IN RE: PRICEWATERHOUSECOOPERS (2024)

Order, Supreme Court, New York County (Margaret Chan, J.), entered April 8, 2022, which denied respondent's motion to vacate prior orders, inter alia, granting petitioner's motion to compel arbitration, unanimously affirmed, with costs.  Order, same court and Justice, entered April 12, 2022, which granted petitioner's motion to seal certain portions of its agreement with respondent, unanimously affirmed, with costs.

Respondent contends that petitioner committed a fraud on the motion court and this Court under CPLR 5015(a)(3), because it did not submit the parties' full agreement on the original motion to compel arbitration, but only quoted a portion of the arbitration provision.  However, petitioner stated as much to the court, and offered to provide a full copy to the court.  Respondent had the full document, but neither submitted it nor made specific arguments as to which other portions were relevant.  Given that the parties and the court expressly understood the situation, there was no deception and no fraud.

Moreover, the issue of whether the necessary documents were made available to determine the motion to compel was resolved against respondent in this Court's prior order (see Matter of PricewaterhouseCoopers, LLP v. Cahill, 205 A.D.3d 463, 165 N.Y.S.3d 696 [1st Dept. 2022], lv. denied 39 N.Y.3d 906, 2023 WL 105449 [2023]).  As such, the argument is barred by the doctrine of law of the case (see Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012]).

Respondent's argument, made for the first time on appeal, that because he was fraudulently induced to enter into the subject agreement, the agreement's mandatory forum selection clause is void and thus the court lacks personal jurisdiction over him, is unavailing.  Respondent fails to allege how the forum selection clause itself was induced by fraud, as opposed to the agreement as a whole (see Braverman v. Yelp, Inc., 128 A.D.3d 568, 10 N.Y.S.3d 203 [1st Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5148828 [2015]).

The court providently allowed redactions to the agreement.  Uniform Rules for Trial Courts (22 NYCRR) § 216.1 leaves the balancing of private and public interest in sealing to the court's discretion (see Applehead Pictures LLC v. Perelman, 80 A.D.3d 181, 191–192, 913 N.Y.S.2d 165 [1st Dept. 2010]).  Petitioner's motion was supported by an affidavit that explained for each of the redacted portions how that portion of the agreement was competitively sensitive.  At the same time, the provision that was material to determining the motion to compel, i.e. the arbitration provision, was not redacted. We have considered respondent's remaining arguments and find them unavailing.