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In a recent newspaper column, the deservedly well-respected Mr. Floyd Norris observed that he found "some documents have been filed under seal, with only edited portions released to the public," in litigation involving Bad Faith claims and causes of action alleged against MBIA. Floyd Norris, "High & Low Finance/Equality at Issue For MBIA" p. B1, col. 1 (New York Times Nat'l ed., "Business Day" Section, Friday, February 19, 2010).
The author has found a Class Action Lawsuit filed against MBIA in the United States District Court for the Southern District of New York, which is apparently one of the lawsuits reviewed by Mr. Norris. The author has not found any Court Order requiring any document filed in that lawsuit to be filed under seal, in whole or in part. Here is the Class Action Complaint in which a Bad Faith Claim, among others, is alleged against MBIA: Download Aurelius Capital v. MBIA.Complaint (S.D.N.Y. Case No. 1:09.cv.2242, Filed March 11, 2009). Parenthetically, the United States District Judge recently issued an Order in that case Denying MBIA's Motion to Dismiss and Declining to Abstain: Download Aurelius Capital v. MBIA.Order Denying Motion to Dismiss and Declining to Abstain (S.D.N.Y. Case No. 1:09.cv.2242, Opinion Filed February 11, 2010). But apparently no Order was entered requiring anything to be filed under seal.
The author has also searched online through the New York State Courts web site, without success, for another, similar lawsuit filed against MBIA and referenced by Mr. Norris. Another excellent and informative report on that lawsuit is by Patricia Hurtado, "MBIA Loses Bid to Toss Bank of America 'Split' Suit (Update 3)" (Bloomberg.com, Wednesday, February 17, 2010).
Even if a Court Order was entered in either case requiring any documents or parts of documents to be filed under seal, the interests of the public in having access to information concerning Good Faith and Fair Dealing and in preventing future harm to members of the public should have been taken into account. See Fla. Stat. ยง 69.081(4)(2009):
(4) Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard, is void, contrary to public policy, and may not be enforced.
In the absence of a valid Court Order requiring anything to be filed under seal, then keeping information from the public is a misguided, wrong decision at its best, and reprehensible at its worst.
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