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 ARBITRATION AGREEMENT LITIGATION

GREGORY ABELAR, WILLIAM ABT, BRIAN BROWN, BRIAN BURGOYNE,

MARK CARLTON, WILLIAM CHASTKA, PHILLIP CORBETT, DENISE COTE,

MICHAEL DAVIS, MARIO DIFELICE, JOSEPH DUFFIN, BRIAN FLANNERY,

FRED GIANINY, OM GOECKERMANN, MARK GUERINOT, DEBORAH

KAMIENSKI, DOUGLAS LEE, COLLEEN LEIGH, STEPHEN MANDEL, MARK

MCHUGH, SANDY PLOTZKER, ALEXANDER SALDARRIAGA, RICHARD

ULNICK, MARK VORNHAGEN, JAMES WARREN, AND DEAN WILSON,

Plaintiffs-Appellants,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

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.

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.

SHANNON LISS-RIORDAN, Lichten & Liss-Riordan, P.C.,

Boston, MA (Thomas Fowler, on the brief), for Plaintiffs-

Appellants.

2

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

3

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. Facts 1

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).

4

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

5

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.

6

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

7

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

8

“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.

9

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

4The 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.

10

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.’”

11

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

12

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.

13

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

14

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.

15

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).

16

“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

17

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

18

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

19

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.

20

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.

21