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A judge’s decision to reveal that a sex discrimination case ended in a “multi-million dollar settlement” has drawn the ire of the 2nd U.S Circuit Court of Appeals. The appeals court called Southern District Judge Harold Baer’s public revelation on the settlement between plaintiff Virginia Gambale and Deutsche Bank AG a “serious abuse of discretion” but said nothing could be done to remedy the error. “We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again,” said 2nd Circuit Judge Robert D. Sack, writing for the court in Gambale v, Deutsche Bank AG, 03-7621. “The genie is out of the bottle, albeit because of what we consider to be the district court’s error. We have not the means to put the genie back.” Gambale, a former managing director who was a partner in the Deutsche Bank Capital partners unit, sued in 2002. She claimed she was passed over for promotion because she is a woman and that the bank maintained a work environment hostile to women. The two sides entered into a confidential settlement in 2003. At a conference about the settlement, Judge Baer “wondered aloud why the public should not know about discrimination at a major banking institution,” the 2nd Circuit opinion said. Baer unsuccessfully pushed the two sides to make the information public. He also tried to get the bank to agree to conduct a global review of its treatment of women, the appeals court said. Ultimately, he ordered the unsealing of several documents in the action, including a study of gender diversity in the bank. The documents did not disclose the settlement amount, but Baer’s order said, “On the eve of trial, the parties agreed to a multi-million dollar settlement.” The order was promptly published on the databases of Westlaw and Lexis. The bank appealed the unsealing order, arguing first that Judge Baer lacked jurisdiction and, second, even if he had jurisdiction, the order was improper. Judge Sack said the district court had jurisdiction to issue the order unsealing the documents and did not abuse its discretion in doing so. The filing of a stipulation of dismissal, Sack said, does not divest “a court of jurisdiction either to dispose of material in its files as it thinks appropriate or to modify or vacate its own protective orders with respect to such documents.” Therefore, he said, Judge Baer had the right to conclude that there was a public right of access to the documents and he acted within his jurisdiction by issuing the unsealing order “even though the order followed the parties’ filing of the Stipulation of Dismissal.” But Baer’s revelation about the size of the settlement, Judge Sack said, “stands on starkly different footing.” Baer revealed the amount of the settlement at a conference on May 27, 2003. “At a conference, the district court insisted on learning the settlement amount without making a determination whether public disclosure of the amount was required,” Judge Sack said. “The Bank, based on what it may well have thought were assurances of confidentiality, complied.” The statements at the conference were “reduced to transcript form and filed,” becoming “part of a judicial record to which some presumption of openness, however gauged, may have therefore attached,” he said. Judge Sack said there was “a troubling element of bootstrapping about the presumption of access here.” “It arises out of the transcription of a relatively informal conference relating to settlement, (not adjudication of the dispute on the merits), the court’s rather off-hand request for confidential information during the course of the hearing, and the subsequent filing of the transcript of the hearing with the Clerk of Court,” he said. “While we emphatically attribute no improper motivation whatsoever to the district court, the result was to transmit arguably legitimately confidential data to a document to which the public has a presumptive right of access,” Sack said. The court then remanded the case with instructions to Judge Baer to seal permanently the transcript of the May 27 conference unless and until all other confidential information is redacted. Judges Joseph M. McLaughlin and Sonia Sotomayor joined in the opinion. Ronald M. Green of Epstein, Becker & Green represented Deutsche Bank. Debra L. Raskin of Vladeck, Waldman, Elias & Engelhard represented Gambale.

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