrated and lost.
See In re IBM Arb. Agreement Litig., 2022 WL 2752618, at *5. We agree that
there is no “practical likelihood” that Plaintiffs will be able to reopen their
claims. See Admiral Ins. Co. v. Niagara Transformer Corp., 57 F.4th 85, 92 (2d
Cir. 2023) (emphasis omitted). Nonetheless, we have appellate
jurisdiction over the challenge to the Timeliness Provision brought by
Plaintiffs Flannery and Corbett.

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at 233 (cleaned up). Neither the EEOC’s charge-filing process nor
the piggybacking rule have any place in Plaintiffs’ arbitrations.
Second, in any event, the piggybacking rule is not a substantive
right under the ADEA and is thus waivable under the Agreement.
The Supreme Court has distinguished between substantive rights—
such as the right under the ADEA “to be free from workplace age
discrimination,” which may be waived only if such waiver is knowing
and voluntary—and procedural rights—such as “the right to seek
relief from a court in the first instance,” which are waivable. 14 Penn
Plaza, 556 U.S. at 265-66. 14 Penn Plaza held that the ability to file suit
in court (as opposed to arbitration) is procedural, not substantive.
See id. The Court explained that “the recognition that arbitration
procedures are more streamlined than federal litigation is not a basis
for finding the forum somehow inadequate.” Id. at 269; see also
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31 (1991)
(“Although [arbitration] procedures might not be as extensive as in
the federal courts, by agreeing to arbitrate, a party ‘trades the
procedures and opportunity for review of the courtroom for the
simplicity, informality, and expedition of arbitration.’” (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
628 (1985))). Following 14 Penn Plaza, we recently held that
“[c]ollective action waivers . . . address procedural, not substantive
rights,” and thus may be waived. Estle, 23 F.4th at 212.
14 Penn Plaza forecloses Plaintiffs’ argument that the
piggybacking rule is a non-waivable substantive right under the
ADEA. The rule is judge-made and is not found in the text of the
ADEA. See 29 U.S.C. § 626(d). Moreover, the piggybacking rule, at
its core, is not about timeliness. See Holowecki, 440 F.3d at 564 (“An

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individual who has previously filed an EEOC charge cannot
piggyback onto someone else’s EEOC charge.”); Levy v. U.S. Gen. Acct.
Off., 175 F.3d 254, 255 (2d Cir. 1999) (declining to apply rule to
plaintiffs who filed an untimely complaint in the district court). As
discussed above, it is an exception to the ADEA’s administrative-
exhaustion requirement and does not apply to these arbitrations. It
thus falls well outside the scope of the substantive right protected by
the ADEA and may be waived.6
Plaintiffs argue that the ADEA’s timing provisions “are part of
the substantive law of the cause of action created by the ADEA.”
Appellants’ Br. at 34 (quoting Thompson v. Fresh Products, LLC, 985
F.3d 509, 521 (6th Cir. 2021)). This argument is misplaced.
Plaintiffs cite Thompson, which did not involve an arbitration
agreement or the FAA. See 985 F.3d at 515. Neither did Logan v.
MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019), on which
Thompson relied. See 939 F.3d at 839 (holding that a “contractually
shortened limitation period, outside of an arbitration agreement, is
incompatible with the grant of substantive rights and the elaborate
pre-suit enforcement mechanisms of Title VII” (emphasis added)).
For these reasons, the Timeliness Provision in the Agreement is
enforceable.
6 Nor have Plaintiffs shown that the Timeliness Provision made
“access to the forum impracticable.” Am. Express Co., 570 U.S. at 236. It
gave Plaintiffs the same amount of time to file an arbitration demand as
they would have had to file an EEOC charge under the ADEA. Indeed,
other former employees timely filed and successfully arbitrated their
claims.

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B. Motion to Unseal
The district court properly granted IBM’s motion to seal.
Plaintiffs argue that “a confidentiality provision . . . is not a sufficient
countervailing interest to override the presumption of public access.”
Appellants’ Br. at 63. We disagree.
1. Legal Standards
“Judicial documents are subject at common law to a potent and
fundamental presumptive right of public access that predates even
the U.S. Constitution.” Mirlis v. Greer, 952 F.3d 51, 58 (2d Cir. 2020).
“The presumption of access is based on the need for federal courts,
although independent—indeed, particularly because they are
independent—to have a measure of accountability and for the public
to have confidence in the administration of justice.” United States v.
Amodeo (“Amodeo II”), 71 F.3d 1044, 1048 (2d Cir. 1995).
“[A]s a threshold question, the court determines whether the
record at issue is a judicial document—a document to which the
presumption of public access attaches.” Olson v. Major League
Baseball, 29 F.4th 59, 87 (2d Cir. 2022) (cleaned up). If so, the court
“must next determine the particular weight of that presumption of
access for the record at issue.” Id. “Finally, once the weight of the
presumption has been assessed, the court is required to balance
competing considerations against it.” Id. at 88 (internal quotation
marks omitted). “Examples of such countervailing values may
include . . . the protection of attorney-client privilege; the danger of
impairing law enforcement or judicial efficiency; and the privacy
interest of those who resist disclosure.” Brown v. Maxwell, 929 F.3d
41, 47 n.13 (2d Cir. 2019) (cleaned up).

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“When reviewing a district court’s order to seal or unseal a
document, we examine the court’s factual findings for clear error, its
legal determinations de novo, and its ultimate decision to seal or
unseal for abuse of discretion.” Olson, 29 F.4th at 87 (cleaned up).
2. Application
The district court correctly granted IBM’s motion to seal. The
district court reasoned that the summary judgment documents were
“subject to only a weak presumption of public access” because the
court “did not, and could not, consider these documents in resolving
IBM’s motion to dismiss.” In re IBM Arb. Agreement Litig., 2022 WL
3043220, at *2 (emphasis omitted). “And on the other side of the
scale,” the FAA’s mandate requiring enforcement of arbitration
agreements “according to their terms” “favor[s] maintaining these
documents under seal or in redacted form.” Id. (cleaned up).
Protecting this confidentiality interest is particularly important when
the stated objective of Plaintiffs’ motion to unseal is to circumvent the
Confidentiality Provision to assist plaintiffs in other proceedings—
including Plaintiffs’ counsel’s other clients. See, e.g., Reply Br. at 34
(“Plaintiffs have filed this lawsuit to be able to use certain evidence
that has been used in other arbitrations in support of their
arbitrations.” (alterations incorporated)).
First, motions for summary judgment are ordinarily judicial
documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123
(2d Cir. 2006); Brown, 929 F.3d at 47. “[F]or a court filing to be
classified as a ‘judicial document,’ it ‘must be relevant to the
performance of the judicial function and useful in the judicial
process.’” Olson, 29 F.4th at 87 (quoting United States v. Amodeo
(“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995)). The fact that the district

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court did not reach the merits of Plaintiffs’ motion does not change
the analysis. Cf. Bernstein v. Bernstein Litowitz Berger & Grossmann
LLP, 814 F.3d 132, 140 (2d Cir. 2016) (“The fact that a suit is ultimately
settled without a judgment on the merits does not impair the ‘judicial
record’ status of pleadings.”); Lugosch, 435 F.3d at 121-23 (finding it
was “error” for the district court to wait “until it had ruled on the
underlying summary judgment motion” to apply the sealing
analysis).
Even assuming the motion and attached materials in this case
were “judicial documents,” the presumption of public access is
weaker because the motion was denied as moot. “[T]he weight to be
given the presumption of access must be governed by the role of the
material at issue in the exercise of Article III judicial power and the
resultant value of such information to those monitoring the federal
courts.” Olson, 29 F.4th at 87-88 (quoting Amodeo II, 71 F.3d at 1049).
“The locus of the inquiry is, in essence, whether the document is
presented to the court to invoke its powers or affect its decisions.”
Bernstein, 814 F.3d at 142 (internal quotation marks omitted). Here,
the presumption of access is weaker because the district court
dismissed the complaint on IBM’s Rule 12(b)(6) motion and did not
even reach the merits of Plaintiffs’ summary judgment motion,
instead denying it as moot. The confidential documents thus had no
“role . . . in the exercise of Article III judicial power.” Id.
The weaker presumption of public access in this case is readily
outweighed by the FAA’s strong policy protecting the confidentiality
of arbitral proceedings and the impropriety of using a motion for
summary judgment to evade the Agreement’s Confidentiality
Provision. As discussed supra at 12-13, “courts must rigorously

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enforce arbitration agreements according to their terms.” Am.
Express Co., 570 U.S. at 233 (internal quotation marks omitted). And
the “Supreme Court [has] observed that, without vigilance, courts’
files might become a vehicle for improper purposes.” Brown, 929
F.3d at 47 (cleaned up). We have explained that “courts should
consider personal motives . . . at the third, balancing step of the
inquiry, in connection with any asserted privacy interests, based on
an anticipated injury as a result of disclosure.” Mirlis, 952 F.3d at 62
(internal quotation marks and emphasis omitted). Here, Plaintiffs
initially sued to invalidate the Confidentiality Provision, so denying
IBM’s sealing request “would be to grant Plaintiffs the relief they
sought in the first instance.” In re IBM Arb. Agreement Litig., 2022 WL
3043220, at *2. The district court correctly observed that allowing
unsealing under such circumstances would create a legal loophole
allowing parties to evade confidentiality agreements simply by
attaching documents to court filings. Id. at *3. Plaintiffs’ counsel
may not end-run the Confidentiality Provision by filing protected
materials and then invoking the presumption of access to judicial
documents. The district court correctly sealed the documents.
C. Remaining Claims
Finally, we affirm the district court’s disposition of Plaintiffs’
remaining claims. First, the district court did not abuse its discretion
in declining to exercise jurisdiction over Plaintiffs Flannery’s and
Corbett’s challenge to the Confidentiality Provision. Second, the
district court correctly denied Plaintiffs’ motion for leave to amend to
add a fraudulent inducement claim.
1. Ripeness
“The standard for ripeness in a declaratory judgment action is

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that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” Duane Reade, Inc. v. St. Paul
Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d Cir. 2005) (internal
quotation marks omitted). “We review a district court’s decision of
whether to exercise jurisdiction over a declaratory judgment action
deferentially, for abuse of discretion.” Id.
Flannery’s and Corbett’s claim seeking a declaratory judgment
that the Confidentiality Provision is unconscionable is unripe. As
discussed supra at 12-15, this challenge to the Timeliness Provision is
meritless. There is no “practical likelihood” that an arbitrator would
conclude otherwise. Admiral Ins. Co. v. Niagara Transformer Corp., 57
F.4th 85, 92 (2d Cir. 2023) (emphasis omitted); see also Kurtz v. Verizon
N.Y., Inc., 758 F.3d 506, 511 (2d Cir. 2014) (“A claim is not ripe if it
depends upon contingent future events that may or may not occur as
anticipated, or indeed may not occur at all.”). As a result, Plaintiffs’
challenge to the Confidentiality Provision is unripe.
2. Leave To Amend
“An amendment to a pleading is futile if the proposed claim
could not withstand a motion to dismiss pursuant to [Federal Rule of
Civil Procedure] 12(b)(6).” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d
243, 258 (2d Cir. 2002). “Where the claims are premised on
allegations of fraud, the allegations must satisfy the heightened
particularity requirements of Rule 9(b) of the Federal Rules of Civil
Procedure.” In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347,
358 (2d Cir. 2010) (internal quotation marks omitted). Rule 9(b)
provides that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed.

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R. Civ. P. 9(b). “[I]n order to comply with Rule 9(b), the complaint
must: (1) specify the statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state where and when the
statements were made, and (4) explain why the statements were
fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir.
2006) (cleaned up). We “review de novo a district court’s denial of a
request for leave to amend based on futility.” Glover v. Bausch &
Lomb Inc., 6 F.4th 229, 236 (2d Cir. 2021).
Plaintiffs’ proposed amended complaint fails to meet Rule
9(b)’s heightened pleading standard. It alleges that “IBM provided
employees with template letters indicating that the company was
required to lay them off.” App’x at App.563. It references “low-
level managers” but does not identify the speakers. See id. at
App.564. It also fails to identify when or where “IBM’s managers
and human resource professionals presented employees with
inaccurate and/or misleading information.” Id. at App.565. These
deficient allegations cannot satisfy Rule 9(b), and the district court
correctly denied leave to amend.
III. CONCLUSION
We have considered all of Plaintiffs’ remaining arguments and
have found them to be without merit. For the reasons set forth
above, the judgment of the district court is affirmed. 7 Plaintiffs’
motion to unseal is denied as moot.
7 The remaining appeals raising substantially similar issues are
resolved in summary orders issued simultaneously with this opinion. See
Chandler v. Int’l Bus. Machs. Corp., No. 22-1733; Lodi v. Int’l Bus. Machs. Corp.,
No. 22-1737; Tavenner v. Int’l Bus. Machs. Corp., No. 22-2318.

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