Hohenberg v. Ferrero USA, Inc
MOTION to File Documents Under Seal (Fitzgerald, John) (leh).
1 2 3 4 5 6 7 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) email@example.com MAGGIE REALIN (263639) firstname.lastname@example.org B. SKYE RESENDES (278511) email@example.com 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 8 THE WESTON FIRM GREGORY S. WESTON (239944) firstname.lastname@example.org JACK FITZGERALD (257370) email@example.com MELANIE PERSINGER (275423) firstname.lastname@example.org COURTLAND CREEKMORE (182018) email@example.com 1405 Morena Blvd. Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 9 Class Counsel 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 Case No. 11-cv-00205 H KSC Pleading Type: Class Action 13 14 15 16 17 18 19 IN RE FERRERO LITIGATION PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL UNREDACTED VERSIONS OF (1) THE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, AND (2) MEMORANDUM IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARDS Judge: The Honorable Marilyn L. Huff 20 21 22 23 24 25 26 27 28 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 2 PLEASE TAKE NOTICE that Plaintiffs hereby apply for an Order allowing them to file under 3 seal the unredacted versions of the Memorandum of Points and Authorities in Support of Plaintiffs’ 4 Motion for Final Approval of Class Action Settlement (“Memorandum in Support of Final Approval”) 5 and the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Approval of 6 Attorneys’ Fees, Costs, and Incentive Awards (“Memorandum in Support of Attorneys’ Fees”) 7 BACKGROUND 8 On April 19, 2011, the Court entered a Protective Order (Dkt. 32). The Protective Order permits 9 the parties to designate information as “Confidential . . . if, in the good faith belief of such party and its 10 counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business 11 or operations of such party.” Protective Order at ¶ 4. Under the Protective Order, the parties have 12 agreed to apply to file such confidential information under seal. See id. at ¶ 12. Because Plaintiffs’ 13 Memorandums in Support of Final Approval and Attorneys’ Fees contain discussions of documents 14 designated by Defendant as confidential, Plaintiffs apply to file this document under seal. 15 16 17 ARGUMENT I. LEGAL STANDARD “[T]he Supreme Court recognize[s] a federal common law right ‘to inspect and copy public 18 records and documents.’ This right extends to pretrial documents filed in civil cases . . . .” Foltz v. State 19 Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v. Warner 20 Communic’ns, 435 U.S. 589, 597 (1978)). As such, there is “a strong presumption in favor of access to 21 court records,” id. at 1135 (citation omitted), unless the documents are “among those which have 22 ‘traditionally been kept secret for important policy reasons,’” id. at 1134 (quoting Times Mirror Co. v. 23 United States, 873 F.2d 1210, 1219 (9th Cir. 1989)). 24 “A party seeking to seal a judicial record then bears the burden of overcoming this strong 25 presumption by meeting the compelling reasons standard. That is, the party must articulate compelling 26 reasons supported by specific factual findings, . . . that outweigh the general history of access and the 27 public policies favoring disclosure . . . .” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 28 1178-79 (9th Cir. 2006) (citations and quotation marks omitted)). 1 In re Ferrero Litigation, Case No. 11-CV-00205-H-KSC PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL The common law right of access, however, is not absolute and can be overridden given sufficiently compelling reasons for doing so. In making the determination, courts should consider all relevant factors, including: the public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets. . . . After taking all relevant factors into consideration, the district court must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture. 1 2 3 4 5 6 Foltz, 331 F.3d at 1135 (citations omitted). Moreover, there is an exception to the presumption of access to court records for documents 7 8 attached to a non-dispositive motion and filed under seal pursuant to a valid protective order. Foltz, 331 9 F.3d at 1135 (“‘when a party attaches a sealed discovery document to a nondispositive motion, the 10 usual presumption of the public’s right of access is rebutted.’ . . . [T]he presumption of access [is] 11 rebutted because ‘when a court grants a protective order for information produced during discovery, it 12 already has determined that “good cause” exists to protect this information from being disclosed to the 13 public by balancing the needs for discovery against the need for confidentiality.’” (quoting Phillips v. 14 GMC, 307 F.3d 1206, 1213 (9th Cir. 2002))). 15 II. BECAUSE PLAINTIFFS HAVE SHOWN GOOD CAUSE FOR SEALING THESE 16 DOCUMENTS, THE COURT SHOULD GRANT THEIR APPLICATION TO FILE 17 UNDER SEAL 18 Plaintiffs’ Memorandum in Support of Motion Final Approval, at page 14, and Plaintiffs’ 19 Memorandum in Support of Attorneys’ Fees, throughout, discuss Ferrero’s Nutella sales, which Ferrero 20 maintains should be filed under seal because it qualifies as “confidential commercial information,” the 21 public disclosure of which would limit Ferrero’s ability to compete in the marketplace. See Nutratech, 22 Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 555 n.4 (C.D. Cal. 2007) (“Fed. R. Civ. P. 26(c)(7) does not 23 limit its reach to ‘trade secrets,’ but also allows for protection of ‘confidential commercial information.’ 24 Customer/supplier lists and sales and revenue information qualify as ‘confidential commercial 25 information.’”). 26 Additionally, Ferrero has agreed that if any member of the public or Class Member, other than a 27 competitor of Ferrero, wishes to review the unredacted versions of the Memoranda being filed under 28 seal, it may do so by contacting Class Counsel and signing an agreement to abide by the terms of the 2 In re Ferrero Litigation, Case No. 11-CV-00205-H-KSC PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL 1 Protective Order entered in this action. Thus, allowing Plaintiffs to file these documents under seal will 2 not affect the public interest in understanding the judicial process. 3 4 CONCLUSION For the reasons discussed above, the Court should grant Plaintiffs’ Application to File Under 5 Seal. Plaintiffs will also electronically file public versions of their Memoranda with the confidential 6 information redacted. 7 8 DATED: May 25, 2012 Respectfully Submitted, 9 /s/ Jack Fitzgerald Jack Fitzgerald 10 11 12 13 14 15 16 17 18 19 20 21 22 THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD MELANIE PERSINGER COURTLAND CREEKMORE 1405 Morena Blvd., Suite 201 San Diego, CA 92109 Telephone: 619 798 2006 Facsimile: 480 247 4553 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON MAGGIE REALIN B. SKYE RESENDES 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: 619 696 9006 Facsimile: 619 564 6665 Class Counsel 23 24 25 26 27 28 3 In re Ferrero Litigation, Case No. 11-CV-00205-H-KSC PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL