Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 1 of 6 PageID #: 523

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:12-CV-00246-H
MICHAEL E. JOHNSON, et al.

PLAINTIFFS

vs.
CORRECTIONS CORPORATION OF
AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
Pursuant to Fed. R. Civ. P. 24(b), Prison Legal News (“PLN”) seeks to intervene in this
action and to unseal the exhibits offered by the parties in support of their court-approved
settlement agreement. For the reasons that follow, the Court will grant PLN’s motions.
I.
Defendant, Corrections Corporation of America (“CCA”), is a private prison
management company that previously operated two prison facilities in Kentucky—Marion
Adjustment Center and Otter Creek Correctional Facility. Plaintiffs, certain current and former
employees of CCA, filed this action under the Fair Labor Standards Act (FLSA) and the
Kentucky Wage and Hour Act, alleging that CCA misclassified them as exempt from the acts’
respective overtime provisions and thereby wrongfully withheld earned overtime compensation.
Although Defendant denied Plaintiffs’ allegations, the parties stipulated to the conditional
certification of a class consisting of current and former employees at the two facilities. Twentyfive individuals participated in this action as party plaintiffs pursuant to 29 U.S.C. § 216(b).
The parties finalized the terms of a settlement agreement on November 21, 2013. They
jointly filed a motion for court approval of their agreement and also moved to seal two
supporting exhibits that contained “information concerning the amount that will be paid to each
1

Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 2 of 6 PageID #: 524

Plaintiff if the settlement is approved” and “information pertaining to Plaintiffs’ counsel’s
attorneys’ fees and costs.” On November 27, 2013, this Court approved the parties’ settlement
agreement and granted their motion to seal the supporting exhibits.
On February 4, 2014, PLN moved to intervene in this action and to unseal the
confidential exhibits. PLN is a subsidiary of the Human Rights Defense Center, a 501(c)(3) nonprofit corporation. PLN provides analysis of prison-related news through its website and its
monthly publication, Prison Legal News, reporting on such issues as disciplinary hearings,
prison conditions, jail litigation, and the private prison industry. PLN claims it seeks access to
the exhibits to adequately report the outcome of the FLSA dispute between the parties.
The Court will consider PLN’s motion to intervene and its motion to unseal the exhibits
in turn.
II.
Fed. R. Civ. P. 24(b) and Sixth Circuit precedent provide that a district court may allow a
party to intervene in an action (1) where the motion is timely, (2) where the proposed intervenor
“has a claim or defense that shares with the main action a common question of law or fact,” and
(3) where the intervention will not “unduly delay or prejudice the adjudication of the original
parties' rights.” Fed. R. Civ. P. 24(b); Bradley v. Milliken, 828 F.2d 1186, 1193–94 (6th Cir.
1987).
Here, PLN satisfies the conditions that make permissive intervention appropriate. First,
because PLN moved to intervene on February 4, 2014—less than ten weeks after the order
sealing the exhibits gave rise to PLN’s interest in participating in the case—its motion is timely.
Second, because PLN seeks to challenge the confidentiality order sealing the settlement exhibits,
its claim has “a question of law or fact in common” with the main action. See Pansy v. Borough

2

Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 3 of 6 PageID #: 525

of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994). Third, because PLN seeks intervention to
challenge a protective order and not to participate on the merits, its intervention would not
prejudice the existing parties. See In re Ethylene Propylene Diene Monomer (EPDM) Antitrust
Litig., 255 F.R.D. 308, 315 (D. Conn. 2009). Accordingly, the Court will grant PLN’s motion to
intervene.
III.
The Court will now consider PLN’s motion to unseal the settlement exhibits.
The Supreme Court has stated that “every court has supervisory power over its own
records and files” and that “the decision whether to permit [public] access [to court records] is
best left to the sound discretion of the trial court . . . .” Nixon v. Warner Communications, Inc.,
435 U.S. 589, 598 (1978). As the Sixth Circuit has noted, however, “having . . . ‘discretion’ to
deny access to documents does not . . . imply that the District Court operates without standards.”
Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983).
Specifically, the Court’s discretion to deny access to its files “is circumscribed by a longestablished legal tradition”—i.e. the presumptive right of public access to judicial records. Id.
This right is based on “the citizen’s desire to keep a watchful eye on the workings of [a] public
agenc[y],” Nixon 435 U.S. at 598, and it extends to records filed in support of a court-approved
settlement agreement, In re Polemar Constr. Ltd. P’ship, 23 Fed. App’x 423, 425 (6th Cir.
2001).
The public right of access is not absolute, however, and courts have properly denied
access when “files might have become a vehicle for improper purposes . . . [and] when interests
of privacy outweigh the public’s right to know.” In re Knoxville News-Sentinel Co., Inc., 723
F.2d 470, 474 (6th Cir. 1983). Thus, in determining whether to permit public inspection of its

3

Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 4 of 6 PageID #: 526

records, the Court must “balance the public’s common law right of access against the interests
favoring nondisclosure.” In re Polemar 23 Fed. App’x at 425.
In balancing these competing interests, the Court bears in mind that the party seeking to
block public inspection carries the burden of showing that some significant, countervailing
interest outweighs the public right of access. Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.
2007). As the Sixth Circuit has observed, “Only the most compelling reasons can justify nondisclosure of judicial records.” In re Knoxville 723 F.2d at 476. Even litigants’ reliance on the
confidentiality of certain documents in reaching a court-approved settlement agreement fails to
overcome the presumption of public access. See e.g. Brown v. Advantage Eng’g, Inc., 960 F.2d
1013, 1016 (11th Cir. 1992); Prater v. Commerce Equities Mgmt. Co., No. H–07–2349, 2008
WL 5140045, at *10 (S.D. Tex. Dec. 8, 2008); see also Jessup v. Luther, 277 F.3d 926, 929 (7th
Cir. 2002) (“The public has an interest in knowing what terms of settlement a federal judge
would approve and perhaps therefore nudge the parties to agree to.”).
Here, PLN moves to unseal the exhibits filed in support of the parties’ court-approved
settlement agreement. These documents constitute judicial records and are therefore
presumptively open to public inspection. Defendant nevertheless argues that significant interests
outweigh the common law right of access.
First, Defendant argues that because the Court “carefully considered and granted” the
parties’ motion to seal the exhibits, the Court should not now unseal the documents. In granting
an unopposed motion to seal documents supporting a settlement agreement, however, the Court
does not enjoin itself from later revisiting its decision if, as here, a third party comes forward
seeking access to the sealed material. It reserves the authority to vacate a protective order if

4

Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 5 of 6 PageID #: 527

subsequently challenged and if the parties seeking to preserve confidentiality cannot overcome
the presumption in favor of public access.
Second, Defendant argues that because the parties relied on the confidentiality of the
exhibits in negotiating their settlement, the Court should decline to unseal the documents. Even
assuming, however, that the protective order was a material element of the parties’ agreement,
their reliance on the documents’ confidentiality does not outweigh the interests in favor of
permitting public inspection. Moreover, Defendant has not convinced the Court precisely why
confidentiality was so material.
Finally, Defendant argues that no compelling reason justifies unsealing the exhibits. This
argument, however, overlooks the strong interest retained by the public in having access to
judicial records, including the settlement exhibits the parties filed with the Court. Moreover, this
argument ignores the weight of authority holding that the party seeking to uphold a challenged
confidentiality order bears the burden of showing that some significant interest outweighs the
presumptive right of access.
Consequently, Defendant fails to overcome the presumption in favor of permitting public
access, and the exhibits must be open to public inspection.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that PLN’s motion to intervene in this action is
SUSTAINED.
IT IS FURTHER ORDERED that PLN’s motion to unseal the exhibits offered in support
of the parties’ settlement is SUSTAINED, and the sealed exhibits [RE #55] SHALL BE
UNSEALED upon entry of this order.
This is a final order.

5

Case 3:12-cv-00246-JGH Document 62 Filed 08/13/14 Page 6 of 6 PageID #: 528

August 12, 2014

cc:

Counsel of Record

6