Robert I. Bodian (admitted pro hac vice) James C. Cosby, Esq. (VSB No. 25992) 

Peter A. Biagetti (admitted pro hac vice) J. Brandon Sieg, Esq. (VSB No. 84446) 

Scott A. Rader (admitted pro hac vice) O’HAGAN MEYER, PLLC

John P. Sefick (admitted pro hac vice) 411 E. Franklin Street, Suite 500 

Kaitlin R. Walsh (admitted pro hac vice) Richmond, Virginia 23219

Amanda B. Asaro (admitted pro hac vice) (804) 403-7100 

Kerime S. Akoglu (admitted pro hac vice) Counsel for Defendants

MINTZ LEVIN COHN FERRIS GLOVSKY 

and POPEO, P.C. 

666 Third Avenue, 25th Floor 

New York, New York 10017 

(212) 935-3000 

Counsel for Defendants 

UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

 

In re: ) Chapter 11 

 ) 

TOYS “R” US, INC., et al.,1 ) Case No. 17-34665 

 ) 

Debtors. ) (Jointly Administered) 

 ) 

TRU CREDITOR LITIGATION TRUST, ) 

 ) 

Plaintiff, ) Adv. Proceeding No. 20-03038-KLP

 ) 

v. ) 

 ) 

DAVID A. BRANDON, et al ) 

 ) 

Defendants. ) 

 ) 

DEFENDANTS’ MOTION UPON CONSENT AND 

MEMORANDUM OF LAW FOR SEALING OF SETTLEMENT AGREEMENT 

AND RELATED DOCUMENTS 2

 

1

 The Debtors in these Chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting Related 

Relief. (ECF No. 78.) The location of Debtors’ service address is One Geoffrey Way, Wayne, NJ 07470. 2

 Pursuant to the Court’s Order (I) Establishing Certain Notice, Case Management, and Administrative Procedures 

and (II) Granting Related Relief, Case 17-34665-KLP (Bankr. E.D. Va. Sept. 21, 2017), ECF No. 129, Defendants 

have filed their motion and memorandum together. 

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2 

Defendants in the above-captioned Adversary Proceeding hereby move upon consent of 

the Trust for an order, pursuant to sections 105(a) and 107(b) of title 11 of the United States Code, 

§§ 101 et seq. (the “Bankruptcy Code”) and Rule 9018 of the Federal Rules of Bankruptcy 

Procedure (the “Bankruptcy Rules”), providing that the relief requested in the Trust’s Motion to 

File Documents Under Seal (Bankr. ECF No. 7618)3

 shall be on a permanent basis, such that the 

Settlement Agreement (Bankr. ECF No. 7617-2) shall remain under seal and the redacted material 

in the Trust’s motion for approval of the Settlement Agreement (the “Approval Motion”) (Bankr. 

ECF No. 7617) shall remain permanently redacted on the public record. 

PRELIMINARY STATEMENT 

The Settlement Agreement represents a full and final resolution of all claims brought by 

the TRU Creditor Litigation Trust (the “Trust”) against Defendants in the Adversary Proceeding. 

As detailed by the Trust in the Approval Motion, the compromise effectuated by the Settlement 

Agreement is in the best interests of the Debtors and their estates. The settlement forecloses 

additional costly litigation and allows the beneficiaries of the Trust to obtain a return without the 

delay and risks of ongoing litigation. Confidentiality is an important component of this agreement 

from Defendants’ perspective. Confidentiality was an indispensable threshold element to the 

casting of any settlement at all and is also necessary to protect the proprietary rationale of the 

insurers. The Bankruptcy Code and Bankruptcy Rules contemplate the need to ensure 

confidentiality of certain settlement-related materials in circumstances such as these. 

As set forth in detail below, courts nationwide regularly uphold requests to maintain the 

confidentiality of documents filed in connection with settlement agreements. Granting such 

3

 Citations to “ECF No.” refer to docket entries in this adversary proceeding. Citations to “Bankr. ECF No.” 

refer to docket entries in the underlying Chapter 11 proceeding of TRU (Case No. 17-34665). 

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3 

requests serves the important public policy of facilitating settlements, which conserves judicial 

and public resources. This concern is paramount here, where an expectation of confidentiality was 

a relevant factor in Defendants’ decision to settle this litigation, and where the Trust has agreed to 

consent to Defendants’ confidentiality request. Further, the material that Defendants seek to 

ensure remains permanently sealed and redacted constitutes confidential information that is 

entitled to such protection. Under these circumstances, and as described fully herein, the Court 

should order continued protection of the materials at issue. 

REQUESTED RELIEF 

Defendants request that this Court enter an order substantially in the form attached hereto 

as Exhibit A pursuant to sections 105(a) and 107(b) of title 11 of the Bankruptcy Code and Rule 

9018 of the Bankruptcy Rules, enabling the Settlement Agreement to remain under seal 

permanently and the redacted material in the Trust’s Approval Motion to remain permanently 

redacted on the public record. 

RELEVANT PROCEDURAL BACKGROUND 

The parties in the Adversary Proceeding attended two separate Court-ordered mediations 

under the guidance of the Honorable Kevin R. Huennekens, after which a good-faith, arm’s-length 

resolution was reached among the parties. The Settlement Agreement was entered into by the 

parties on September 2, 2022. Confidentiality was an important component of the settlement from 

Defendants’ perspective. To this end, pursuant to the terms of the Settlement Agreement, the 

parties to the Settlement Agreement agreed to keep the terms and conditions of the Settlement 

Agreement confidential, and the Trust agreed to file its Approval Motion under seal and file a 

public version that redacts the terms or conditions of the Agreement and includes other redactions 

requested by Defendants. The Settlement Agreement also provides that the Defendants or 

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4 

Insurance Carriers may timely file a motion for the Approval Motion to remain under seal. 

RELEVANT LEGAL BACKGROUND 

Section 105(a) of the Bankruptcy Code provides that “[t]he court may issue any order, 

process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 11 

U.S.C. § 105(a). Section 107(b) of the Bankruptcy Code provides bankruptcy courts with the 

power to issue orders to protect a party’s confidential, commercial or proprietary information. 

Furthermore, Bankruptcy Rule 9018 defines the procedure by which a party may move for relief 

under section 107(b) of the Bankruptcy Code. 

Section 107(b) of the Bankruptcy Code creates exceptions to the public access 

presumption, “mandating that the Court protect confidential information and defamatory or 

scandalous material upon request of a party in interest.” Robbins v. Delafield (In re Williams),

2017 Bankr. LEXIS 4183, at *7 (Bankr. W.D. Va. Dec. 8, 2017). Unlike its counterpart in Rule 

26(c) of the Federal Rules of Civil Procedure, Section 107(b) of the Bankruptcy Code does not 

require an entity seeking protection thereunder to demonstrate “good cause.” See Video Software 

Dealers Ass’n v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 28 (2d Cir. 1994). 

“Once a court determines that a party in interest is seeking protection of information that falls 

within one of the categories enumerated in section 107(b), ‘the court is required to protect a 

requesting party and has no discretion to deny the application.’” In re Borders Grp., Inc., 462 B.R. 

42, 47 (Bankr. S.D.N.Y. 2011) (quoting Orion, 21 F.3d at 27). 

ARGUMENT 

I. Redaction of the Designated Material Is Justified and Necessary to Effectuate the 

Parties’ Intent in Connection with the Settlement Agreement and Protect Sensitive 

Confidential Information 

Courts nationwide recognize that “[p]rotecting the confidentiality of the settlement 

agreement promotes the important public policy of encouraging settlements” and that “permitting 

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5 

disclosure would discourage settlements, contrary to the public interest.” Hasbrouck v. 

BankAmerica Hous. Servs., 187 F.R.D. 453, 458-459 (N.D.N.Y. 1999); see also Milliner v. Mut. 

Secs., Inc., 2021 U.S. Dist. LEXIS 120253, at *15 (N.D. Cal. June 28, 2021) (“The parties’ 

inclusion of the confidentiality provision in the settlement agreement itself supports the conclusion 

that they intended to keep the settlement agreement confidential and out of the public record. 

Numerous courts in this district have recognized the importance of protecting confidential 

settlement communications and materials ‘in order to promote settlement’ and have concluded that 

this general policy satisfies the more demanding ‘compelling reasons’ standard to seal judicial 

records.”); see also Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th 

Cir. 2002) (noting that courts have granted protective orders to protect confidential settlement 

agreements); Flynn v. Portland Gen. Elec. Corp., 1989 U.S. Dist. LEXIS 11219, at *4 (D. Or. 

Sept. 21, 1989) (“[T]the strong public policy favoring settlement of disputed claims dictates that 

confidentiality agreements regarding such settlements not be lightly abrogated.”); Kalinauskas v. 

Wong, 151 F.R.D. 363, 365 (D. Nev. 1993) (“The secrecy of a settlement agreement and the 

contractual rights of the parties thereunder deserve court protection.”); Prosurance Grp., Inc. v. 

Liberty Mut. Grp., Inc., 2011 U.S. Dist. LEXIS 22365 (N.D. Cal. Feb. 18, 2011) (finding good 

cause to allow the parties to file settlement agreement under seal to preserve the agreement’s 

confidentiality); Daniels v. Bursey, 2006 U.S. Dist. LEXIS 28080, at *16 (N.D. Ill. Feb. 23, 

2006) (issuing protective order protecting the confidentiality of the settlement agreement because 

“the parties to the agreement bargained for confidentiality, and there is a strong public policy 

favoring out-of-court settlements”). 

 Courts nationwide further explain that promoting settlements is in the public interest 

because “[c]onfidential settlements benefit society and the parties involved by resolving disputes 

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6 

relatively quickly, with slight judicial intervention, and presumably result in greater satisfaction to 

the parties.” Kalinauskas v. Wong, 151 F.R.D. 363, 365 (D. Nev. 1993); see also FDIC v. Ernst 

& Ernst, 92 F.R.D. 468, 472 (E.D.N.Y. 1981) (unsealing a settlement that was based upon 

confidentiality would discourage future settlements based upon confidentiality). 

 Here, Defendants’ expectation that this Court will uphold the confidentiality of the 

Settlement Order was a relevant factor in their decision to enter into the Settlement Agreement. 

This is reflected in Judge Huennekens’ inclusion of a confidentiality provision in his Mediator’s 

Proposal and the final executed agreement in which Defendants bargained for various 

confidentiality protections, including maintaining the confidentiality of the Settlement Agreement. 

Consequently, it is particularly appropriate for the confidentiality of the Designated Materials to 

be upheld. See, e.g., Bown v. Siegert, 2022 U.S. Dist. LEXIS 28827, at *5 (D. Idaho Feb. 16, 

2022) (finding that “judicial policy favoring voluntary settlement of disputes outweighs the interest 

of the public to access the Release Agreement. . . . If the Court were to allow public access to the 

Release Agreement, it would violate the expectation of the parties and discourage parties from 

voluntarily settling disputes.”). 

 Moreover, the Settlement Agreement also implicates the privacy interests of the Insurance 

Carriers (as defined in the Approval Motion), who are non-parties to the Adversary Proceeding. 

The settlement amount and terms and conditions of the settlement reflect competitively sensitive 

information as to them. This factor weighs further in supporting the privacy of the Settlement 

Agreement. See Fossil Grp. v. Angel Seller LLC, 2021 U.S. Dist. LEXIS 218446, *16, n.11 

(E.D.N.Y. Oct. 22, 2021) (finding “significant the fact that parties to a confidential settlement 

agreement proceeded with the understanding that the terms of the settlement agreement would 

remain confidential amounts to a showing of good cause. Further, as the confidential settlement 

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7 

agreements would likely involve many nonparties, the Court must be cognizant of the privacy 

interests of those nonparties.”) 

Further, the Approval Motion also includes contested assertions regarding the Trust’s 

evidence against the Defendants that was typically obtained within the framework of a protective 

order governing the proceeding (ECF No. 68) and that, due to the settlement, have not been 

presented at trial and adjudicated by a fact-finder. The Trust’s descriptions of the evidence are not 

ripe for placement in the public domain in light of the Settlement Agreement ending the litigation 

with respect to such evidence and terminating Defendants’ opportunity to respond to the same. As 

such, the referenced evidence is unduly disparaging and the Court should permit the Designated 

Materials to remain permanently under seal for this reason as well. 

CONCLUSION 

WHEREFORE Defendants respectfully request that the Court grant them the relief 

requested herein and such other and further relief as the Court deems just and proper. 

Dated: October 4, 2022 

Richmond, Virginia 

By: /s/ J. Brandon Sieg 

James C. Cosby, Esq. (VSB No. 25992) 

J. Brandon Sieg, Esq. (VSB No. 84446) 

O’HAGAN MEYER, PLLC

411 E. Franklin Street, Suite 500 

Richmond, Virginia 23219 

Tel: (804) 403-7100 

Fax: (804) 403-7110 

jcosby@ohaganmeyer.com 

bsieg@ohaganmeyer.com 

- and - 

Robert I. Bodian (admitted pro hac vice) 

Peter A. Biagetti (admitted pro hac vice) 

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8 

Scott A. Rader (admitted pro hac vice) 

John P. Sefick (admitted pro hac vice) 

Kaitlin R. Walsh (admitted pro hac vice) 

Amanda B. Asaro (admitted pro hac vice) 

Kerime S. Akoglu (admitted pro hac vice) 

MINTZ LEVIN COHN FERRIS 

GLOVSKY and POPEO, P.C. 

Chrysler Center 

666 Third Avenue, 25th Floor 

New York, New York 10017 

(212) 935-3000 

RIBodian@mintz.com 

PABiagetti@mintz.com 

SARader@mintz.com 

JPSefick@mintz.com 

KRWalsh@mintz.com 

ABAsaro@mintz.com 

KSAkoglu@mintz.com 

Counsel for Defendants 

 

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9 

CERTIFICATE OF SERVICE 

I hereby certify that on October 4, 2022, I caused a true and accurate copy of the foregoing 

to be electronically served by the Court’s CM/ECF System on all parties that receive CM/ECF 

notification in the above-captioned case. 

DATED: October 4, 2022 By: /s/ J. Brandon Sieg 

Counsel 

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Exhibit A 

EXHIBIT A 

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1 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

 

In re: ) Chapter 11 

 ) 

TOYS “R” US, INC., et al.,4

 ) Case No. 17-34665 

 ) 

Debtors. ) (Jointly Administered) 

 ) 

ORDER GRANTING DEFENDANTS’ MOTION FOR 

CONTINUED SEALING OF SETTLEMENT AGREEMENT 

 Upon the motion (the “Motion”)5 of Defendants for entry of an Order authorizing the 

continued sealing of the Settlement Agreement and the Confidential Information contained therein 

and in the Approval Motion; all as more fully set forth in the Motion; and this Court having 

jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing Order of 

Reference from the United States District Court for the Eastern District of Virginia, dated July 10, 

1984; and this Court having found that it may enter a final order consistent with Article III of the 

United States Constitution; and this Court having found that venue of this proceeding and the 

Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having 

found that the relief requested in the Motion is in the best interests of the Parties; and this Court 

having reviewed the Motion and having heard the statements in support of the relief requested 

therein at a hearing before this Court (the “Hearing”); and this Court having determined that the 

legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief 

4

 The Debtors in these Chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting Related 

Relief. (ECF No. 78.) The location of Debtors’ service address is One Geoffrey Way, Wayne, NJ 07470.

5

 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion. 

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2 

granted herein; and upon all of the proceedings had before this Court; and after due deliberation 

and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 

1. This Motion is granted as set forth herein. 

2. The relief requested in the Motion and in the Motion to File Documents Under Seal 

shall be on a permanent basis pursuant to sections 105(a) and 107(b) of the Bankruptcy Code and 

Bankruptcy Rule 9018. 

3. The Settlement Agreement shall remain under seal, and the public version of the 

Approval Motion shall remain redacted as filed by the Trust. 

4. Notice of the Motion as provided therein shall be deemed good and sufficient and 

the requirements of the Local Bankruptcy Rules are satisfied by such notice. 

5. The requirement under Local Bankruptcy Rule 9013-1(G) to file a memorandum 

of law in connection with the Motion is waived. 

6. The Court retains exclusive jurisdiction with respect to all matters arising from or 

related to the implementation, interpretation, and enforcement of this Order. 

Dated: __________, 2022 

Richmond, Virginia 

 

UNITED STATES BANKRUPTCY JUDGE 

 

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Local Rule 9022-1(C) Certification 

The foregoing Order was endorsed by and/or served upon all necessary parties pursuant to 

Local Rule 9022-1(C). 

 By: /s/ J. Brandon Sieg 

Counsel 

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