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THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ZAYDA RAZON, MICHAELA RICE, )

CANDACE HILL, GWENELL WHITE )

)

Plaintiffs, )

)

vs. ) Cause No. 2:16-cv-441

)

DAKSHA VYAS, M.D., )

)

Defendant. )

JOINT BRIEF IN SUPPORTY OF MOTION TO SEAL

CONFIDENTIAL SETTLEMENT AGREEMENT

The parties, by their respective counsel respectfully submit their brief in support of their 

motion to seal confidential settlement agreement.

The Supreme Court has recognized a “common law right of access” to judicial records in 

Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). 

U.S. v. Corbitt, 879 F.2d 224, 228 (7th Cir.,1989). “This right of access establishes, as a general 

matter, that court files should be open to the public for inspection and copying. However, the 

Court observed that the ‘common law right of access’ is a flexible concept, which allows the 

district court to deny access where its records would be used for ‘improper purposes’; 

specifically, the discretionary decision whether to release judicial records should be informed by 

a ‘sensitive appreciation of the circumstances that led to ... the production of the particular 

document in question.’” Corbitt, 879 F.2d at 228 citing Nixon, 435 U.S. at. 602-03, 98

and United States v. Edwards, 672 F.2d 1289, 1293 (7th Cir.1982).

This case involves the medical practice of Dr. Vyas, a neurologist, who works as a solo 

practitioner. Her office staff filed a four count complaint against her; the first count asserts a 

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claim under the FLSA, Count II asserts an intentional infliction of emotional distress claim, 

Count III a battery claim, and Count IV makes a claim under ERISA. The parties negotiated a 

comprehensive, confidential settlement agreement addressing all four claims.

The parties recognize and acknowledge the Court’s concern regarding their request to 

seal the confidential settlement agreement and that “the existence of a confidentiality provision 

in the parties’ Agreement is not, by itself, justification enough to overcome the strong 

presumption of public access.” [Dkt 36, Opinion and Order of June 14, 2017, p.4]. If this case 

was limited to the FLSA claim, the parties acknowledge that sealing the agreement might not be 

justified. However, the settlement at issue involves all of plaintiffs’ claims, including plaintiffs’ 

ERISA claim and state law claims, the resolutions of which include individual plaintiff’s

financial information, and common law tort claims which are routinely resolved by a private and 

confidential settlement agreement. The agreement in principle for a global resolution of all 

disputes came to fruition after hours of negotiation, only after the parties agreed to a confidential 

settlement and general release. The parties respectfully submit that a weighing of the interests in 

this particular case supports sealing the confidential settlement agreement.

A. Plaintiffs should not be required to publicly file their individual financial 

information regarding their interests in the Keogh plan.

“Good cause may exist if the documents are sealed in order to maintain the 

confidentiality of . . . non-public financial and business information.” Swarthout v. Ryla 

Teleservices, Inc., 2012 WL 5361756, at *2 (N.D.Ind. 2012) citing Baxter Int' l v. Ryla 

Teleservices, Inc., 297 F.3d 5 at 544, 546 (7th Cir. 2002) and Metavante Corp. v. Emigrant Sav. 

Bank, No. 05–CV01221, 2008 WL 4722336, at *9–10 (E.D.Wis. Oct. 24, 2008). As part of 

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their settlement agreement, the parties have addressed and resolved the plaintiffs’ claims 

regarding each plaintiff’s interests in the Keogh plan, the amounts each employee is entitled to 

under the plan, and how those funds should be handled. All of this information is part of the 

Confidential General Release and Settlement Agreement. The resolution of the plaintiffs’ 

ERISA claims does not require court approval and would typically be resolved by a private 

settlement agreement.

More recently, the courts have recognized a compelling interest for privacy protection. 

Under Fed.R.Civ.Pro. 5.2(a), a party is not only authorized but compelled to redact certain 

information regarding an individual’s personal information, including social security number, 

date of birth or financial account numbers. This rule also gives the court discretion to order “a 

filing be made under seal without redaction.” FRCP 5.2(d). Although an individual employee’s 

financial information under a Keogh plan is not specifically designated, the commentary to the 

rule provides guidance that “[i]t may also be necessary to protect information not covered by the 

redaction requirements-- such as driver’s license number and alien registration numbers—in a 

particular case.” FRCP 5.2 committee notes on rules—2007. In those instances, the rule

counsels that “protection may be sought under subdivision (d) or (e)” which provides for a filing 

under seal without redaction. The individual plaintiff’s personal financial information is not a 

matter of public concern, nor does it invoke a public interest. It is “self-evident” that personal 

financial records “are something almost all persons would prefer to keep private.” Indiana has 

recognized under Trial Rule 26 (C), the parallel to FRCP 26(c), that good cause exists for entry 

of a protective order regarding an individual’s personal financial information. Estate of Lee ex 

rel. McGarrah v. Lee & Urbahns Co., 876 N.E.2d 361, 369 (Ind.Ct.App. 2007).

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B. Confidential settlement of plaintiffs’ common law tort claims promotes 

the efficient administration of justice and protects against unwarranted

embarrassment

“Every court has supervisory power over its own records and files, and access has been 

denied where court files might have become a vehicle for improper purposes.” Nixon, 435 U.S. 

at 598. Nixon noted that “the common-law right of inspection has bowed before the power of a 

court to insure that its records are not ‘used to gratify private spite or promote public scandal’

through the publication of “the painful and sometimes disgusting details” of a case. Similarly, 

courts have “refused to permit their files to serve as reservoirs of libelous statements for press 

consumption. . . .” Id.

Plaintiffs have made provocative allegations about Dr. Vyas personally, which Dr. Vyas 

vehemently denies. After lengthy settlement discussions, the parties made the business decision 

that resolving all of the claims against her early in litigation by way of a confidential settlement 

agreement was in the best interests of everyone involved. Litigating these contentions would 

have destroyed the parties’ ability to work together, and further publication of these allegations 

may jeopardize the reputation and business of the practice, which all parties rely upon for their

livelihood. Faced with these economic perils, both sides made the decision to settle all claims

confidentially, rather than incur the costs, both economic and reputational, and potential public 

scrutiny and scorn that might arise from pursuing this case. As with the ERISA claim, there is 

no common law or Constitutional right of the public to inspect a settlement of the tort claims the 

plaintiffs here bring, and they are typically resolved by confidential settlement agreement. 

Publishing the confidential settlement agreement because of the companion FLSA claim would 

undermine the very considerations that made the settlement possible in the first place.

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C. The publication of the settlement agreement provides limited value to the 

public in this case.

“[T]he Fair Labor Standards Act is designed to prevent consenting adults from 

transacting about minimum wages and overtime pay.” Walton v. United Consumers Club, 

Inc., 786 F.2d 303, 306 (7th Cir.1986). “The court must review settlements because there is a 

fear that employers would coerce employees into settlement and waiver of their claims.” 

Burkholder v. City of Ft. Wayne, 750 F.Supp.2d 990, 995 (N.D.Ind.,2010). To determine the 

fairness of a settlement under the FLSA, the court must consider whether the agreement reflects 

a reasonable compromise of disputed issues rather than a mere waiver of statutory rights brought 

about by an employer's overreaching.’ Id.

The plaintiffs allege in their complaint that each plaintiff earns between $16.00 and 

$21.00/ hr, (Dkt.1 Complaint, ¶40, 41, 42 and 43), more than double the minimum wage. The 

factual dispute presented was whether any of the plaintiffs actually worked more than 40 hours 

per week. All parties agreed that office hours began around 2:00 p.m. and would conclude 

between 5:00 p.m. and 7:00 p.m. Dr. Vyas would round at the hospital in the morning, and come 

to the office around 2:00 p.m. for office hours. Although the plaintiffs’ timesheets reflect they 

routinely worked 40 hours per week, the plaintiffs contend they actually worked more hours 

before Dr. Vyas arrived. How this factual issue might have resolved in litigation is unknown, 

however, approving the parties’ settlement agreement does not provide any public guidance in 

FLSA standards or assurance that an employer is not contracting around the statutory 

requirements.

The parties have set forth in detail the extensive efforts each side took to evaluate the 

claim, the adversarial nature of the proceedings, and what each party did to ensure a fair 

compromise. All of the details of the process are set forth in a joint motion to approve that is 

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accessible to the public. [Dkt 34]. The motion provides sufficient public disclosure to ensure 

that approval of the confidential settlement agreement comports with the public’s sense of justice

and that the Court has fulfilled its responsibility of ensuring that the parties have complied with 

the requirements of the FLSA.

D. Confidentiality advances compelling interests of promoting settlement 

and efficient use of judicial resources.

“To be sure, sealing official documents should not be done without a compelling reason.” 

City of Hartford v. Chase, 942 F.2d 130, 135 (2nd Cir.1991). However, the Court may also take 

notice of the context of agreements calling for entry of settlements, the “larger role” the court 

plays in the resolution of the case and how the case and settlement affect the public interest. City 

of Hartford, 942 F.2d at 136. “Where a case is complex and expensive, and resolution of the 

case will benefit the public, the public has a strong interest in settlement. The trial court must 

protect the public interest, as well as the interests of the parties, by encouraging the most fair and 

efficient resolution. This includes giving the parties ample opportunity to settle the case.” U.S. v. 

Glens Falls Newspapers, Inc., 160 F.3d 853, 856–57 ( 2

nd Cir. 1998)( holding “[t]he need for a 

fair and efficient resolution through settlement of this complex, expensive, ten-year-old case of 

great public importance far outweighs the negligent presumption of access to settlement 

materials.”) In this case, as in City of Hartford, “confidentiality was a prerequisite to the parties' 

decision to settle their dispute.” Approval of a confidentiality order is appropriate under these 

circumstances, when the Court has paid careful and particularized scrutiny to facilitating a 

confidential settlement. Id.

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Conclusion

A balancing of the interests supports the parties’ joint request to seal the confidential 

general release and settlement agreement. The majority of the claims presented do not require 

Court approval, and those claims are routinely settled by confidential agreement. Further, 

sealing the Confidential General Release and Settlement Agreement protects the plaintiffs’ 

individual financial information in the Keogh plan, guards against unwarranted embarrassment, 

and promotes the early settlement of this case and efficient use of judicial resources. The 

publicly available filings provide reasonable assurance to the public that the parties have 

complied with the statutory requirements of the FLSA and that the Court has fulfilled its role.

Respectfully Submitted 

EICHHORN & EICHHORN, LLP LAW OFFICE OF ROBIN REMLEY, 

LLC

By: /s/ David J. Beach By: /s/ Robin Remley

David J. Beach Robin Remley

Attorney for Defendant Attorney for Plaintiffs

EICHHORN & EICHHORN, LLP Law Office of Robin Remley, LLC

Attorneys at Law 270 N. Main St., Suite A

200 Russell Street Crown Point, IN 46307

P.O. Box 6328

Hammond, IN 46328

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