Memorandum of Law
(Motion to File Arbitration Award under Seal) (NY)

Summary

This memorandum of law in support of a Motion to file and arbitration award under seal is a standard template that attorneys can use to support a motion to file an arbitration award under seal in connection with an application to confirm, vacate, or modify the award in New York State Supreme Court. This template contains practical guidance and drafting notes. After an arbitrator issues a decision and award, the usual next step in the arbitration process is for the: • Prevailing party to seek judicial confirmation of the arbitral award or • Losing party to move to vacate or modify the award. See N.Y. C.P.L.R. §§ 7502, 7510–7511. There are two procedural mechanisms a party may use to confirm, vacate, or modify an arbitration award: • Commence a special proceeding. Where there is no action pending between the parties related to the arbitration, the party seeking to confirm, vacate, or modify the award must start a special proceeding. See N.Y. C.P.L.R. § 7502(a). To commence a special proceeding, you must file a petition in the proper court and county the arbitration agreement specifies. • File a motion. Where there is an action pending between the parties related to the arbitration, the party seeking to confirm, vacate, or modify the award may file a motion in that action. See N.Y. C.P.L.R. § 7502(a). Whether you are filing a petition or a motion, you must proceed in a civil action in New York Supreme Court and attach a copy of the arbitration agreement, the award, and any other relevant documents. If your client wants to maintain the arbitration award's confidentiality in any action to confirm, vacate, or modify the award, you must move for a court order allowing you to: • File the award and related documents under seal or • Redact confidential or proprietary information in the filed documents. See 22 NYCRR § 202.5; 22 NYCRR § 216.1. The public has a presumptive right to access documents filed in state court proceedings. See Gryphon Domestic VI, LLC v. APP Int'l Fin. Co., B.V., 814 N.Y.S.2d 110, 113 (1st Dep't 2006); Buzzfeed, Inc. v. Deputy Comm'r, Trials, N.Y.C. Police Dep't, 2019 N.Y. Misc. LEXIS 3338 (N.Y. Sup. Ct. June 18, 2019). However, the court has discretion to seal information from public disclosure for good cause, ranging from part of a document to the entire case file. See 22 NYCRR § 216.1(a); Nash v. Port Auth. of N.Y. and N.J., 747 N.Y.S.2d 433 (1st Dep't 2002). Under New York law, good cause requires the party seeking a sealing order to establish a "sound basis or legitimate need to take judicial action." See Tong v. S.A.C. Capital Mgmt., LLC, 835 N.Y.S.2d 881 (N.Y. Sup. Ct. 2007), quoting Gryphon Domestic VI, LLC v. APP Int'l Fin. Co., B.V., 814 N.Y.S.2d 110, 113 (1st Dep't 2006). To obtain a sealing order, you must make a motion in the manner provided under New York law for making and hearing motions generally. See 22 NYCRR § 216.1(a). Since timing typically is a paramount concern when seeking to file an arbitration award under seal, consider filing your application by order to show cause (OSC) in lieu of a notice of motion. See N.Y. C.P.L.R. 2214(d). The primary advantage of filing an OSC is that it shortens the prescribed motion deadlines and allows the court to hear your motion on an expedited schedule. Your sealing application should contain: • The OSC specifying the: ○ Relief requested (e.g., sealing the award and allowing access only to authorized parties and their counsel) ○ Grounds for the motion • Supporting affirmations or affidavits including: ○ The facts on which you base your application ○ Relevant documents supporting your factual assertions ○ Any other supporting evidence • A memorandum of law detailing: ○ The bases for your sealing order request ○ All facts establishing good cause to seal the arbitration award See N.Y. C.P.L.R. 2214. To maintain the award's confidentiality pending the court's decision on your sealing motion, you should: • Attach a redacted copy of the award to your motion to seal and your application to confirm, vacate, or modify the award • Include a provision in your OSC for a temporary restraining order to seal the award and the sealing motion while your motion is pending Be sure to provide the court with at least one set of your motion papers in unredacted form so the court can determine whether sealing is necessary. See Eusini v. Pioneer Elecs. (USA), Inc., 815 N.Y.S.2d 653 (2d Dep't 2006). Like all papers filed in New York Supreme Court, your memorandum of law must comply with the general formatting requirements in New York's Civil Practice Law and Rules (C.P.L.R.) and the Uniform Rules for New York State Trial Courts (Uniform Rules). See N.Y. C.P.L.R. 2101; 22 NYCRR § 202.5(a). For details on how to format documents in New York state court litigations, see Formatting Rules in Court (NY). For specific filing procedures, check your court's rules because the rules for filing a motion to seal can vary between counties and divisions. Some courts have specific instructions for filing a sealing application, including how to file redacted and unredacted copies of the documents at issue. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on making an OSC in New York Supreme Court, see Orders to Show Cause and Ex Parte Applications (NY). For a model annotated OSC, see Order to Show Cause for Preliminary Injunction and Temporary Restraining Order (NY). For more information on filing arbitration awards under seal, see Arbitration Awards: Filing under Seal (NY). For more information on sealing documents in New York, see Filing Documents under Seal (NY). For more information on confirming, vacating, or modifying arbitration awards in New York, see Arbitration Awards: Confirming and Enforcing (NY) and Arbitration Awards: Vacating or Modifying (NY). For relevant templates, see Petition (Confirm Arbitration Award) (NY) and Petition (Vacate or Modify Arbitration Award) (NY). For a detailed discussion of confirming an arbitration award in New York, see Weinstein, Korn & Miller, New York Civil Practice: CPLR P 7510.00–7510.16.