Botterio

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DENISE BOTTERIO,

on behalf of herself and derivatively on behalf of

Nominal Defendant Lambro Employee Stock

Ownership Plan

Plaintiff,

MEMORANDUM

v. AND ORDER

24-CV-4401-SJB-ST

DAVID TESSEL,

Defendant,

and

LAMBRO EMPLOYEE STOCK OWNERSHIP

PLAN,

Nominal Defendant.

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BULSARA, United States District Judge:

Plaintiff Denise Botterio seeks redress for alleged misconduct by Defendant

David Tessel in his management of her employee stock ownership plan. That plan, the

parties agree, is governed by the Employee Retirement Income Security Act

(“ERISA”)—but Botterio has alleged only state common law claims. For the reasons

explained below, these state claims are completely preempted by ERISA, and are

therefore dismissed, and Botterio is denied leave to amend.

BACKGROUND AND PROCEDURAL HISTORY

Botterio filed suit on behalf of herself and derivatively on behalf of Nominal

Defendant Lambro Industries, Inc. (“Lambro”) against Tessel in state court in Suffolk

County on June 2, 2024. (Defs.’ Notice of Removal dated June 21, 2024, Dkt. No. 1 ¶ 1).

Tessel then removed the case to federal court, on the theory that the case “appear[ed] to

set forth a cause of action” under ERISA, a federal law. (Id. ¶ 3). On July 22, 2024,

Botterio filed her Complaint.1 (Compl., Dkt. No. 9).

Botterio requested a premotion conference, seeking to remand the case for lack of

subject matter jurisdiction, (Pl.’s Mot. for Premotion Conference dated July 22, 2024,

Dkt. No. 10 at 1), and Tessel sought a premotion conference in anticipation of a motion

to dismiss, (Defs.’ Mot. for Premotion Conference dated July 29, 2024, Dkt. No. 11 at 1).

The Court held a conference on October 22, 2024, after which Botterio was permitted to

file an amended complaint. (Min. Entry dated Oct. 22, 2024; Scheduling Order dated

Nov. 22, 2024). Botterio filed her Amended Complaint on December 20, 2024,

substituting the Lambro Employee Stock Ownership Plan (“ESOP”) for Lambro as the

Nominal Defendant. (Am. Compl., Dkt. No. 15 at 1). When Tessel again sought

dismissal, this Court determined that another premotion conference would be

unnecessary and directed full briefing on the motion to dismiss.2 (Order dated Jan. 21,

2025). Pursuant to an agreement between the parties, (Letter with Proposed Briefing

Schedule dated Jan. 29, 2025, Dkt. No. 18 at 1), Botterio filed yet another amended

pleading on March 3, 2025, which is titled the Second Amended Complaint (“SAC”),

(Second Am. Compl. (“SAC”), Dkt. No. 20).

1 Botterio initiated the case with a summons in state court, but Tessel removed it

before any complaint was filed. (See Summons dated June 2, 2024, attached to Defs.’

Notice of Removal as Ex. A, Dkt. No. 1-1 at 2). Thus, though labeled on the docket as an

“Amended Complaint,” it is the first pleading in this case.

2 The case was reassigned to the undersigned on January 13, 2025 from the

Honorable Ann M. Donnelly.

The SAC seeks redress for alleged breaches of fiduciary duties and self-dealing

by Tessel that preceded the liquidation of the ESOP at an artificially depressed value.

(Id. ¶¶ 1, 30–31). Botterio brings claims on behalf of herself “and derivatively in the

right and for the benefit of the ESOP to redress injuries suffered by [her] and the ESOP.”

(Id. ¶ 40). Botterio worked for Lambro for approximately 30 years and owned over 300

shares of the company. (Id. ¶¶ 9, 23).

During Botterio’s employment at Lambro, CEO Edwin Berger passed away, and

the executor of his estate transferred Berger’s shares of Lambro to the Chai Foundation.

(Id. ¶¶ 12–15). The executor was subsequently convicted criminally of tax evasion

related to his administration of Berger’s estate, (id. ¶ 14); Botterio simultaneously notes

the validity of the transfer was litigated in state court and deemed permissible. (SAC

¶ 17). A “neutral CEO” (himself a member of the ESOP with interests “aligned to

maximize the share price of Lambro”) was then appointed, during which time Lambro

employees tried to purchase the Chai Foundation’s shares, but their offers were

rejected. (Id. ¶¶ 18–19).

In December 2020, Tessel became CEO, allegedly in the interest of the Chai

Foundation, and expressed an interest in purchasing Lambro. (Id. ¶¶ 20–21). Shortly

thereafter, the ESOP’s trustee was removed and Tessel also filled that position. (Id.

¶ 25). Botterio alleges Tessel received a letter of intent to purchase Lambro—at a much

higher price than shareholders ultimately received—but Tessel did not consider it

because of his own financial self-interest. (Id. ¶¶ 22, 39). Tessel hired an outside firm to

conduct an independent valuation, which priced Lambro’s shares significantly lower

than they had been valued several years before. (Id. ¶¶ 24, 26–28). Ultimately, the

ESOP’s shares were liquidated at a value Botterio claims was artificially depressed, and

the shares were sold to (or redeemed by) the Chai Foundation at the depressed price.

(SAC ¶¶ 27–31).

Along with these facts, the SAC includes a number of other accusations that

imply self-dealing, including that “Tessel’s allegiance and interests being completely

aligned with the Chai Foundation, and Tessel’s indication of his own interest in buying

Lambro, created a conflict of interest,” (id. ¶ 32), Tessel was “struggling financially,” (id.

¶ 33), and Tessel still plans to buy Lambro from the Chai Foundation as compensation

for his service as CEO, (id. ¶ 35).

Botterio claims this series of actions and the conflicts of interest, culminating in a

below-market valuation of the ESOP shares when they were liquidated, amounts to a

breach of fiduciary duty: that Tessel favored the majority shareholder’s interests over

those of the ESOP. (Id. ¶¶ 37–38). The SAC contains three causes of action for an

accounting, (id. ¶¶ 47–52), breach of fiduciary duty, (SAC ¶¶ 53–58), and abuse of

control, (id. ¶¶ 59–62).

LEGAL STANDARD

“The purpose of a motion to dismiss for failure to state a claim under Rule

12(b)(6) is to test the legal sufficiency of . . . claims for relief.” Amadei v. Nielsen, 348 F.

Supp. 3d 145, 155 (E.D.N.Y. 2018) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).

In deciding such a motion, the Court must “construe the complaint liberally, accepting

all factual allegations in the complaint as true, and drawing all reasonable inferences in

the plaintiff’s favor.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (quotations

and alteration omitted); Amadei, 348 F. Supp. 3d at 155 (“[W]hen reviewing a complaint

on a motion to dismiss for failure to state a claim, the court must accept as true all

allegations of fact in the complaint and draw all reasonable inferences in favor of [the

non-moving party].”). “[W]hen considering a preemption argument in the context of a

motion to dismiss, the factual allegations relevant to preemption must be viewed in the

light most favorable to the plaintiff. A district court may find a claim preempted only if

the facts alleged in the complaint do not plausibly give rise to a claim that is not

preempted.” Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015).

Once the facts are construed in the light most favorable to the non-moving party,

to avoid dismissal, there must be sufficient facts that allege a plausible claim. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss [pursuant to Rule

12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” (quotations omitted)). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. A complaint must contain more than “naked assertion[s] devoid of further

factual enhancement.” Id. (quotations omitted). In other words, a plausible claim

contains “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.; Fed. R. Civ. P. 8(a)(2). “Factual

allegations must be enough to raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The determination

of whether a party has alleged a plausible claim is “a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

U.S. at 679; see also Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 113 (2d Cir. 2023).

DISCUSSION

I. The Absence of an ERISA Claim

Courts may not dismiss a complaint merely because the plaintiffs have

“proceeded under the wrong theory so long as [they have] alleged facts sufficient to

support a meritorious legal claim.” Oneida Indian Nation of New York v. Cnty. of Oneida,

617 F.3d 114, 139 (2d Cir. 2010) (quotations omitted). But “the liberal construction

accorded a pleading under Rule 8(e) . . . does not require the district court to fabricate a

claim that a plaintiff has not spelled out in the complaint, and it does not permit the

pleader to weave a net of refinements and technicalities in which to catch an unwary

opposing litigant.” 5 Charles Alan Wright & Arthur R. Miller et al., Fed. Prac. & Proc.

Civ. § 1286 (4th ed. 2025). It is also well-established that litigants cannot amend a

complaint through their briefs. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d

Cir. 1998). The SAC contains no ERISA claim, which subjects it to preemption and

dismissal.

In an attempt to avoid this outcome, Botterio argues that one of her three claims

is in fact being brought pursuant to ERISA. (Pl.’s Mem. in Opp’n to Def.’s Mot. to

Dismiss dated Apr. 28, 2025 (“Pl.’s Opp’n”), Dkt. No. 25 at 4). Her position is that if a

complaint intentionally pleads common law claims, so long as the factual allegations

are sufficient, the Court can and should interpret the claims as ERISA claims. (Id. at 5).

And in Botterio’s view, there is no prejudice: Tessel was “on notice that the claims were

being prosecuted under ERISA,” (id. at 6), because Botterio had, earlier in this litigation,

1) conceded the Court’s subject matter jurisdiction and withdrawn her remand request,

and 2) included a paragraph in a brief opposing dismissal of the First Amended

Complaint arguing that Botterio had standing to bring her claims under ERISA, (id. at

4).

This is unpersuasive. The SAC never so much as hints at an intent to bring an

ERISA claim or gives notice to Tessel that he should understand the claims, which

plainly read as common law causes of action, as being brought pursuant to ERISA. The

sole reference to ERISA in the SAC is a single sentence explaining that Tessel’s asserted

basis for removal was federal question jurisdiction “because this action, according to

[Defendants] Tessel and Lambro, set forth causes of action arising under [ERISA].” (SAC

¶ 7). This allegation implies Botterio’s disagreement as to whether her claims arise

under ERISA more than any clear intent to litigate under ERISA.

In fact, Botterio’s post-hearing conduct demonstrates that she never had any

intention to bring her claims under ERISA. At the last premotion conference, Botterio

confirmed that the plan is governed by ERISA. (Tr. dated Oct. 22, 2024 (“PMC Tr.”),

Dkt. No. 21 at 4:8–10). As a consequence, Judge Donnelly warned her that she did not

have standing to bring a breach of fiduciary duty claim as an individual action. (Id. at

4:11–5:15, 9:21–10:8). Botterio then filed a letter indicating that she intended to amend

“the substantive allegations,” as well as the named parties. (Letter dated Nov. 22, 2024,

Dkt. No. 14). But the SAC does not reflect such changes. The original Complaint stated

that “no [ERISA] cause of action is being pled” and purported to bring suit “based

entirely on Tessel’s liability for his breaches of duty and related conduct.” (Compl. ¶ 7).

Though the SAC omits those statements, (SAC ¶ 7), it does nothing to represent that

Botterio is now bringing an ERISA claim. In fact, the only substantive changes the

Court can discern between the SAC and the Complaint are additional details about

Tessel’s personal financial circumstances, and an assertion that he intends to buy

Lambro from the Chai Foundation. (Id. ¶¶ 33–36).

Ultimately, there are limits on the ability to construe a complaint as alleging

causes of action not actually pled. Here, Botterio filed three separate federal court

complaints after being told that Tessel viewed her claims as preempted by ERISA. And

at each turn, she refused to allege an ERISA claim, and as noted above, resisted—and

did not accede to—any attempt to reframe her claim as a federal one.

Claims pled under state law should not be recharacterized as ERISA claims when

plaintiffs “had the opportunity to amend their complaints to bring expressly a claim

under ERISA § 502(a),” but instead “chose[] not to pursue any ERISA claim.” Aetna

Health Inc. v. Davila, 542 U.S. 200, 221 n.7 (2004). Courts in this Circuit frequently

dismiss state law claims when they are completely preempted, rather than converting

them into a viable ERISA claim. E.g., Romney v. Lin, 94 F.3d 74, 81 (2d Cir. 1996)

(“Romney brought his claim under [state law] in order to collect delinquent

contributions to ERISA plans . . . . However, ERISA § 502(a) already provides a means

for collecting delinquent ERISA contributions from employers.”); Enigma Mgmt. Corp. v.

Multiplan, Inc., 994 F. Supp. 2d 290, 305 (E.D.N.Y. 2014) (“Having found that [the state

law claims] are preempted by ERISA, I decline to recharacterize these claims as ERISA

claims[.]”).

Accordingly, the Court does not construe the SAC as alleging an ERISA claim,

despite Botterio’s arguments to the contrary. The Court, therefore, considers whether

the state law claims are preempted.

II. ERISA Preemption

There are two branches of preemption doctrine that concern ERISA, one of which

bears on this Court’s subject matter jurisdiction.3 That is the “complete preemption”

branch, which “substitutes a federal remedy for [a claim under state] law, thereby

creating an exclusive federal cause of action.” Briarpatch Ltd., L.P. v. Phoenix Pictures,

Inc., 373 F.3d 296, 305 (2d Cir. 2004).

ERISA’s civil enforcement mechanism, set forth in § 502, provides that “[a] civil

action may be brought . . . by a participant, beneficiary or fiduciary for appropriate

relief under section 1109 of this title.”4 29 U.S.C. § 1132(a)(2). An action brought under

this provision confers federal subject matter jurisdiction. The provision also

3 The other is the “express preemption” branch, which is “one of the ‘three

familiar forms’ of ordinary defensive preemption (along with conflict and field

preemption).’” Wurtz v. Rawlings Co., LLC, 761 F.3d 232, 238 (2d Cir. 2014) (quoting

Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 273 (2d Cir. 2005)). ERISA’s provision

expressly “supersed[ing] any and all State laws insofar as they may now or hereafter

relate to any employee benefit plan” is one such example. 29 U.S.C. § 1144(a); see Wurtz,

761 F.3d at 240. “As an ordinary defensive preemption claim, express preemption

cannot support federal jurisdiction because it would not appear on the face of a well-

pleaded complaint.” Wurtz, 761 F.3d at 238 (citing See Metro. Life Ins. Co. v. Taylor, 481

U.S. 58, 63 (1987); Sullivan, 424 F.3d at 272).

4 The referenced section, 29 U.S.C. § 1109 (or ERISA § 409), establishes liability for

breach of fiduciary duties imposed under ERISA.

“completely pre-empt[s]” state causes of action within its scope. Davila, 542 U.S. at 214.

In so doing, it makes those state law claims removable to federal court. Id. Section 502,

in other words, serves as an “exception to the well-pleaded complaint rule.” Arditi v.

Lighthouse Int’l, 676 F.3d 294, 298 (2d Cir. 2012), as amended (Mar. 9, 2012).

“[O]nce a district court determines that a state law claim has been completely

preempted . . . the court must then dismiss the claim for failing to state a cause of

action.” Gordon v. McGinley, 502 F. App’x 89, 90 (2d Cir. 2012) (quoting Briarpatch, 373

F.3d at 309). “Under the Supreme Court’s test in Davila, ERISA preempts a cause of

action where: (1) ‘an individual, at some point in time, could have brought his or her

claim under ERISA § 502(a)[];’ and (2) ‘no other independent legal duty . . . is implicated

by a defendant’s actions.’”5 Arditi, 676 F.3d at 299 (quoting Davila, 542 U.S. at 210). The

first prong of the Davila test itself has a two-part analysis: courts first consider “whether

the plaintiff is the type of party that can bring a claim pursuant to § 502(a)[],” and then

ask “whether the actual claim that the plaintiff asserts can be construed as a colorable

claim for benefits pursuant to § 502(a)[].” Montefiore Med. Ctr. v. Teamsters Loc. 272, 642

F.3d 321, 328 (2d Cir. 2011). As to the second “independent duty” prong, “a duty is

5 Davila concerned ERISA § 502(a)(1)(B), the provision covering those seeking to

recover benefits due to them under the terms of an ERISA plan, or otherwise enforce or

clarify rights and benefits under such a plan. See 542 U.S. at 210. Botterio purports to

bring a claim under ERISA § 502(a)(2), which provides relief for breaches of fiduciary

duties. (Pl.’s Opp’n at 1). The Second Circuit has held that Davila applies to such

claims. See Trs. of N.Y. State Nurses Ass’n Pension Plan v. White Oak Glob. Advisors, LLC,

102 F.4th 572, 606 n.18 (2d Cir. 2024) (“Although Davila announced a complete

preemption test under ERISA § 502(a)(1)(B), the Court’s reasoning makes clear that a

claim that falls within any of the ‘civil enforcement provisions of § 502(a)’ is completely

preempted by ERISA’s causes of action.” (quoting Davila, 542 U.S. at 209)).

sufficiently independent of ERISA if it creates obligations that did not exist under an

ERISA-regulated plan and the requested remedy would not “tend to control or

supersede central ERISA functions . . . [such as] the determination of eligibility for

benefits, amounts of benefits, or means of securing unpaid benefits.” Levy v. Young

Adult Inst., Inc., No. 13-CV-2861, 2014 WL 12917436, at *5 (S.D.N.Y. Mar. 31, 2014)

(quoting Stevenson v. Bank of New York Co., Inc., 609 F.3d 56, 59 (2d Cir. 2010)).

Botterio, in arguing that her breach of fiduciary duty claim was intended to be

brought under ERISA, essentially concedes that the claim could be brought under

ERISA and, therefore, would be preempted if brought as a state law claim. (Pl.’s Opp’n

at 4–6). Nevertheless, the Court steps through the Davila analysis.

The first prong is satisfied because Botterio could have brought this claim under

ERISA, which empowers a plan participant to sue, on behalf of the plan, for a breach of

fiduciary duty. See 29 U.S.C. § 1132(a)(2). To be sure, an individual seeking to bring a

claim under § 502(a)(2) faces additional procedural hurdles: she must do so in a

representative capacity—and whether Botterio properly did so here is disputed—and

she can only recover benefits for the plan as a whole. See Coan v. Kaufman, 457 F.3d 250,

257 (2d Cir. 2006) (“Under sections 502(a)(2) and 409(a), plan participants may

unquestionably bring actions against plan fiduciaries for breaches of fiduciary duty.

But . . . such claims may not be made for individual relief, but instead are brought in a

representative capacity on behalf of the plan.” (quotations omitted)). This is, however,

exactly the claim Botterio purports to bring, but under state common law. (See SAC

¶ 54 (alleging Tessel breached his fiduciary duty “owed to the ESOP and all of its

participants”); id. at 13 (seeking an accounting and damages on behalf of all plan

participants)).

Thus, Davila’s first step is satisfied, because Botterio is generally the type of party

that could bring a claim under ERISA § 502(a)(2), as an ESOP participant. See Montefiore

Med. Ctr., 642 F.3d at 329–30; 29 U.S.C. § 1002(7) (defining “participant” as “any

employee or former employee of an employer, or any member or former member of an

employee organization, who is or may become eligible to receive a benefit of any type

from an employee benefit plan”); Trs. of N.Y. State Nurses Ass’n Pension Plan v. White Oak

Glob. Advisors, LLC, 102 F.4th 572, 606 (2d Cir. 2024) (finding Davila’s first prong

satisfied where claim was brought by trustees authorized to sue under ERISA

§ 502(a)(3)); (SAC ¶¶ 9, 23, 30). The second step is also satisfied, because ERISA

provides a remedy for the alleged breach of fiduciary duty by Tessel. Montefiore Med.

Ctr., 642 F.3d at 331; see also Cedeno v. Sasson, 100 F.4th 386, 396–97 (2d Cir. 2024)

(explaining that ERISA provides a mechanism for plan participants to prosecute claims

for breach of fiduciary duties); (Pl.’s Opp’n at 5 (“[I]t is beyond cavil that ERISA permits

plan participants to sue for a breach of fiduciary duty.”)). Thus, Botterio’s claim of

breach of fiduciary duty on behalf of the plan is one that could have been brought

under ERISA.

As for Davila’s second prong, the breach of fiduciary duties owed to ESOP

participants is not “completely independent” from the “ERISA-related basis for legal

action,” Montefiore Med. Ctr., 642 F.3d at 332, since ERISA creates the very fiduciary

duties that Botterio alleges were breached. In other words, Botterio is seeking to

vindicate a duty protected by ERISA, not one independent of the statute. See 29 U.S.C.

§ 1104 (defining the duties of an ERISA fiduciary that could give rise to a violation

under 29 U.S.C. § 1109(a)); Davila, 542 U.S. at 213–14.

Since both prongs of the Davila test are met, this claim is completely preempted

by ERISA and dismissed for failure to state a claim. See Gordon, 502 F. App’x at 90; e.g.,

Harrison v. Metro. Life Ins. Co., 417 F. Supp. 2d 424, 432 (S.D.N.Y. 2006) (finding

preemption and dismissing claims because “ERISA provides a civil enforcement

remedy for the conduct upon which Harrison bases her breach of contract and breach of

fiduciary duty claims”).

Botterio’s other counts are subject to the same Davila analysis and also require

dismissal. The accounting claim is simply an attempt to get Tessel to answer for the

conduct that Botterio asserts is a breach of fiduciary duty. (SAC ¶ 49 (demanding an

accounting because “Tessel breached his fiduciary duties owed to the ESOP”)).

Without any other basis for seeking an accounting, this claim is also preempted. E.g.,

Trundle & Co. Pension Plan v. Emanuel, No. 18-CV-7290, 2019 WL 4735380, at *6 (S.D.N.Y.

Sep. 27, 2019) (“The right to an accounting is premised upon the existence of a

confidential or fiduciary relationship and a breach of the duty imposed by that

relationship respecting property in which the party seeking the accounting has an

interest. . . . Therefore, the Court also finds that this cause of action is preempted by

ERISA.” (quotation omitted)).

An “abuse of control claim” also arises out of a breach of fiduciary duty claim.

E.g., Canty v. Day, 13 F. Supp. 3d 333, 350 (S.D.N.Y. 2014) (analyzing abuse of control

claim as arising out of breach of fiduciary duty claim), aff’d, 599 F. App’x 20 (2d Cir.

2015). And the same is true here, where the abuse of control claim is asserted as a

“result of Tessel’s failure to perform his fiduciary obligations.” (SAC ¶ 61).

Accordingly, these claims are completely preempted and dismissed for the same

reasons as the breach of fiduciary duty claim.

III. Motion to Seal

Tessel requests to seal the unredacted filing of his motion to dismiss, without

objection from Botterio. (Def.’s Mem. in Supp. of Mot. to Seal dated Mar. 31, 2025

(“Def.’s Mot. to Seal”), Dkt. No. 23-1 at 4). Specifically, Tessel asks to seal 1) the

valuation report conducted by an external firm for Lambro (the “Marcum Valuation”),

which was filed as an exhibit to his motion to dismiss, and 2) the unredacted version of

the motion to dismiss, which references the specific valuations from that report. (Id.).

Tessel asserts that the Marcum Valuation contains confidential and sensitive business

information and is subject to a protective order between the parties. (Id. at 2). The

motion to seal is granted.

In deciding whether to seal or unseal filed materials, a court properly

conducts a three-step inquiry: First, the court determines whether the

record at issue is a judicial document—a document to which the

presumption of public access attaches. Second, if the record sought is

determined to be a judicial document, the court proceeds to determine the

weight of the presumption of access to that document. Third, the court

must identify all of the factors that legitimately counsel against disclosure

of the judicial document and balance those factors against the weight

properly accorded the presumption of access.

Giuffre v. Maxwell, 146 F.4th 165, 175 (2d Cir. 2025) (quoting Stafford v. Int’l Bus. Machines

Corp., 78 F.4th 62, 69 (2d Cir. 2023)).

The materials at issue are judicial documents, since they were “filed on a federal

court’s docket in the ordinary course of litigation.” Id. at 176. The presumption of

public access applies with full force to a dispositive motion, such as this motion to

dismiss. Id. at 177; see also Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019) (attaching

“strong presumption” to summary judgment materials). In light of the strong

presumption of access, sealing “may be justified only with specific, on-the-record

findings that sealing is necessary to preserve higher values and only if the sealing order

is narrowly tailored to achieve that aim.” Brown, 929 F.3d at 47 (quoting Lugosch v.

Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006)).

“[P]rotection of confidential commercial information and trade secrets may

overcome the presumption of public access[.]” Adstra, LLC v. Kinesso, LLC, No. 24-CV-

2639, 2025 WL 1002253, at *1 (S.D.N.Y. Mar. 31, 2025) (citing Standard Inv. Chartered,

Inc. v. Fin. Indus. Regul. Auth., Ind., 347 F. App’x 615, 617 (2d Cir. 2009) (affirming

sealing of information that would subject litigant to financial harm or a competitive

disadvantage where only specific financial data was redacted)).

Tessel argues that Lambro’s strong interest in keeping sensitive financial

information confidential is sufficient to outweigh the public’s interest in complete

disclosure. (Def.’s Mot. to Seal at 3). Tessel notes that the Marcum Valuation “contains

proprietary and business sensitive information belonging to Lambro, including all of its

financial results for many years,” as well as “an analysis of Lambro’s customer base and

its internal management decisions,” all of which “may have a material negative effect

on Lambro’s business” if made public. (Id. at 3–4). Further, Tessel notes that the SAC

publicly provides a high-level summary of the pertinent information from the Marcum

Valuation—that is, that it assessed Lambro at a lower valuation than another evaluation

from several years prior. (Id. at 3).

The Court agrees that sealing is appropriate, in light of the commercial interests

asserted and the narrowly tailored sealing and redactions to the memorandum in

support of Tessel’s motion to dismiss. E.g., Adstra, LLC, 2025 WL 1002253, at *2 (“[T]he

presumption of public access is overcome by the countervailing interest in protection of

confidential commercial information and trade secrets. The proposed targeted

redactions of confidential information and personally identifiable information are

narrowly tailored to serve that interest.” (quotation omitted)); Standard Inv. Chartered,

Inc., 347 F. App’x at 617. Thus, the motion to seal is granted.

CONCLUSION

In summary, the motions to dismiss and to file under seal are granted. Botterio’s

claims are completely preempted by ERISA and dismissed for failure to state a claim

thereunder. Botterio, having now had three chances to plead an ERISA claim that

survives dismissal, is denied further leave to amend. See Burch v. Pioneer Credit

Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (“[M]otions to amend should generally be

denied in instances of . . . repeated failure to cure deficiencies by amendments

previously allowed[.]); MSP Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77,

90 (2d Cir. 2023) (affirming denial of leave to amend and noting the Circuit has done so

where the plaintiff “was not unaware of the deficiencies in his complaint when he first

amended it and was on the plainest notice of what was required to avoid dismissal”

(quotation omitted)). The Clerk of Court is directed to close this case.

SO ORDERED.

/s/ Sanket J. Bulsara

SANKET J. BULSARA

United States District Judge

Date: December 23, 2025

Central Islip, New York