Hohenberg v. Ferrero USA, Inc

Filing 57

MOTION to File Documents Under Seal (With attachments)(Fitzgerald, John)(leh).

1 LAW OFFICES OF RONALD A.
MARRON, APLC
2 RONALD A. MARRON (175650)
3 3636 4th Street, Suite 202
San Diego, CA 92103
[phone]
4 Telephone:
Facsimile:
[phone]
5 [e-mail]
6
7

THE WESTON FIRM
GREGORY S. WESTON (239944)
JACK FITZGERALD (257370)
MELANIE PERSINGER (275423)
888 Turquoise Street
San Diego, CA 92109
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]

8
9 Interim Class Counsel
10
11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

12
13
IN RE FERRERO LITIGATION
14
15
16
17
18

CASE NO. 3:11-CV-00205-H-CAB
Pleading Type: Class Action
Action Filed: February 01, 2011
PLAINTIFFS’ APPLICATION TO FILE
UNDER SEAL THE UNREDACTED
MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION, EXHIBITS 1-4, 10, 1317, 20, 22, 24-26, AND 28-34 TO THE
DECLARATION OF GREGORY S.
WESTON, AND CONFIDENTIAL
PORTIONS OF THIS APPLICATION

19
20
21

Judge: Hon. Marilyn L. Huff
Date: October 11, 2011
Time: 10:30 a.m.
Location: Courtroom 13

22
23
24
25
26
27

28
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
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

3 under seal the unredacted versions of the Memorandum in Support of Plaintiffs‘ Motion for
4 Class Certification and Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26,
5 and 28-34 to the Declaration of Gregory S. Weston, and confidential portions of this Application
6 in accordance with Local Rule 79.2
7
8

BACKGROUND
On April 19, 2011, the Court entered a Protective Order (Dkt. 32). The Protective Order

9 permits the parties to designate information as ―Confidential . . . if, in the good faith belief of
10 such party and its counsel, the unrestricted disclosure of such information could be potentially
11 prejudicial to the business or operations of such party.‖ Under the Protective Order, the parties
12 have agreed to apply to file such confidential information under seal. See Protective Order at ¶
13 12. Because Plaintiffs Memorandum in Support of Plaintiffs‘ Motion for Class Certification and

14 Appointment of Class Counsel and Exhibits 1-5, 9-11, and 13-34 to the Declaration of Gregory
15 S. Weston contained copies and discussions of documents designated by Defendant and third16 party Connie Evers (who was acting under the Protective Order) as confidential, Plaintiffs
17 applied to file these documents under seal on August 1, 2011. (Dkt. No. 52.)
18

On August 3, 2011, the Court denied Plaintiffs‘ application, holding that ―Plaintiffs‘ one-

19 page motion to seal does not identify each exhibit and explain why any particular statements o
20 portions of the exhibits [ ] may warrant sealing.‖ In re Ferrero Litig., 2011 U.S. Dist. LEXIS

21 58238, at *5 (S.D. Cal. Aug. 3, 2011). The Court further explained that, ―[t]o the extent Plaintiffs
22 argue that thee protective order itself assures that Rule 26(c) good cause standard is met in this
23 case, the argument is rejected.‖ Id. Finally, the Court instructed that ―[s]hould either party in the
24 future request the sealing of any documents, they must designate specific portions based on the
25 appropriate showing.‖ Id.
26
27
28

1
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

In response to the Court‘s Order, the parties met and conferred with counsel for both

1

2 Ferrero and Ms. Evers to discuss withdrawing any unnecessary confidentiality designations,
3 limiting redactions where possible, and articulating good cause for why each document, or
4 excerpt thereof, should be filed under seal. As a result of these discussions, Defendant and Ms.
5 Evers agreed to: (1) withdraw its confidentiality designation on Exhibits 5, 9, 11, 18-19, 21, 23,
6 and 27; (2) designate specific portions of Exhibit 2 (Connie Evers‘ Deposition Transcript) as
7 confidential, rather than the entire transcript; (3) limit the redactions of Exhibits 10, 20, 25, 288 29, and 31 to specific excerpts, rather than the entire contents, of each; and (4) reduce the
9 portions of the Memorandum which would need to be redacted. Defendant and Ms. Evers also
10 articulated reasoning for each designation, which Plaintiffs incorporated into this revised
11 Application to File Under Seal the Memorandum in Support of Plaintiffs‘ Motion for Class
12 Certification and Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26, and 2813 34 to the Declaration of Gregory S. Weston, and confidential portions of this Application.

14
15
16

ARGUMENT
I.

LEGAL STANDARD
―[T]he Supreme Court recognize[s] a federal common law right ‗to inspect and copy

17 public records and documents.‘ This right extends to pretrial documents filed in civil cases . . .
18 .‖Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v.
19 Warner Communications, 435 U.S. 589, 597 (1978)). As such, there is ―a strong presumption in
20 favor of access to court records,‖ id. at 1135 (citation omitted), unless the documents are ―among

21 those which have ‗traditionally been kept secret for important policy reasons,‘‖ id. at 1134
22 (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989)).
23

―A party seeking to seal a judicial record then bears the burden of overcoming this strong

24 presumption by meeting the compelling reasons standard. That is, the party must articulate
25 compelling reasons supported by specific factual findings, . . . that outweigh the general history
26 of access and the public policies favoring disclosure, such as the public interest in understanding
27
28

2
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1 the judicial process.‖ Kamakana v. City & Cnty of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir.
2 2006) (citations and quotation marks omitted).
3
4
5
6
7
8

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.

9 Foltz, 331 F.3d at1135 (citations omitted); see also Kamakana, 447 F.3d at 1179 (―In general,
10 ‗compelling reasons‘ sufficient to outweigh the public‘s interest in disclosure and justify sealing
11 court records exist when such ‗court files might have become a vehicle for improper purposes,‘
12 such as the use of records to gratify private spite, promote public scandal, circulate libelous
13 statements, or release trade secrets.‖).

14

Moreover, there is an exception to the presumption of access to court records for

15 documents attached to a non-dispositive motion and filed under seal pursuant to a valid
16 protective order. Foltz, 331 F.3d at 1135 (―‗when a party attaches a sealed discovery document to
17 a nondispositive motion, the usual presumption of the public's right of access is rebutted.‘ . . .
18 [T]he presumption of access [is] rebutted because ‗when a court grants a protective order for
19 information produced during discovery, it already has determined that ―good cause‖ exists to
20 protect this information from being disclosed to the public by balancing the needs for discovery

21 against the need for confidentiality.‘‖ (quoting Phillips v. GMC, 307 F.3d 1206, 1213 (9th Cir.
22 2002))).
23 ///
24 ///
25
26
27
28

3
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1

II.

BECAUSE PLAINTIFFS HAVE SHOWN GOOD CAUSE FOR SEALING

2

THESE

3

APPLICATION TO FILE UNDER SEAL

4
5

A.

DOCUMENTS,

THE

COURT

SHOULD

GRANT

THEIR

THE CONTENTS OF NUTELLA

The following exhibit and portions of the Memorandum of Points and Authorities in

6 Support of Class Certification (―Memorandum‖) discuss the contents of Nutella:
7



Exhibit 1

8



Memorandum page 1, line 11

9

The contents of Nutella are a trade secret, disclosure of which would allow Ferrero‘s

10 competitors to offer the same product under their label, thus causing substantial harm to
11 Ferrero‘s business. Good cause thus exists for sealing any information relating to the formulation
12 of Nutella. See, e.g., Kamakana, 447 F.3d at 1179 (―[C]ompelling reasons‘ sufficient to outweigh
13 the public‘s interest in disclosure and justify sealing court records exist when such ‗court files

14 might have become a vehicle for improper purposes,‘ such as the . . . release [of] trade secrets.‖
15

B.

16
17

FERRERO’S

COMMERCIALLY

SENSITIVE

FINANCIAL

INFORMATION
The following exhibits and portions of the Memorandum discuss Ferrero‘s commercially

18 sensitive financial information:
19



Exhibits 3, 4, 33, and 34

20



Memorandum page 1, lines 21-23.

21



Memorandum page 2, lines 2-8 and graph showing ―Net Sales of Nutella‖ and

22

―Ferrero‘s Advertising & Promotional Spending.‖

23



Memorandum page 13, lines 17-20

24



Memorandum page 13, line 13.

25

This information should be filed under seal because such information qualifies as

26 ―confidential commercial information,‖ see Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552,
27
28

4
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1 555, n.4 (C.D. Cal. 2007) (―Fed. R. Civ. P. 26(c)(7) does not limit its reach to ‗trade secrets,‘ but
2 also allows for protection of ‗confidential commercial information.‘ Customer/supplier lists and
3 sales and revenue information qualify as ‗confidential commercial information.‘‖), the public
4 disclosure of which would limit Ferrero‘s ability to compete in the marketplace.
5
6

C.

FERRERO’S MARKETING STRATEGY

The following exhibits, excerpts thereof, and portions of the Memorandum discuss

7 Ferrero‘s confidential marketing strategies:
8



Exhibits 15-17, 22, 24, and 26

9



Exhibit 10,

10



Exhibit 20,

13



Exhibit 25, the text of the email on CEVERS271

14



Exhibit 28,



Exhibit 29,



Exhibit 31,



Exhibit 2, Connie Evers‘ Deposition Transcript, page 98, line 10 – to page 99, line

11
12

15
16
17
18
19
20

21
22
23
24
25

17


Exhibit 2, Connie Evers‘ Deposition Transcript, page 11, lines 16-35

26
27
28

5
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1



2
3

25


4
5

Exhibit 2, Connie Evers‘ Deposition Transcript, page 154, line 1 – page 167, line

Exhibit 2, Connie Evers‘ Deposition Transcript, page 174, line 9 – page 175, line
16



6

Exhibit 2, Connie Evers‘ Deposition Transcript, page 236, line 11 – page 243, line
23

7



Exhibit 2, Connie Evers‘ Deposition Transcript, page 248, lines 17-25

8



Exhibit 2, Connie Evers‘ Deposition Transcript, page 271, line 15 – page 272, line

9

2

10



Exhibit 2, Connie Evers‘ Deposition Transcript, page 272 lines 14-20

11



Exhibit 2, Connie Evers‘ Deposition Transcript, page 273, line 7 – page 274, line

12

16

13



Exhibit 2, Connie Evers‘ Deposition Transcript, page 275, lines 7-25

14



Exhibit 2, Connie Evers‘ Deposition Transcript, page 277, line 15 – page 278, line

15

5

16



Exhibit 2, Connie Evers‘ Deposition Transcript, page 281, lines 3-19

17



Exhibit 2, Connie Evers‘ Deposition Transcript, page 292, lines 11-25

18



Exhibit 2, Connie Evers‘ Deposition Transcript, page 293, line 2 – page 294, line

19
20

21

1


Exhibit 2, Connie Evers‘ Deposition Transcript, page 305, lines 1-11



Exhibit 2, Connie Evers‘ Deposition Transcript, page 319, line 23 – page 320, line

22
8
23



Exhibit 2, Connie Evers‘ Deposition Transcript, page 325, line 10 – page 326, line

24
25
25
26
27
28



Exhibit 2, Connie Evers‘ Deposition Transcript, page 337, lines 21-22



Exhibit 2, Connie Evers‘ Deposition Transcript, page 366, lines 7-19
6
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1



Memorandum, page 4, lines 23-26

2



Memorandum, page 5, line 28 – page 6, line 18

3



Memorandum, page 6, lines 25-27

4



Memorandum, page 7, lines 10-11

5



Memorandum, page 8, line 20 – page 9, line 8

6



Memorandum, page 9, footnote 6

7



Memorandum, page 10, lines 4-7

8



Memorandum, page 11, lines 5-7

9



Memorandum, page 13, lines 17-20

10



Memorandum, page 13, line 23

11



Memorandum, page 22, lines 14-15

12

Ferrero‘s marketing strategy should be filed under seal because public disclosure of this

13

information would harm Defendant‘s ability to compete in the marketplace. Disclosure would

14
15
16
17
18
19
20

21

allow Ferrero‘s competitors to learn the details of and imitate its effective marketing strategies,
which cost Ferrero millions of dollars to develop and implement. Thus, Ferrero‘s competitors
would be saved the costs of researching and developing a marketing strategy of their own,
thereby putting Ferrero at a substantial financial and competitive disadvantage.
For example, allowing the public to access to Exhibit 16 would save competitors the time
and costs associated with finding opinion leaders to endorse their advertising campaigns since
they could simply contact those already identified by Defendant. Giving competitors access to
opinion leaders which Defendant may have contacted regarding their Nutella advertising

22

campaign also gives Defendant‘s competitors the implied information of who may have turned

23

down Defendant‘s offer, and thus might be willing to engage in a campaign directly aimed at

24

disparaging Defendant or its advertising campaign.

25
26
27
28

7
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1
2

D.

CONNIE EVERS’ CONTRACT WITH FERRERO

The following exhibits and portions of the Memorandum contain the Spokesperson

3 Agreement between Connie Evers and Defendant, as well as discussions about the contents and
4 surrounding negotiations of said agreement:
5



Exhibits 13, 14, 15, 30, and 32

6



Exhibit 2, Connie Evers‘ Deposition Transcript: page 98, line 1 – page 99, line 17

7



Exhibit 2, Connie Evers‘ Deposition Transcript, page 100, lines 16-25

8



Exhibit 2, Connie Evers‘ Deposition Transcript, page 154, lines 1-15

9



Exhibit 2, Connie Evers‘ Deposition Transcript, page 292, lines 2-25

10



Exhibit 2, Connie Evers‘ Deposition Transcript, page 293, line 2 – page 294, line

11

1

12



Exhibit 2, Connie Evers‘ Deposition Transcript, page 305, lines 1-11

13



Memorandum page 4, lines 24-26

14



Memorandum page 5, line 27- page 6, line 6

15



Memorandum Page 10, lines 4-7

16
17
18
19
20

21
22

Connie Evers‘ Spokesperson Agreement and surrounding negotiations, including
discussions thereof, should be filed under seal because this information is confidential
commercial information, the disclosure of which would prejudicially affect Ms. Evers‘ freedom
to contract with other companies. If the terms of Ms. Evers‘ agreement with Ferrero, or the
surrounding negotiations, become public, her ability to contract for more beneficial or different
terms will be severely limited and her business is likely to suffer as a result.
CONCLUSION

23

For the reasons discussed above, the Court should grant Plaintiffs‘ Application to File

24

Under Seal the Memorandum in Support of Plaintiffs‘ Motion for Class Certification and

25
26

Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26, and 28-34 to the
Declaration of Gregory S. Weston, and confidential portions of this Application. Plaintiffs will

27
28

8
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1 also electronically file public versions of their Application and Memorandum with confidential
2 information and exhibits redacted.
3
4
5
6
7
8
9
10
11
12
13

14
15
16
17
18
19
20

21
22
23
24
25
26
27
28

9
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

1 Dated: August 15, 2011

Respectfully Submitted,

2

/s/Gregory S. Weston
Gregory S. Weston

3
4
5
6
7
8
9
10
11
12

THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
888 Turquoise Street
San Diego, CA 92109
Telephone:
858 488 1672
Facsimile:
480 247 4553
LAW OFFICES OF RONALD
MARRON, APLC
RONALD A. MARRON
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone:
619 696 9066
Facsimile:
619 564 6665

13

14

Interim Class Counsel

15
16
17
18
19
20

21
22
23
24
25
26
27
28

10
In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL

A.