Plaintiff Oliver Wyman, Inc. brings this action against its former employees-John Eielson and Alastair Adam-alleging fraud and breach of contract in connection with Oliver Wyman's acquisition of Defendants' consulting business in 2014. For their part, Defendants bring a variety of counterclaims alleging, in essence, that Oliver Wyman fraudulently induced them to sell their business.
Now before the Court are (1) Defendants' motion for summary judgment as to *689Oliver Wyman's remaining breach of contract claims (Doc, No. 81), (2) Oliver Wyman's motion for summary judgment as to Defendants' counterclaims (Doc. No. 76), and (3) assorted motions to seal portions of the briefs and submissions filed in connection with the summary judgment motions (Doc. Nos. 83, 91, 105, 115). For the reasons set forth below, Defendants' motion is denied, Oliver Wyman's motion is granted in part and denied in part, and the sealing motions are granted, with minor exceptions.
I. BACKGROUND
A. Facts
Defendants co-founded and served as co-CEOs of OCC Boston, a "boutique strategy consulting firm" specializing in "the information services sector."
Throughout the discussions, Oliver Wyman representatives expressed confidence that Oliver Wyman "was a strong platform to support the growth of the OCC Boston business." (Id. ¶ 17.) As the negotiations moved forward, Defendants sought information concerning Oliver Wyman's compensation system, average flow-through rate
Defendants were disappointed by the information contained in the October 9 documents, particularly as to Oliver Wyman's relatively higher compensation rates for its non-partner employees and its deferred bonus program. (Id. ¶¶ 21, 23-25.) Defendants also believed that Oliver Wyman was deliberately avoiding questions about CIVT's and CMT's comparative profitability and that this indicated Oliver Wyman was not as strong a firm as Defendants had believed. (Id. ¶ 22.) In response to these concerns, Oliver Wyman agreed that Defendants and the other OCC Boston Partners would not be subject to the deferred bonus program for their first two years at Oliver Wyman. (Id. ¶ 25.) Over the next several weeks, Oliver Wyman representatives reached out to Defendants to assuage their concerns about the moneymaking potential at Oliver Wyman. (Id. ; Def. Counter 56.1 ¶¶ 22-24, 26.)
Despite their misgivings, Defendants ultimately decided to move forward with the sale of OCC Boston to Oliver Wyman for $16.5 million, and, on October 29, 2014, the two firms entered into an Asset Purchase Agreement ("APA") with a closing date of December 2, 2014. (Pl. 56.1 ¶¶ 27, 33; Def. 56.1 ¶ 7; see also Doc. No. 89, Ex. A.) As part of the acquisition, both Defendants executed identical employment agreements, which provided that Defendants would work at Oliver Wyman for four years at an annual salary, before bonuses, of $425,000. (Pl. 56.1 ¶ 28; see also Doc. No. 89, Exs. C, D.) Defendants also executed identical non-solicitation agreements that prohibited them from (1) soliciting Oliver Wyman clients and prospective clients and (2) causing any employee with whom they worked at the firm to separate from Oliver Wyman. (Pl. 56.1 ¶ 28; Def. 56.1 ¶ 10; see also Doc. No. 89, Exs. C at 12, D at 12.)
Soon after the closing in December 2014, Defendants began working at Oliver Wyman's Boston office. Almost immediately, however, Defendants' compensation concerns resurfaced. (Pl. 56.1 ¶ 34.) As Defendants feared, the conversion of OCC Boston projects to Oliver Wyman's compensation structure resulted in reduced profits for partners like Defendants. (Id. ¶¶ 34, 35.) Although Oliver Wyman eventually took steps to reduce the shortfall experienced by former OCC Boston partners, Defendants remained unhappy with their compensation at Oliver Wyman. (Id. ¶¶ 36-38.)
By late December 2014, Eielson was already convinced that the sale of OCC Boston had been a mistake and that he wanted to leave Oliver Wyman. (Pl. Counter 56.1 ¶ 40.) On January 25, 2015, Eielson emailed Adam that he was not sure he would "make it to June" and that the situation at Oliver Wyman reminded him of a previous time Defendants had left an employer. (Id. ¶ 20.) Adam responded that he thought it would take him "until spring to figure out plan b," but that he did not "think about much else these days." (Id. ; Doc. No. 97, Ex. E.) And, in a February 19, 2015 email to his wife, Eielson wrote *691that he did not "really work anymore." (Pl. Counter 56.1 ¶ 20.) In March 2015, Oliver Wyman promoted Adam to be North American geo-coordinator of CIVT and planned to promote Eielson to head the firm's private equity practice. (Def. 56.1 ¶¶ 24, 25.) Nevertheless, Defendants' enthusiasm for the Oliver Wyman merger continued to diminish. Indeed, Defendants' billable hours declined each month they were employed, with neither billing any time to clients whatsoever in the month of April. (Id. )
That same month, Eielson learned of an opportunity to acquire an information services company. (Def. 56.1 ¶ 29.) Soon thereafter, Eielson informed Adam about the opportunity, sought his advice, and expressed his desire to leave Oliver Wyman to pursue the new venture. (Id. ¶¶ 29, 30.) In response, Adam also expressed a desire to leave the firm, and on April 21, 2016, Defendants announced their resignations from Oliver Wyman. In a May 2, 2015 email, sent after Defendants tendered their resignations but before they left the firm, Eielson wrote to Adam that they needed to be careful about how they characterized their resignations and "stick to the party line." (Pl. Counter 56.1 ¶ 42.) On May 8, 2015, they both left the firm to pursue, together, the opportunity previously identified by Eielson. (Pl. 56.1 ¶ 38; Def. 56.1 ¶¶ 31, 33, 35.) While Defendants "vigorously pursued" the acquisition opportunity, it ultimately did not materialize. (Def. 56.1 ¶ 36.) Since leaving Oliver Wyman, neither Defendant has attempted to return to the consulting business to compete with their former employer. (Id. ¶ 37.)
B. Procedural History
On June 16, 2015, Oliver Wyman commenced suit against Defendants. Although the action was originally filed in New York State Supreme Court, New York County (Doc. No. 1; Pl. 56.1 ¶ 1; Def. 56.1 ¶¶ 1-3), Defendants removed the action to this Court on July 9, 2015, pursuant to
On July 14, 2015, Oliver Wyman filed its first amended complaint, alleging claims for fraudulent inducement, fraud, breach of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, tortious interference with contractual and business relationships, breach of the implied covenant of good faith and fair dealing, violation of Chapter 93A of the Massachusetts General Laws, and unjust enrichment. (Doc. No. 8.) Defendants moved to dismiss the complaint, and, on September 22, 2016, the Court granted the motion in substantial part, leaving only Oliver Wyman's breach of contract claims under the employment agreements and non-solicitation agreements. (Doc. No. 60.) See also Oliver Wyman, Inc. v. Eielson , No. 15-cv-5305 (RJS),
On March 17, 2016, Defendants answered the first amended complaint, asserting counterclaims for fraud, fraudulent inducement, negligent misrepresentation, deceit, and violation of Chapter 93A of the Massachusetts General Laws. (Doc. Nos. 37, 73.) Oliver Wyman answered Defendants' counterclaims on May 6, 2016. (Doc. No. 58.) Discovery concluded on June 20, 2016, and on December 16, 2016, the parties both moved for summary judgment as to their opponents' claims. (Doc. Nos. 76, 81.) The motions were fully briefed on February 3, 2017. (Doc. Nos. 111, 112.)
II. SUMMARY JUDGMENT
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is *692entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is "no genuine dispute as to any material fact" where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable factfinder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. ,
In determining whether a fact is genuinely disputed, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst ,
A. Defendants' Motion
Defendants move for summary judgment on Oliver Wyman's remaining breach of contract claims, arguing that (1) Oliver Wyman failed to establish that Eielson breached the non-solicitation agreement, (2) the non-solicitation agreement is unenforceable as a matter of public policy, (3) Oliver Wyman failed to establish that Defendants acted in bad faith under the employment agreements, and that, in any event, (4) Oliver Wyman's failure to comply with the notice-and-cure provision of the agreement defeats its claim of breach. The Court will address each of these arguments in turn.
1. Breach of Non-Solicitation Agreement
Section 2 of Eielson's non-solicitation agreement reads:
Employee acknowledges and agrees that, solely as a result of employment by the Company, and in light of the broad responsibilities of such employment, which include working with other employees of the Company, Employee has and will come into contact with and acquire Confidential Information regarding the Company's other employees. Accordingly, both during employment by the Company and for a period of twelve (12) months thereafter, Employee shall not , either on Employee's own account or on behalf of any person, company, corporation, or other entity, directly or indirectly, solicit or endeavor to cause any employee of the Company with whom Employee, during the last two (2) years of Employee's employment with *693the Company, came into contact for the purpose of selling or providing Consulting Services or soliciting Clients and Prospects for the purpose of selling or providing Consulting Services, or about whom Employee obtained Confidential Information, to separate from employment by the Company.
(Doc. No 89, Ex. C at 12 § 2 (emphasis added).) In short, this clause barred Eielson from soliciting Oliver Wyman co-workers-including his longtime partner, Adam-to leave the firm for alternative business opportunities, whether for his own benefit or for the benefit of another person or entity.
In support of its position that Eielson breached this clause, Oliver Wyman offers several pieces of evidence. First, as noted above, email traffic between Eielson and Adam reveals that the two men discussed leaving Oliver Wyman as early as January 2015. (Pl. Counter 56.1 ¶ 31.) Furthermore, when Eielson learned of the investment opportunity, he brought it to Adam's attention and they "talk[ed] through [the] pros and cons" of leaving Oliver Wyman. (Id. ¶¶ 29, 30.) They also talked about the potential structure and name for the fund they would use to acquire the target business. (Id. ¶ 30.) And, of course, Defendants resigned from Oliver Wyman on the same day-April 21, 2015-to pursue the acquisition opportunity. (Id. ¶ 33, Pl. 56.1 ¶ 36.) Emails between Defendants indicate their desire for secrecy and their efforts to coordinate what they would say about their departure. (Pl. Counter 56.1 ¶ 42.)
For his part, Defendants argue that Eielson encouraged Adam to remain at Oliver Wyman because of the riskiness of the acquisition opportunity. (Def. 56.1 ¶ 32.) Additionally, Defendants note that Adam was already deeply unhappy at Oliver Wyman and that he required no encouragement from Eielson to leave the firm. (Id. ¶ 31; Pl. Mem. 13.) At bottom, Defendants argue that all Oliver Wyman can point to in support of its solicitation argument is that Adam and Eielson both resigned on the same day and left to pursue the same opportunity. Based on the record before it, the Court has little difficulty concluding that there is a dispute of material fact as to whether Eielson solicited Adam to leave Oliver Wyman.
A closer question, however, is whether the non-recruitment clause in question is enforceable under New York law.
*694Reed Elsevier Inc. v. Transunion Holding Co. , No. 13-cv-8739 (PKC),
As to the first BDO Seidman factor, courts require the showing of both a legitimate interest of the employer and that the clause is no more expansive than necessary to further that interest. "New York courts have recognized four legitimate interests that may be asserted to support a restrictive covenant: (1) protection of trade secrets, (2) protection of confidential customer information, (3) protection of the employer's client base, and (4) protection against irreparable harm where the employee's services are unique or extraordinary." Reed Elsevier Inc. ,
Oliver Wyman offers two interests underpinning the non-recruitment clause at issue here-the need to retain the services of unique employees like Defendants, who are leaders of their practice groups, and the need to protect its client base. Of course, these two interests are interrelated, and Oliver Wyman offers an expert witness declaration to support its position that client relationships are important and unique in consulting, and that the loss of a consultant with strong client relationships can dramatically undercut a consultancy's business. (See Doc. No. 97, Ex. A ¶¶ 26, 27, 32.) Indeed, like many service-oriented businesses, Oliver Wyman depends on client relationships for its success. Defendants do not dispute that assertion, but they counter that restrictive employment covenants exist only to protect an employer against competition from a former employee. (Def. Mem. 15-17.) As Defendants see it, the clause cannot be enforced against them because Defendants have not competed against Oliver Wyman since resigning from the firm and because the alleged recruitment attempt by Eielson involved an opportunity in an unrelated business sector. But even without direct competition, the recruitment of Oliver Wyman employees could result in harm to legitimate interests under New York law. As Oliver Wyman's expert states, the departure of a respected consultant can start a chain reaction of client dissatisfaction, harming the firm's valid interest in protecting its client base. This could be true whether the consultant left to join a competitor or merely to pursue a different life activity. Either way, Oliver Wyman would still be at risk of losing valuable clients and business as a result of Adam's Eielson-influenced departure. And so the Court concludes that Oliver Wyman has legitimate interests that support the enforceability of the non-recruitment clause.
*695Nonetheless, while Oliver Wyman has a valid interest in restricting the ability of its employees to encourage fellow employees to separate from the company, the Court must still consider whether the restrictive covenant here is "greater than is required" for the advancement of that interest. There can be no doubt that the non-recruitment clause here is quite broad, as it expressly prohibits Defendants from "solicit[ing] or endeavor[ing] to cause any employee ... to separate from employment by the Company." Taken to its extremes, this provision could be read to bar even the most innocuous conversations between coworkers regarding professional and personal advice. For example, one can easily imagine scenarios in which an employee might seek advice from a co-worker concerning a job opportunity, headhunter call, or contemplated life change that would inevitably result in separation from the firm-perhaps to become a full-time parent, go back to school for a degree, pursue a career in the arts or a religious vocation, or some other radical career change. A non-recruitment policy that would compel silence in such circumstances would certainly be overly broad, impose undue hardship on the co-worker, and be injurious to the public.
Fortunately, the non-recruitment clause here contains additional language that appears to limit the provision's scope to situations where the solicitor or encourager is doing so on his "own account or on behalf of any person, company, corporation, or other entity." This limitation would seem to indicate that the clause is intended to have a narrower scope and only prevents the poaching of co-workers for actual, available employment opportunities in which the solicitor has an interest. Such an interpretation is in keeping with longstanding principles of contract interpretation requiring courts to give effect to every term and avoiding rendering contractual language superfluous. See, e.g. , LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp. ,
Thus narrowed, the non-recruitment clause is able to meet the standards of the BDO Seidman test. In addition to being no greater than required to protect the legitimate interests of the employer, it imposes no undue hardship on Eielson-a highly compensated individual who received a share of the $16.5 million purchase price of OCC Boston and $425,000 in annual salary before bonuses. And, unlike a non-compete clause, the non-recruitment clause imposes no limitations on the work Eielson can perform-it only limits his ability to recruit others from Oliver Wyman to join him. Accord Renaissance Nutrition, Inc. v. Jarrett , No. 08-cv-800S,
Given the Court's finding that the non-recruitment clause here is enforceable, factual issues clearly remain as to whether Eielson actually breached that provision. As noted above, Eielson insists that he actually encouraged Adam to remain at Oliver Wyman and that the emails cited by Plaintiff are taken out of context and fail to reflect that Adam had decided to leave the firm long before Eielson shared his news about the possibility of acquiring an information-services company. Nevertheless, the timing of Defendants' departure, combined with the email correspondence between the two men, supports a compelling inference that Eielson did in fact encourage Adam to leave the firm to work with him on a new commercial venture. It is for the jury to decide which version of events is worthy of belief, rendering summary judgment inappropriate here.
2. Breach of Employment Agreements
Oliver Wyman also alleges that, from the beginning of their employment at Oliver Wyman, Defendants were committed to leaving the firm and hardly worked, thereby breaching the "best efforts" clause of their employment agreements. Defendants argue that Oliver Wyman has presented no evidence of a breach, and, in any case, they are absolved of liability for any breach because Oliver Wyman failed to provide the requisite advance notice that their performance was deficient.
Defendants' employment agreements provide that they must "perform and discharge" their positions "in good faith." (Doc. No. 89, Exs. C, D § 2; see also Def. 56.1 ¶ 11.) In addition, subject to certain exceptions, Defendants agreed to "devote substantially all of [their] professional time, attention and energies to the business of Oliver Wyman." (Doc. No. 89, Exs. C, D § 7(a); see also Def. 56.1 ¶ 11.)
Clearly, there is a dispute of material fact about whether Defendants acted in good faith and devoted substantially all of their time to their new business. On the one hand, Defendants argue that they were either promoted or promised promotions, indicating strong performance. (Def. 56.1 ¶¶ 24, 25.) On the other hand, Oliver Wyman has submitted evidence that neither Eielson nor Adam had sufficient client hours for any month of their employment, that both Defendants' billable hours declined each month they spent at Oliver Wyman, and that neither billed any hours to clients at all in the entire month of April. (Pl. Counter 56.1 ¶ 20.) The parties further dispute whether Defendants had high or low "utilization" statistics compared to their co-workers. (Compare Def. 56.1 ¶¶ 26, 27, with Pl. Counter 56.1 ¶¶ 26, 27.)
Oliver Wyman has also submitted evidence, including statements made by Defendants in emails, that could be read to indicate that they were planning their exit from Oliver Wyman before they even started at the firm. For example, Eielson realized in December 2014 that the sale of OCC Boston was a "mistake," and he considered leaving Oliver Wyman at this time. (Doc. No. 97, Ex. H, 215:9-217:16.) Furthermore, a January 2015 email exchange-in which Eielson told Adam that he may not "make it to June," and Adam *697replied that he thought it would take him "until spring to figure out plan b" but that he did not "think about much else these days" (Doc. No. 97, Ex. E)-reflects Defendants' nascent plans to leave the firm even as they were tasked with running important practice groups there. And in February 2015, Eielson emailed his wife: "I don't really work anymore." (Id. , Ex. F.) As a result, there appears to be ample evidence supporting Oliver Wyman's claim that Defendants failed to provide their "best efforts" as required by the employment agreements.
Defendants argue, however, that even if they breached the employment agreements, those breaches are excused, and Oliver Wyman's breach of contract claim fails as a matter of law, because Oliver Wyman did not comply with the agreements' notice-and-cure provision. That provision requires Oliver Wyman to provide "prompt written notice" "specifying in reasonable detail the conduct or act constituting such violation" and an opportunity to cure. (Doc. No. 89, Ex. C § 7(b).) There is no dispute that Oliver Wyman provided any such notice to Defendants prior to their departure in April 2015, and that Defendants were therefore not given an opportunity to cure the violation. Under New York law, a breach of contract claim requires proof of (1) an agreement, (2) adequate performance by the plaintiff (3) breach by the defendant, and (4) damages. Fischer v. Mandell LLP v. Citibank, N.A. ,
But as the Court previously stated in its September 22, 2016 opinion:
[W]hile it is true that a party generally may not recover under a contract if it has failed to fulfill a condition precedent, such as a notice-and-cure provision, see Unloading Corp. v. State of New York ,, 543 [ 132 A.D.2d 543 ] (2d Dep't 1987), "New York common law will not require strict compliance with a contractual notice-and-cure provision if providing an opportunity to cure would be useless," Giuffre Hyundai, Ltd. v. Hyundai Motor Am. , 517 N.Y.S.2d 276 , 209 (2d Cir. 2014). 756 F.3d 204
Oliver Wyman ,
The Court concludes that there is a genuine dispute of fact as to whether notice would have been futile, thereby absolving Oliver Wyman from complying with the notice-and-cure clause. The question of whether Oliver Wyman adequately performed under the contract is thus a fact-intensive determination that must be made by the jury. Accord Sea Tow Servs. Int'l, Inc. v. Pontin ,
B. Oliver Wyman's Motion
Defendants assert counterclaims for fraud, fraudulent inducement, negligent misrepresentation, deceit, and violation of Chapter 93A of the Massachusetts General Laws based on Oliver Wyman's allegedly false statements regarding (1) Oliver Wyman's flow-through rate, (2) Oliver Wyman's partner-compensation figures, and (3) the general strength of the CIVT and CMT platforms. In moving for summary *698judgment, Oliver Wyman argues that those statements are non-actionable as a matter of law because they are opinion, true, and/or were not relied upon by Defendants. The Court will address each argument in turn.
1. Fraud, Fraudulent Inducement, and Deceit
Defendants' counterclaims for fraud, fraudulent inducement, and deceit involve either identical or nearly identical elements, so the Court considers them together.
Under Massachusetts law,
A representation is material where "a reasonable man would attach importance [to it] in determining his choice of action in the transaction in question." Zimmerman v. Kent ,
Finally, a plaintiff-actually Defendants on the counterclaims here-must *699have relied on the misstatement in question and that reliance must have been reasonable. See Masingill v. EMC Corp. ,
a. Statements Concerning Flow-Through Rates
Defendants assert that Oliver Wyman committed fraud in its statements concerning historical flow-through rates. Specifically, Defendants claim that Oliver Wyman agents consistently represented a 30% flow-through figure as the "benchmark" rate that Defendants could expect to realize as Oliver Wyman partners. (Def. Counter 56.1 ¶¶ 12, 22-24.) Oliver Wyman disputes this point, claiming that its representatives quoted only a backward-looking figure and gave an average rate of 30% and a general range of 20-40%. (Pl. 56.1 ¶¶ 11-14, 16.) In any case, Oliver Wyman argues that even accepting Defendants' version of the facts, any statements concerning the flow-through rates are non-actionable predictions and/or true.
With respect to Oliver Wyman's first argument-that flow-through rate representations were non-actionable predictions that cannot give rise to tort claims-it bears noting, as a preliminary matter, that any alleged statements by Oliver Wyman representatives concerning historical flow-through rates would, by definition, not be predictions, but rather statements of past facts, which are actionable if materially false, see Zimmerman ,
Here, the evidence in the record bears out that the overall flow-through rates at Oliver Wyman were in line with the 30% average and 20-40% range numbers provided to Defendants. (See Pl. 56.1 ¶ 20; Doc. Nos. 79, Ex. N; 80 ("First Cunningham Decl."), Ex. 1.) Defendants offer no evidence to rebut the flow-through numbers regarding the firm as a whole. Accordingly, the undisputed facts in the record reflect that Oliver Wyman's statements regarding past flow-through rates were accurate and thus cannot serve as the basis for a fraud claim. See Amorim Holding Financeria, S.G.P.S., S.A. v. C.P. Baker & Co. Ltd. ,
Defendants nevertheless argue that Oliver Wyman's employees made false statements when they characterized CIVT's flow-through rate as "fairly similar" to that of the firm as a whole, when in fact they were in the range of 24-27%. However, in their Rule 56.1 statements, the parties agree that Oliver Wyman never made any specific representations regarding CIVT's flow-through rate. Rather, Oliver Wyman represented that CIVT's overall compensation, not flow-through rate, was "fairly similar" to the firm average. (Def. Counter 56.1 ¶¶ 10, 11.) Therefore, Defendants have *700also failed to demonstrate falsity with respect to these statements.
Finally, Defendants argue that Oliver Wyman's representatives repeatedly touted 30% as the "benchmark" for what Defendants could expect to realize at CIVT, even though those representatives possessed information that was "incompatible with" that estimate. McEneaney ,
b. Statements Concerning Partner Compensation
Similar to their arguments concerning flow-through rates, Defendants also aver that Oliver Wyman made material misstatements concerning the firm's average historical partner compensation. Essentially, Defendants claim that Oliver Wyman falsely represented that average partner compensation was $1.1 million and that CIVT partner compensation was "fairly similar" to the firm-wide average. (Def. Counter 56.1 ¶ 11.) For its part, Oliver Wyman acknowledges that it represented average partner compensation as "around $1 million." (Pl. 56.1 ¶ 11.) Oliver Wyman nevertheless argues that the statements were (1) non-actionable estimates, (2) true, (3) too indefinite to rely upon, and/or (4) supplanted by the explicit terms of the employment agreements. The Court disagrees.
First, Oliver Wyman's representation that average partner compensation was "around $1 million" is not an estimate of forward-looking results, but rather an approximation of historical performance, which is a statement of fact. Cf. Hallmark Inst. of Photography ,
Second, although Oliver Wyman has presented evidence suggesting that the $1 million per-partner average compensation figure was accurate both firm-wide *701and within CIVT (see Pl. 56.1 ¶¶ 18, 19), there appears to be a material dispute of fact on this issue since Defendants have submitted evidence indicating that the actual average compensation rates were measurably lower (see, e.g. , Doc. No. 79, Ex. 10; Doc. No. 102, Ex. Y). And even taking Oliver Wyman's numbers at face value, the records show that there were some years where the average compensation was lower than represented to Defendants. For example, according to Oliver Wyman's data, the average compensation paid to Oliver Wyman and CIVT partners in 2013-the year immediately preceding the OCC Boston acquisition-was [redacted] and [redacted] respectively. (Pl. 56.1 ¶¶ 18, 19.) Whether these figures are "fairly similar to" $1 million, or whether the $1 million statement was designed to obscure the more recent trend of lower compensation is for a jury to decide.
Oliver Wyman next argues that its compensation formula was being "reworked" at the time of the statements in question and that the average compensation numbers cited were therefore too indefinite to spur reliance. This argument must also be rejected. While Oliver Wyman's firmwide compensation formula may have changed over time, there is no evidence to suggest that such modifications would result in fundamental changes to the compensation Oliver Wyman partners brought home every year. The situation here is a far cry from other cases cited by Oliver Wyman in which extremely ambiguous and incomplete representations were found to be too indefinite to justify reliance. See, e.g. , Armstrong ,
Finally, Oliver Wyman argues that Defendants cannot demonstrate reasonable reliance on Oliver Wyman's statements regarding average compensation because those statements were superseded by the explicit terms of Defendants' employment agreements. As noted above, both Defendants signed contracts providing for an annual base salary of $425,000 "subject to upward adjustment at the sole discretion of Oliver Wyman pursuant to Oliver Wyman's compensation practices." (Doc. No. 89, Exs. C § 3(a), D § 3(a); see also Pl. 56.1 ¶ 29.) Accordingly, Oliver Wyman asserts that it is objectively unreasonable for Defendants to have relied on the average partner compensation previously quoted by Oliver Wyman partners since their agreements themselves provide for a salary far below the approximately $1 million figure. See Masingill ,
But while it is true that Massachusetts law precludes fraud claims where alleged misstatements are explicitly contradicted by subsequently adopted written agreements, see, e.g. , HSBC Realty Credit Corp. (USA) v. O'Neill ,
Accordingly, because disputes of material fact exist as to whether Oliver Wyman's statements concerning average partner compensation were materially false and whether Defendant's reliance upon them was reasonable, summary judgment is not appropriate for these claims.
c. Statements Regarding the Strength of the Platform
Finally, Defendants argue they were defrauded by a third class of misrepresentations: statements regarding the strength of Oliver Wyman's "platform" as a vehicle to absorb and grow the OCC Boston business. Oliver Wyman representatives allegedly told Defendants "that Oliver Wyman would provide a strong platform with multiple synergies for [their] business." (Doc. No. 79, Ex. 3 at 305:15-23.) Defendants argue that these statements, which painted "a rosy picture about the strength of the platform and the earning potential" (id. at 196:23-24), were demonstrably false, since Oliver Wyman's own internal communications, made both before and after the acquisition of OCC Boston, reveal that CIVT was in "[redacted]" and that CMT was "[redacted] at the time of the transaction (Def. Opp'n 16-17). Defendants also point to evidence indicating that Oliver Wyman was aware that these groups had profitability and morale issues and that they might not have been strong platforms to support the growth of OCC Boston's business. (See, e.g. , Doc. No. 102, Exs. T, U.)
Whatever the misgivings expressed internally at Oliver Wyman about CIVT and CMT, the Court finds that the alleged misstatements here are not actionable. "When a company makes a 'kind of general, rosy affirmation,' these statements are puffery and 'cannot have been material to any reasonable analysis of the company's prospects.' " NPS, LLC v. Ambac Assur. Corp. ,
*703was too indefinite to support a fraud claim). The same can be said with respect to the statements contained in Oliver Wyman's internal communications. Terms like "[redacted]" and "[redacted]" are vague and imprecise colloquialisms that convey little more than opinion and largely defy measurement or proof. Defendants' counterclaim-which essentially alleges that Oliver Wyman's promise of a "strong platform with multiple synergies" must have been false since Oliver Wyman knew that CIVT was in "[redacted]" and was "[redacred]"-is almost comical when the actual words are considered. Whatever it means to provide a "strong platform" with "multiple synergies," it is not obviously incompatible with being "[redacted]" or "[redacted]." Accordingly, Oliver Wyman's statements concerning platform strength are not actionable, and summary judgment is appropriate as to the claims rooted in these statements.
2. Negligent Misrepresentation
Defendants also assert a counterclaim for negligent misrepresentation with respect to each of the misrepresentations alleged in their fraud claims.
To bring a claim for negligent misrepresentation, Defendants must show that Oliver Wyman "(1) in the course of [its] business, (2) supplie[d] false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the information, and (6) failure to exercise reasonable care or competence in obtaining or communicating the information." First Marblehead Corp. v. House ,
Here, as discussed above, Defendants have failed to offer any evidence demonstrating that Oliver Wyman's representations regarding the flow-through rate were false. See, e.g. , Marram v. Kobrick Offshore Fund, Ltd. ,
3. Chapter 93A Claim
Finally, Defendants assert a counterclaim for a violation of Chapter 93A of the Massachusetts General Laws. That chapter outlaws "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Mass. Gen. Laws ch. 93A, § 2. The statute provides a cause of action to "[a]ny person ... who suffers any loss of money or property ... as a result" of another person's engaging in such unfair activity.
*704As discussed above, Oliver Wyman's statements regarding average partner compensation can still support fraud, fraudulent inducement, deceit, and negligent misrepresentation claims at this juncture. Accordingly, because Oliver Wyman's actions could plausibly fall within "the penumbra of common law ... unfairness," Defendants' Chapter 93A claims based on these alleged misrepresentations also survive Oliver Wyman's summary judgment motion. See McEvoy Travel Bureau, Inc. v. Norton Co. ,
III. SEALING
In addition to the parties' cross motions for summary judgment, Oliver Wyman has filed four different motions to seal portions of: (1) its memorandum of law, Rule 56.1 statement, and certain exhibits attached to the declarations of Nicholas Pappas and Matthew Cunningham; (2) Defendants' memorandum of law in support of their motion for summary judgment and certain exhibits attached to the declaration of Matthew Ledley; (3) Defendants' memorandum of law in opposition to Oliver Wyman's motion for summary judgment, Defendants' Rule 56.1 counterstatement, Adam's affidavit, and certain exhibits attached to the declarations of Fletcher Strong and Nicholas Pappas; and (4) Oliver Wyman's reply memorandum in support of its motion for summary judgment. Defendants do not oppose these sealing motions. Nevertheless, in light of the presumption of open records that applies in federal civil cases, the Court must determine whether Oliver Wyman has adequately rebutted that presumption here. See Lugosch v. Pyramid Co. of Onondaga ,
Specifically, Oliver Wyman hopes to seal the following categories of information (with the relevant filings in parentheses):
1) The average Oliver Wyman partner compensation (Pl. Mem. 9, 10, 16; Pl. 56.1 ¶¶ 18, 19; Doc. No. 79, Exs. 10,5 11; Doc. No. 80, Ex. 1; Def. Opp'n 2, 13, 14, 19, 20; Doc. No. 100 at 10; Def. Counter 56.1 ¶ 18; Doc. No. 102, Exs. N, X, Y, Z; Pl. Reply 6, 7);
2) the payout rate and overall compensation paid to current and former Oliver Wyman partners (Doc. No. 79, Ex. 14; Def. Opp'n 15, 20; Doc. No. 102, Exs. B, Q, Z; Pl. Reply 3, 4);
3) internal assessments concerning the competitiveness of Oliver Wyman's practice groups (Def. Mem. 13; Doc. No. 89, Exs. K, L; Def. Opp'n 13, 16, 17, 24; Doc. No. 100 at 10; Doc. No. 102, Exs. A, T, U, X);
4) Oliver Wyman's investment-return payments to its parent company, Marsh & McClennan Companies ("Marsh") (Doc. No. 79, Exs. 6-9; Doc. No. 100, Ex. 1; Doc. No. 102, Exs. F, H, K, L, M, T, U);
5) the identities of Oliver Wyman clients and potential clients (Doc. No. 89, Exs. F, K, N, O; Doc. No. 97, Exs. A, C; Doc. No. 102, Exs. F, M, O, X, Y);
6) internal assessments concerning a non-party Oliver Wyman employee (Doc. No. 89, Ex. L; Doc. No. 102, Ex. I6 ); and *7057) internal cost structure data (Doc. No. 102, Ex. L).
The Second Circuit has articulated a three-step inquiry for determining whether documents submitted to a federal court may be sealed in contravention of the presumption of open access to "judicial documents." Lugosch ,
"The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action ...." DiRussa v. Dean Witter Reynolds Inc. ,
With respect to the first step of this analysis, the memoranda in question and their supporting declarations, affidavits, and exhibits are judicial documents because the Court has relied on them in deciding the parties' motions for summary judgment. See Lugosch ,
As for the second step, the weight of the presumption with regard to these documents ranges from low to high. For example, the weight of the presumption is quite high with regard to the memoranda of law submitted in support of, or in opposition to, the parties' summary judgment motions, as the Court examined and relied on these submissions in adjudicating these potentially dispositive motions. The weight of the presumption is similarly strong with regard to the Rule 56.1 statements, which were also relied upon to ascertain the disputes of material fact. The weight of the presumption is middling to high for the underlying exhibits which supported the assertions made by the parties regarding categories (1), (2), and (3). These exhibits were necessary for the Court to consider *706the character and truthfulness of Oliver Wyman's allegedly fraudulent assertions to Defendants in the months preceding the acquisition of OCC Boston. While the weight of the presumption with regard to these supporting exhibits may not be quite as high as with the memoranda of law and Rule 56.1 statements, the assertions included in those latter documents could not have been made, or trusted, without the evidentiary support provided by these exhibits. Finally, the weight of the presumption is low with regard to the exhibits Oliver Wyman seeks sealed for categories (4), (5), (6), and (7) because the information Oliver Wyman wants redacted is largely collateral to the factual and legal issues central to the resolution of these motions.
Having determined that all documents in question are judicial documents, as well as the varying weight of the presumption in favor of open records due to these documents, the Court next considers the third Lugosch factor-the balancing of competing considerations-for each class of proposed redactions.
With respect to the documents disclosing average and individual partner compensation and information sufficient to deduce partner compensation (including exact flow-through rates), Oliver Wyman argues that public disclosure would result in great harm, since its competitors would know the average compensation of Oliver Wyman partners and be able to more efficiently hire them away from Oliver Wyman. In support of its position, Oliver Wyman submits two declarations of its Chief Financial Officer, Matthew Cunningham. (See First Cunningham Decl.; Doc. No. 107 ("Second Cunningham Decl."). Having reviewed these materials and Cunningham's declarations, the Court agrees that the public disclosure of this information "might harm a litigant's competitive standing." In re Parmalat Sec. Litig. ,
Moreover, disclosure of individual partner compensation raises additional unique privacy concerns. As the Second Circuit has instructed, "[t]he privacy interests of innocent third parties should weigh heavily in a court's balancing equation" and "are a venerable common law exception to the presumption of access." United States v. Amodeo ,
The third category of information Oliver Wyman hopes to seal is the firm's internal analysis of the competitiveness of its practice groups. For this information as well, *707Oliver Wyman makes a compelling argument that its public disclosure would harm its competitive standing. (See Second Cunningham Decl. ¶ 5.)
The remaining categories of information Oliver Wyman hopes to seal all carry a low presumption of access to public records because they are collateral to the Court's resolution of the parties' summary judgment motions. Oliver Wyman also sets forth a compelling competitive interest in maintaining the secrecy of its payments to its parent company, the identities of its clients and potential clients, and its cost structure. As the Cunningham Declaration makes clear, public disclosure of Oliver Wyman's payments to its parent company, Marsh, could negatively impact Marsh's ability to compete for new subsidiaries and harm relationships with existing subsidiaries. (Id. ¶ 14.) Furthermore, information concerning Oliver Wyman's clientele could constitute a contractual breach and harm Oliver Wyman's ability to maintain its existing clients and attract new clients. (Id. ¶ 12.) And disclosure of internal billing rates could place Oliver Wyman at a competitive disadvantage by allowing competitors to undercut Oliver Wyman's bids and capture a larger market share. (Id. ¶ 15.) The Court also agrees that the allegations in the exhibits detailing internal employee evaluations would likely cause embarrassment to third parties and that the third parties' privacy interests outweigh the public's interest in disclosure. See Amodeo ,
Accordingly, with all but a few exceptions, the Court finds that Oliver Wyman has demonstrated "particular and specific ... fact[s] showing that disclosure" of the information in question "would result in an injury sufficiently serious to warrant protection" and has rebutted the presumption in favor of open records with respect to the proposed sealing. See United States v. Wells Fargo Bank N.A. , No. 12-cv-7527 (JMF),
• Exhibit 11 to the Pappas Declaration (Doc. No. 79, Ex. 11): The Court finds that the complete redaction of this document is unwarranted. While some of the information reflected in this email chain-such as specific figures regarding average partner compensation at Oliver Wyman-justify sealing, many components of this chain relate to general statements and pleasantries and therefore implicate no serious countervailing interests. Accordingly, the Court concludes that Oliver Wyman's redaction request is overbroad and that it must be denied.
• Exhibit K to the Strong Declaration (Doc. No. 89, Ex. K): The Court finds that the second and third proposed redactions do not reflect internal assessments concerning the competitiveness of Oliver Wyman practice groups. They are also overbroad because the information contained within those redactions are otherwise included, unredacted, elsewhere in the document.
• The second and third redactions on page 4 of Oliver Wyman's reply brief (Pl. Reply 4): The Court finds that these proposed redactions are unwarranted since they encompass information that goes beyond Kon's realized flow-through rate, extending to information about the firm's record keeping and conclusions to be drawn from Kon's statements.
In sum, with the exception of the three documents set forth above, Oliver Wyman's sealing requests are granted. If Oliver Wyman wishes to submit revised proposed redactions for any of these three *708documents, it shall do so no later than October 9, 2017.
Furthermore, for the reasons set forth above, the Court concludes that the presumption of open records has been rebutted with respect to the same pieces of information that are included in this opinion. Accordingly, the publicly docketed version of this opinion will appear in redacted form, with the unredacted opinion filed under seal.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED THAT Defendant's motion for summary judgment on Oliver Wyman's breach of contract claims is DENIED.
IT IS FURTHER ORDERED THAT Oliver Wyman's motion to dismiss is GRANTED with respect to alleged misrepresentations concerning flow-through rates and platform strength, and DENIED with respect to alleged misrepresentations concerning average partner compensation.
IT IS FURTHER ORDERED THAT Oliver Wyman's sealing motions are GRANTED in substantial part, with the exception of three documents that included excessive proposed redactions. IT IS FURTHER ORDERED THAT if Oliver Wyman wishes to submit revised proposed redactions for the Court's review, it shall do so no later than October 9, 2017.
IT IS FURTHER ORDERED THAT a trial in this matter shall commence on February 5, 2018 at 9:30 a.m. in Courtroom 905, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. Additional pretrial deadlines shall follow shortly in a separately docketed order.
The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 76, 81, 83, 91, 105, and 115.
SO ORDERED.
Notes
The following facts are taken from the parties' Local Civil Rule 56.1 Statements, the affidavits and declarations submitted in connection with the instant motion, and the exhibits attached thereto. (Doc. No. 78 ("Pl. 56.1"); Doc. No. 87 ("Def. 56.1"); Doc. No. 96 ("Pl. Counter 56.1"); Doc. No. 101 ("Def. Counter 56.1")). Unless otherwise noted, where one party's 56.1 Statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact. In deciding this motion, the Court also considered Oliver Wyman's memorandum of law in support of its motion (Doc. No. 77 ("Pl. Mem.")), Defendants' opposition brief (Doc. No. 98 ("Def. Opp'n")), Oliver Wyman's reply brief (Doc. No. 112 ("Pl. Reply")), Defendants' memorandum of law in support of its motion (Doc. No. 82 ("Def. Mem.")), Oliver Wyman's opposition brief (Doc. No. 95 ("Pl. Opp'n")), Defendants' reply brief (Doc. No. 111 ("Def. Reply")), and memoranda of law and declarations and exhibits submitted in support of the various sealing motions (Doc. Nos. 86, 92, 106, 116).
The flow-through rate is a "backward-looking metric" that calculates the percentage of project revenue realized as partner compensation. (See Pl. 56.1 ¶ 9.)
As the Court already discussed in its September 22, 2016 Opinion and Order, the employment agreement and the non-solicitation agreement contain New York choice-of-law clauses. See Oliver Wyman ,
The APA's choice of law provision does not apply to these tort claims. In the Court's September 22, 2016 Opinion, the Court determined that New York law applied to Oliver Wyman's fraud claims. See Oliver Wyman ,
Oliver Wyman argues that this document must be sealed because it discusses "non-public events" in the CIVT group; however, the proposed redactions relate only to compensation figures.
Oliver Wyman lists Exhibit I to the Strong declaration in its sealing motion and submitted proposed redactions for it; however, Oliver Wyman does not provide a rationale under which it seeks to have portions of this document sealed. Because Exhibit I involves internal assessments concerning a non-party Oliver Wyman employee, the Court assumes Oliver Wyman seeks its redaction for this reason.