GEA Group AG v. Baker, No. 13-2594 (7th Cir. 2014)

Annotate this Case

In 2004 GEA, a German company, agreed to sell a subsidiary, DNK, to Flex‐N‐Gate, a U.S. manufacturer for €430 million. The contract required arbitration of all disputes in Germany. The sale did not close. GEA initiated arbitration before the Arbitral Tribunal of the German Institution of Arbitration. The arbitration was pending in 2009 when GEA filed suit in an Illinois federal district court, against Flex‐N‐Gate and its CEO, Khan, alleging that the defendants had fraudulently induced it to enter into the contract; that Khan stripped the company of assets so that it would be unable to pay any arbitration award; and that Khan was Flex‐N‐Gate’s alter ego. GEA then asked the district judge to stay proceedings, including discovery. The judge declined to stay discovery. GEA filed a notice of appeal after the German arbitration panel awarded GEA damages and costs totaling $293.3 million. The Seventh Circuit dismissed GEA’s appeal as moot, but the German Higher Regional Court in vacated the arbitration award. GEA renewed its motion. The district judge again denied the stay, stating that he was unsure how the arbitration would affect the case before him and didn’t want to wait to find out. The Seventh Circuit reversed. The district judge then imposed a stay, which it later lifted for the limited purpose of allowing Khan to conduct discovery aimed at preserving evidence that might be germane to GEA’s claims against him in the district court suit. The Seventh Circuit affirmed, first holding that it had appellate jurisdiction.

Download PDF

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 2135 GEA GROUP AG, Plaintiff Appellant, v. FLEX N GATE CORPORATION and SHAHID KHAN, Defendants Appellees. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 2:09 cv 02106 HAB DGB Harold A. Baker, Judge. ________________________ No. 13 2594 IN RE: GEA GROUP AG, Petitioner. ______________________ Petition for Writ of Mandamus from the United States District Court for the Central District of Illinois. No. 2:09 cv 02106 HAB DGB Harold A. Baker, Judge. ______________________ ARGUED DECEMBER 12, 2013 DECIDED JANUARY 10, 2014 ______________________ 2 Nos. 13 2135, 13 2594 Before BAUER, CUDAHY, AND POSNER, Circuit Judges. POSNER, Circuit Judge. Before us is an appeal by GEA Group AG from an order by the district judge partially lift ing a stay of discovery in a diversity suit brought by GEA against Flex N Gate Corporation and its CEO, board chair man, and controlling shareholder, the American billionaire Shahid Khan. Also before us is a petition for mandamus by GEA, should we decide we don t have appellate jurisdiction. We do have appellate jurisdiction, as we ll explain, so the petition for mandamus can be dismissed as superfluous. Al so before us, discussed at the end of this opinion, is a motion to seal certain documents. The overriding issue is whether the district judge had au thority to allow any discovery to proceed, when the fruits of the discovery might be relevant to, and might even be placed in evidence in, a pending foreign arbitration proceed ing. GEA (pronounced gaya ), a German engineering com pany, in May 2004 agreed to sell one of its subsidiaries Dynamit Nobel Kunststoff (DNK), a plastics manufacturer to Flex N Gate, a U.S. manufacturer of auto parts. The price agreed on was ¬430 million. A clause in the sale contract re quired arbitration in Germany of any dispute over the con tract. The sale did not close, and in October 2004 GEA initi ated arbitration in Germany before the Arbitral Tribunal of the German Institution of Arbitration (see DIS Arbitration Rules 98, July 1, 1998, www.dis arb.de/scho/16/rules/dis arbitration rules 98 id10 (visited Jan. 10, 2013)), charging Flex N Gate with having broken the contract. GEA later sold DNK to a Swedish company, but at a considerably lower price than the price in GEA s contract with Flex N Gate. Nos. 13 2135, 13 2594 3 The arbitration proceeding was pending when in 2009 GEA, not content with having initiated arbitration, brought suit in a federal district court in Illinois. The suit named as defendants not only Flex N Gate but also Khan, who, though as Flex N Gate s CEO he had been involved in the contract negotiations, was neither a signatory of the 2004 contract nor a party to the arbitration. GEA alleged that the defendants had fraudulently induced it to enter into the con tract by exaggerating Flex N Gate s financial strength; that Khan had used his control over Flex N Gate to strip that firm of its assets so that it would be unable to pay whatever award the German arbitration panel made to GEA; and that Khan was Flex N Gate s alter ego and therefore barred from pleading limited shareholder liability and instead obligated to pay any such award even if he hadn t been complicit in a fraudulent conveyance of the firm s assets. Very oddly, GEA s complaint didn t mention the arbitration. GEA, having sued, then asked the district judge to stay all proceedings in its suit, thus including discovery, which the defendants were eager to conduct. For in their answers to GEA s complaint, and in counterclaims (filed only by Flex N Gate, however), they had sought to turn the tables on GEA by charging that Flex N Gate had been induced to sign the sale contract by misrepresentations by GEA Flex N Gate was the victim, GEA the malefactor. The judge denied GEA s motion to stay discovery. He was surprised that GEA would file a suit and immediately attempt to put it into deep freeze, and he was miffed by GEA s failing to mention the pending arbitration in its complaint and by seeming to be trying to bypass or at least duplicate the arbitration. For the suit aimed to show as GEA was trying to show in the arbi tration that Flex N Gate and Khan were responsible for the 4 Nos. 13 2135, 13 2594 contractual breakdown. The judge thought that Khan, hav ing been sued gratuitously as it seemed by GEA, and not being a party to the arbitration, should be allowed to defend himself by seeking discovery in the proceeding in which he was a party. GEA filed a notice of appeal from the denial of its stay of discovery on March 22, 2010 three days after the German arbitration panel, having completed the arbitration at last, had issued its decision, which was to award GEA damages and costs totaling some ¬213.4 million (about $293.3 million). We dismissed GEA s appeal as moot, believing that a final arbitration award would end their dispute. But Flex N Gate was able to persuade the Higher Regional Court in Frankfurt to vacate the arbitration award which thus turned out not to be final after all and order a brand new arbitration. GEA had renewed its motion in the district court for a stay of discovery (indeed a stay of all proceedings in the case) pending the outcome of the German proceedings. The district judge again denied the stay, on the ground that he was unsure how those proceedings would affect the case be fore him and didn t want to wait years to find out. GEA again appealed to us and this time we held, in an un published order issued in June 2011, that the claims in the district court proceeding were clearly governed by the arbi tration provision. As a result, the case should be stayed pending arbitration. So we reversed the district court and remanded with directions that it stay proceedings pending resolution of all arbitration proceedings. GEA had sought review of the Frankfurt court s decision by the German Federal Court of Justice (Germany s highest court for the decision of nonconstitutional cases), but that Nos. 13 2135, 13 2594 5 court declined to hear the appeal. That was in October 2012 and in December the new arbitration ordered by the Frank furt court began, again before the Arbitral Tribunal of the German Institution of Arbitration. The primary reason the Arbitral Tribunal gave for restarting the arbitration forth with notwithstanding a separate pending appeal, this one by Flex N Gate, asking the Frankfurt court to terminate the arbitration altogether (which would spell utter defeat for GEA) was to minimize further delay in resolving a breach of contract claim now nine years old. After the rejection of GEA s appeal by the Federal Court of Justice, Flex N Gate had moved to reopen discovery in the present case. The district judge conducted a hearing in May 2013 that clarified the parties positions. GEA made clear that its district court suit was ancillary to the arbitration: if it won a final final award (that is, a final arbitration award that survived judicial challenge in Germany, as the previous final award had not) and Flex N Gate paid the award in full, GEA s claims in the district court suit would be moot, and likewise if it lost the arbitration. But if Flex N Gate didn t pay in full, GEA would seek to obtain a judgment in the dis trict court proceeding ordering Khan to pay GEA the differ ence between the arbitration award and what Flex N Gate paid toward satisfaction of the award. So if, for example, the award was again ¬213.4 million, and Flex N Gate paid ¬20 million, GEA would ask the district court to enter judgment against Khan for ¬193.4 million, on the ground either of fraudulent conveyance of Flex N Gate assets or of his being his company s alter ego. GEA argued that discovery in the district court case would therefore be premature, since if it either lost the arbi 6 Nos. 13 2135, 13 2594 tration, or won and was paid in full by Flex N Gate, it would voluntarily dismiss its case. It argued that a stay of discovery not only would be prudent in light of that circumstance but was required by the United States Arbitration Act, 9 U.S.C. §§ 1 et seq. Section 3 of the Act, captioned stay of proceed ings where issue therein referable to arbitration, provides that if any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbi tration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such ar bitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in de fault in proceeding with such arbitration. GEA argued that since some of the issues raised in the district court suit were also issues in the arbitration proceeding, a stay of the trial of the action in the district court was mandatory and would extend to discovery. For the archaic term trial of the action in section 3 has been understood to include pretrial proceedings, such as discovery, rather than being limited to the trial phase of litigation. IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 528 29 (7th Cir. 1996); cf. Corpman v. Pru dential Bache Securities, Inc., 907 F.2d 29, 31 (3d Cir. 1990) (per curiam); Suarez Valdez v. Shearson Lehman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (per curiam); Lummus Co. v. Commonwealth Oil Refining Co., 273 F.2d 613, 613 14 (1st Cir. 1959) (per curiam). Khan responded that the issue of his liability for an arbi tral award in GEA s favor was not an issue in the arbitration, because he was not a party either to the arbitration or to the Nos. 13 2135, 13 2594 7 contract that was its subject matter. Hence section 3 was in applicable and so no stay was required. The district judge agreed in part, ordering that the stay of discovery that he d imposed pursuant to our order in the first appeal be lifted for the limited purpose of allowing Khan to conduct discov ery aimed at preserving evidence that might be germane to GEA s claims against him in the district court suit. That s the order GEA appeals from. The district judge has stayed his partial lifting of the stay pending our disposition of this ap peal. The order lifting the stay is inconsistent with our un published order directing the judge to stay all proceedings before him pending the German arbitration. But he was jus tified in issuing a new order on the basis of new develop ments since our order, which had been issued two years (short one month) earlier, in June 2011. We have jurisdiction of the appeal. Section 16(a)(1)(A) of the Arbitration Act provides that an appeal may be taken from an order refusing a stay of any action under section 3 of this title [Title 9]. GEA asked for a stay under section 3 of all proceedings in the district court. The district judge in the order that GEA is appealing has granted in effect a more limited stay. His refusal to grant the complete stay that GEA seeks is appealable even though the stay order is interlocuto ry and the appellant might not be entitled to the stay that he is seeking. Arthur Andersen, LLP v. Carlisle, 129 S. Ct. 1896, 1900 (2009). We are mindful that the Arbitration Act has a separate chapter (Chapter 2), entitled Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and that sec tions 3 and 9 of the Act are in Chapter 1. But Chapter 2 con cerns the enforcement of foreign arbitration awards, which is 8 Nos. 13 2135, 13 2594 not an issue in this appeal. And in 9 U.S.C. § 208, Chapter 2 expressly preserves the applicability of Chapter 1 to foreign arbitration unless there is a conflict either with Chapter 2 or with the Convention (Chapter 2 implements the Conven tion it is not the Convention itself). There is no conflict in this case. The defendants argue that the only difference between the stay that GEA sought and the stay that the district judge granted was that the broader stay sought by GEA would have prevented Khan from conducting any discovery; and since he isn t a party to the arbitration no issue involving him is referable to arbitration and so section 16 is inappli cable. But even if this is right, all that matters for appealabil ity, as the Carlisle decision makes clear, is that the appellant have sought the stay on the authority of section 3, whether or not the stay was authorized by that section. All that s re quired to confer jurisdiction is thus a colorable section 3 claim, not necessarily a meritorious one. Anyway the only reason GEA wanted the broader stay was fear that Khan, who after all controls Flex N Gate, will reveal to his company anything he learns in discovery that might be germane to the arbitration; the discovery may thus indeed concern issue[s] referable to arbitration. Remember that the defendants answer and counterclaims seek to affix blame for the breakdown of the contract for the sale by Flex N Gate of DNK on GEA an issue not only germane, but potentially central, to the arbitration. This is another reason to conclude that GEA s motion, and subsequent appeal, are proper. Coming at last to the merits, we think that what the dis trict judge did on remand in allowing Khan to conduct dis Nos. 13 2135, 13 2594 9 covery was not only reasonable but eminently sensible. GEA should not have brought this suit. To the extent that it dupli cates the arbitration by charging Khan, Flex N Gate s CEO, with responsibility for the breakdown of the contract, thus offering GEA a second bite at the same apple, it appears to violate the arbitration clause of GEA s contract with Flex N Gate. And to the extent that GEA seeks by this suit to protect itself against ending up with a worthless award if Khan has spirited away Flex N Gate s assets, the suit may well be premature. If GEA loses the arbitration, Flex N Gate s ability to satisfy an arbitration award is irrelevant and the case moot. And likewise if GEA obtains an award and Flex N Gate pays it in full. If GEA obtains an award and Flex N Gate doesn t pay it, GEA can sue Khan for fraudulent con veyance or as Flex N Gate s alter ego. There cannot be any serious doubt of Khan s ability to pay such an award. But there s a rub: GEA argues that if it waits to sue Khan for fraudulent conveyance (now often called fraudulent transfer) until a final final arbitration award is issued (which, in Germany at least, can take a long time, as we now know), the statute of limitations governing such a suit may have expired. The statute of limitations in both the Uniform Fraudulent Transfer Act and Illinois s version of the Act is only four years, see 740 ILCS 160/10, and begins to run on the date of the transfer (or within a year after the plaintiff discovered the transfer if he had not and could not through reasonable diligence have discovered it at least a year before the four year period expired) if the transfer was made with fraudulent intent. Id.; Fidelity National Title Ins. Co. v. Howard Savings Bank, 436 F.3d 836 (7th Cir. 2006). So the statute of limitations might (or might not see below) have run had GEA waited any longer to sue. GEA contends that Khan be 10 Nos. 13 2135, 13 2594 gan transferring Flex N Gate assets shortly after the aborted contract of sale was signed, which was in 2004. It would have been perilous for GEA to have waited beyond 2009 to sue Khan for engineering a fraudulent conveyance. Or so GEA argues. The argument, which appears only in a short footnote in GEA s opening brief, is insufficiently de veloped to be a ground for reversal. Oddly, GEA s counsel led with the statute of limitations at the oral argument, but without particulars. The idea that a claim for fraudulent conveyance aimed at evading having to pay a hypothetical future judgment ac crues before the judgment is entered seems far fetched and would be if understood to entitle any plaintiff seeking mone tary relief in a lawsuit to include a claim for fraudulent con veyance in his complaint just because the defendant might conceivably seek to elude a judgment against him, if he got a judgment, by squirreling away the assets needed to satisfy it. After the oral argument, however, GEA sent the court a let ter briefly amplifying its statute of limitations argument by citing several Illinois cases. One of them, decided by the Illi nois Appellate Court, supports GEA s position Levy v. Markal Sales Corp., 724 N.E.2d 1008, 1012 14 (Ill. App. 2000) as does a subsequent case from that court, not cited by GEA: Salisbury v. Majesky, 817 N.E.2d 1219, 1222 (Ill. App. 2004). The Supreme Court of Illinois has not addressed the issue, however, and it s by no means certain that when it does it will agree with the appellate court. As forcefully ar gued in Cortez v. Vogt, 52 Cal. App. 4th 917, 935 37 (1997), the purpose of the drafters of the Uniform Fraudulent Trans fer Act in eliminating the requirement that a creditor, to be allowed to bring a suit for a fraudulent transfer, must have a Nos. 13 2135, 13 2594 11 matured claim, such as a judgment or a lien, was to expand the rights of potential victims of fraudulent transfers. It was not to put them in a statute of limitations pincers, forcing them to sue prematurely in anticipation of a possible diffi culty in collecting a judgment against their debtor, should they obtain such a judgment. Being allowed to sue as a potential judgment creditor in order to prevent or rescind a fraudulent transfer is different from being forced to sue that early on pain of being held to be time barred if one waits to sue until one has a judgment. Although an injury alleged when one is still only a potential judgment creditor can only be a probability of injury, be cause there may be no judgment (no award, if it is an arbitral rather than adjudicative proceeding), a probabilistic harm, if nontrivial, can support standing. Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998), quoted in Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013). If a postjudgment suit to recover assets that had earlier been fraudulently conveyed might prove futile if the assets might by then have been con cealed, or been dissipated, or have otherwise been placed beyond the reach of the judgment creditor the potential judgment creditor faces a probabilistic harm that may entitle him to injunctive relief; the conveyance of his property by a tort defendant, made with intent to defraud the tort plaintiff, is subject to invalidation as a fraudulent convey ance, even though the liability to the prospective tort creditor has not matured into a judgment at the time of the transfer. United States v. Chapman, 756 F.2d 1237, 1241 (5th Cir. 1985) (em phasis added). It doesn t follow, however, that the statute of limitations begins to run as soon as the plaintiff discovers or should 12 Nos. 13 2135, 13 2594 through the exercise of reasonable diligence have discovered the conveyance. There is not yet a national consensus on whether it starts to run that soon, or a definitive ruling in Illinois law. (Anyway forfeiture of a ground of appeal is not redeemed by a post argument letter to the court.) But Mor ganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 416 17 (3d Cir. 2003), like the Cortez decision that we cited earlier, sensibly holds that the statute of limita tions does not begin to run as long as the creditor s claim has not yet matured, is still merely potential. And if this is wrong and it does start to run then, we can t understand why having filed such a claim GEA has not sought injunc tive relief why instead it has sought to stay all proceedings in its suit, which would include a request by it for prelimi nary relief pending the outcome of the arbitration. If Khan is seeking to place Flex N Gate s assets beyond GEA s reach, GEA by failing to seek injunctive relief and instead seeking to freeze its suit its own suit is assisting Khan to do so. Put differently, the only reason GEA could have for filing its suit when it did was to enjoin Khan from taking steps that might make it impossible for GEA to collect an arbitration award from Flex N Gate. Not only has GEA sought no injunctive relief; it waited two years after discovering the alleged fraudulent convey ance to file suit at all. Were it to wake up at this late date (four years after suing) and seek injunctive relief, the doc trine of laches would be an insurmountable barrier. See Teamsters & Employers Welfare Trust of Illinois v. Gorman Brothers Ready Mix, 283 F.3d 877, 881 (7th Cir. 2002) cf. Orien tal Financial Group, Inc. v. Cooperativa de Ahorro y Credito Ori ental, 698 F.3d 9, 20 and n. 8 (1st Cir. 2012). Nos. 13 2135, 13 2594 13 The statute of limitations could in any event have had no effect on the alter ego claim that appears in GEA s com plaint, or its claim that Khan fraudulently induced Flex N Gate to breach its contract with GEA. For neither claim arises out of the alleged shuffling of Flex N Gate s assets to other provinces of Khan s commercial kingdom. If it s true that Flex N Gate is, in contemplation of law, Khan, then if GEA wins and Flex N Gate doesn t pay the award he will be lia ble. The statute of limitations has a possible effect only on GEA s alternative charge against him of fraudulent convey ancing of Flex N Gate s assets. All this turns out to be rather a side issue, however; for the ground for reversal that GEA urges on us, in its briefs at least, is unrelated to fears, quixotic or otherwise, of the stat ute of limitations. The ground is that Khan will convey the fruits of his discovery to Flex N Gate for use against GEA in the do over arbitration proceeding. But that is not a proper concern of the district court, or of this court. It is the concern of the foreign arbitrators and the foreign courts. Should Flex N Gate try to inject evidence into the arbitration from dis covery conducted by Khan in the district court suit, GEA can object and the arbitrators will decide. What business is it of an American court? It was GEA that invoked German arbi tration. By doing so, it subjected its claim of breach of con tract to the German arbitrators and judiciary. If the arbitra tors allow the fruits of Khan s discovery into the arbitration, and in doing that they are violating German law, there is al ways the Higher Regional Court in Frankfurt, and, if neces sary, the Federal Court of Justice, for GEA to appeal to. GEA insists that the stay of all proceedings in the present suit (that is, a stay with no exception to allow discovery by 14 Nos. 13 2135, 13 2594 Khan) is required by our decision in Volkswagen of America, Inc. v. SUD s of Peoria, Inc., 474 F.3d 966, 972 74 (7th Cir. 2007). That decision holds that a district court should stay an entire suit pending arbitration if there is a serious danger (should it fail to do so) of inconsistent rulings or needless duplication of effort. To the same effect see, e.g., IDS Life Ins. Co. v. SunAmerica, Inc., supra, 103 F.3d at 529 30; AgGrow Oils, L.L.C. v. National Union Fire Ins. Co. of Pittsburgh, 242 F.3d 777, 782 n. 5 (8th Cir. 2001). But the danger is slight in this case certainly as long as the only activity in the district court is discovery conducted by Khan. That discovery may, it is true, result in evidence that Flex N Gate may want to use in the German arbitration proceeding. But if so, whether it will be permitted to do that will depend entirely on Ger man law and practice. We have no authority over German arbitration or the German judiciary. If German arbitrators or judges decide they will, or will not, consider evidence gen erated in an American litigation, specifically from discovery conducted by Khan, then that will be final. Similarly, in the unlikely event that the district court proceeding continues after discovery is complete and results in the issuance of a final judgment before the German arbitration, and any Ger man litigation arising from it, conclude, it will be the busi ness of the German court and arbitrators whether to give col lateral estoppel effect to that judgment. GEA consented to (no doubt took the lead in suggesting, as it is a Germany company) German arbitration. It can t rescind that consent by suing in an American court, or by asking the American court to enjoin the introduction in German proceedings of evidence obtained in the American case. There is still another wrinkle to this appeal. As noted in passing earlier in this opinion, GEA s suit against Khan is Nos. 13 2135, 13 2594 15 not only about problems GEA may encounter in collecting an arbitration award against Flex N Gate, should it obtain such an award. GEA also charges Khan with having induced the contract by fraud. Since fraud is a tort, GEA is entitled to make it the subject of a lawsuit. But it is a serious charge and Khan is entitled to defend himself against it, which he can t do, it appears, without being able to conduct discovery. Dis covery may yield evidence germane to the arbitration as well, but if so and, more to the point, if it yields evidence favorable to Flex N Gate that is a consequence that GEA will have brought upon itself by its decision to sue Khan. You cannot sue someone and prevent him from defending himself. And GEA must have known that Flex N Gate could have asked the district judge to provide evidence to a foreign or international tribunal, as district judges are authorized to do by 28 U.S.C. § 1782; see, e.g., Heraeus Kulzer, GmbH v. Bi omet, Inc., 633 F.3d 591, 593 (7th Cir. 2011). The German pan el conducting the arbitration between GEA and Flex N Gate might be considered such a tribunal. See Consorcio Ecuatori ano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 997 98 (11th Cir. 2012). (Or might not the ap plicability of section 1782 to evidence sought for use in a for eign arbitration proceeding is uncertain. See S.I. Strong, Discovery Under 28 U.S.C. §1782: Distinguishing Interna tional Commercial Arbitration and International Investment Arbitration, 1 Stan. J. Complex Litig. 295 (2013).) That completes our discussion of the appeal but we have yet to consider the motion to seal certain documents that is, to prevent public access to them. The parties have agreed in asking us to seal certain documents that have been intro 16 Nos. 13 2135, 13 2594 duced in the arbitration proceeding. Their agreement is not binding on us. Secrecy in judicial proceedings is disfavored, as it makes it difficult for the public (including the bar) to understand why a case was brought (and fought) and what exactly was at stake in it and was the outcome proper. The interest in allowing public access to the judicial record is thus a social interest rather than a concern solely of the liti gants. That is why their agreement to seal does not bind us, and, more broadly, why documents that affect the disposi tion of federal litigation are presumptively open to public view. In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); see Baxter Int l, Inc. v. Abbott Laboratories, 297 F.3d 544, 545 (7th Cir. 2002); LEAP Systems, Inc. v. MoneyTrax, Inc., 638 F.3d 216, 220 (3d Cir. 2011); Goesel v. Boley Int l (H.K.) Ltd., Nos. 13 2434, 2818, 2013 WL 6800977, at *1 2 (7th Cir. Dec. 26, 2013) (chambers opinion). But the presumption can be overridden by competing in terests, as in cases involving trade secrets arguably in some cases involving settlement agreements uncontroversially in most cases in which the plaintiff is a child victim of sexual abuse. It s overridden in this case as well, for the simple rea son (related to our earlier discussion of the difference it may make that this case involves foreign arbitration) that parties to a German arbitration may not disclose evidence presented in the arbitration. DIS Arbitration Rules, supra, § 43.1. That may be a good rule or a bad rule, but it is a rule that United States courts should respect as a matter of comity, see, e.g., United States v. Kashamu, 656 F.3d 679, 683 (7th Cir. 2011) the respect that independent sovereigns owe one another and also because we [Americans] are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. Loucks v. Standard Oil Co., Nos. 13 2135, 13 2594 17 120 N.E. 198, 201 (N.Y. 1918) (Cardozo, J.). It was lawful for the parties to agree to arbitrate their dispute in Germany, and we have no authority to rewrite the rules of German ar bitration. And so the motion to seal is granted, while for the rea sons stated earlier the order of the district court partially lift ing the stay of discovery is affirmed.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.