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533 Short North LLC v. Zwerin

Court of Appeals of Ohio, Tenth District

December 21, 2017

533 Short North LLC et al., Plaintiffs-Appellants,
v.
Victoria Marie Zwerin et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 13CV-2253

         On brief:

          Law Offices of James P. Connors, and James P. Connors, for appellants.

          James E. Arnold & Associates, LPA, Gerhardt A. Gosnell, II, James E. Arnold, and Julia A. Davis, for appellees.

         Argued:

          James P. Connors.

          Gerhardt A. Gosnell, II.

          DECISION

          PER CURIAM.

         {¶ 1} Plaintiffs-appellants, 533 Short North LLC ("533 Short North LLC"), Christopher J. Corso, Michael Gallicchio, and Jennifer Pepper, appeal a judgment of the Franklin County Court of Common Pleas that granted the motion to dismiss filed by defendants-appellees, Victoria Marie Zwerin, Grant William Dziak, Michael Quinn, Sarah L. Loveridge, Ashley F. Evans, Joseph Michael Harvey, Brett Fidram, Scott Hetrick, Savannah Lennon, Brenda L. Winters, Lisa A. DeVine, Joseph A. Shuster, Tiffany Rae Good, James Curtis VanMeter, Frank Parrish, Andrew R. Frisch, and Morgan & Morgan PA.

         {¶ 2} We previously set forth the facts of this protracted litigation in detail in 533 Short North, LLC v. Zwerin, 10th Dist. No. 14AP-1016, 2015-Ohio-4040 ("533 Short N."), and the following factual summary includes a slightly abbreviated version of the facts from that decision. 533 Short North LLC is the owner of a chain of bars in Columbus, Ohio. Zwerin is a former employee of 533 Short North LLC. In 2010, Zwerin filed an action in the United States District Court for the Southern District of Ohio against 533 Short North LLC and individuals who either worked for or had an interest in 533 Short North LLC (hereinafter collectively referred to as "533 Short North"), alleging that 533 Short North's tipping practices violated federal and state wage and hour laws. Frisch, an attorney with Morgan & Morgan, PA, represented Zwerin. Subsequently, some of Zwerin's co-employees opted into the collective action sought by Zwerin.

         {¶ 3} In late 2011, the parties entered into a monetary settlement that included a confidentiality provision that precluded Zwerin from disclosing the terms of the settlement.

         {¶ 4} On May 25, 2012, Zwerin electronically filed a motion seeking the district court's approval of the settlement agreement. Zwerin appended to her motion a copy of the parties' settlement agreement. 533 Short North immediately objected to the filing of the settlement agreement on the publicly accessible docket system. Zwerin withdrew the motion and exhibits, but the motion was not removed from the database until four days later due to an intervening weekend and holiday. The district court subsequently approved the settlement agreement.

         {¶ 5} On May 30, 2012, the Columbus Dispatch published on its website an article about Zwerin's claims and the settlement. The same article appeared in the print version of the Columbus Dispatch the next day. The article included statements attributed to Frisch and two opt-in plaintiffs that included information that appellees believed violated the confidentiality agreement. On the same day the Columbus Dispatch published the print version of the article, the website "Breakinglawsuitnews.com" posted a story about the parties' settlement that included much of the same information as the Columbus Dispatch article. Approximately two weeks later, the website "Openforum.com" posted an article that reported information that appellees believe violated the confidentiality agreement. Frisch also described Zwerin's suit and posted a link to the Columbus Dispatch article on a blog that he maintains.

         {¶ 6} On August 24, 2012, Zwerin filed a motion for certification of the settlement class and final approval of the settlement. 533 Short North did not oppose the motion and did not raise any objections at the hearing on the motion. On August 31, 2012, the district court granted Zwerin's motion, ...


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