Hohenberg v. Ferrero USA, Inc

Filing 73

MOTION to File Documents Under Seal (Eggleton, Keith) (atty contacted re cert of service) (lmt).

1
2
3
4
5
6
7

KEITH E. EGGLETON, State Bar No. 159842
COLLEEN BAL, State Bar No. 167637
DALE R. BISH, State Bar No. 235390
EDMUNDO C. MARQUEZ, State Bar No. 268424
AMIR STEINHART, State Bar No. 275037
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FERRERO U.S.A, INC.

8
9

UNITED STATES DISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11
In re FERRERO LITIGATION
12

CASE NO.: 11 CV 0205 H (CAB)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

13
14
15
16
17
18
19
20
21
22
23

FERRERO U.S.A., INC.’S MOTION
TO FILE UNDER SEAL THE
UNREDACTED OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION AND
DECLARATION OF BERNARD F.
KREILMANN IN SUPPORT OF
FERRERO U.S.A, INC.’S
OPPOSITION TO PLAINTIFFS’
MOTION FOR CLASS
CERTIFICATION
……………………….
Date: November 7, 2011
Time: 10:30 a.m.
Courtroom 13
Before: Hon. Marilyn L. Huff

24
25
26
27
28
FERRERO U.S.A., INC.’S MOTION
TO FILE UNDER SEAL

11 CV 0205 H

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that, pursuant to Rule 79.2 of the Local Rules for the Southern

3

District of California, Ferrero U.S.A., Inc. (“Ferrero”) hereby moves for an order allowing it to

4

file under seal the unredacted version of Ferrero U.S.A., Inc.’s Opposition to Plaintiffs’ Motion

5

for Class Certification (“the Opposition”) as well as the declaration of Bernard F. Kreilmann in

6

Support of Ferrero U.S.A., Inc.’s Opposition to Plaintiffs’ Motion for Class Certification.

7

BACKGROUND

8

As the Court is aware, this putative class action involves allegations by two named

9

plaintiffs pertaining to the marketing and sales of Ferrero’s popular hazelnut spread, Nutella. As

10

a privately held company (Compl. ¶ 13) that operates in an extremely competitive industry,

11

Ferrero regards its financial results, sales information and marketing strategies as confidential

12

and proprietary – the disclosure of which “could be potentially prejudicial to its business or

13

operations.” See Dkt No. 32 (“Protective Order”) at 2; Kreilmann Decl. ¶ 19. Indeed, Ferrero

14

considers certain information that has been produced in this litigation to be highly confidential as

15

set forth in the Protective Order and therefore subject to additional protections. Id. at 2

16

(“Confidential – For Counsel Only”).

17

On August 1, 2011, plaintiffs moved for certification of a nationwide class and submitted,

18

among other things, confidential information of Ferrero, including (1) information pertaining to

19

the formulation of Nutella; (2) commercially sensitive financial information and data; and (3)

20

documents reflecting Ferrero’s confidential marketing strategies.

21

On August 15, 2011, plaintiffs filed a motion seeking to file certain exhibits under seal,

22

along with a redacted version of plaintiffs’ memorandum, to protect Ferrero’s confidential

23

information. Dkt. 57. On August 17, 2011, the Court granted plaintiffs’ motion. Dkt. 65. In

24

doing so, the Court held that “good cause exists” to seal the documents containing Ferrero’s

25

sensitive information. Id. at 2.

26

Ferrero opposes plaintiffs’ motion for class certification and, in connection with its

27

opposition papers, is filing declarations from its Chief Executive Officer and President, Bernard

28

Kreilmann and the Category Manager for Nutella, Karl Krohn, which provide the Court with
FERRERO U.S.A., INC.’S MOTION
TO FILE UNDER SEAL

-1-

11 CV 0205 H
4475774

1

facts regarding Ferrero’s operations, marketing and sales information. This information is

2

necessary for the Court’s analysis as to whether plaintiffs have satisfied their burden in moving

3

for a nationwide class. One of the declarations (Mr. Kreilmann’s) contains confidential and

4

proprietary information of Ferrero, which, if disclosed, “could be potentially prejudicial to

5

[Ferrero’s] business or operations.” Dkt No. 32 at 2; Kreilmann Decl. ¶ 19. As a result, Ferrero

6

seeks to file this declaration, along with its unredacted memorandum, under seal. Ferrero is

7

filing public versions of those documents that will contain a minimum number of redactions to

8

protect only that information that Ferrero regards as confidential or highly confidential.

9
10

ARGUMENT
I.

11

LEGAL STANDARD
Although courts have held that there is “a strong presumption in favor of access to court

12

records[,]” (Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)), courts

13

recognize that public access is often outweighed by the need to protect a party’s confidential and

14

proprietary information so long as the restriction is narrowly tailored. Oregonian Publ’g Co. v.

15

United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir.1990) (quoting Press-Enterprise Co. v.

16

Superior Court, 446 U.S. 501, 510 (1985)); Kamakana v. City & Cnty of Honolulu, 447 F.3d

17

1172, 1179 (9th Cir. 2006) (“In general, ‘compelling reasons’ sufficient to outweigh the public’s

18

interest in disclosure and justify sealing court records exist when such ‘court files might become a

19

vehicle for improper purposes,’ such as the use of records to . . . release trade secrets.”).

20

II.

21

THERE IS GOOD CAUSE TO SEAL DOCUMENTS REFLECTING
FERRERO’S CONFIDENTIAL AND PROPRIETARY FINANCIAL
INFORMATION

22

Consistent with the Court’s August 17 Order, this motion seeks to protect Ferrero’s

23

commercially sensitive financial information. Dkt. No. 65 (“The Court concludes that good cause

24

exists to seal the requested documents[,]” which contain Ferrero’s commercially sensitive

25

financial information). In seeking this protection, Ferrero is mindful of the public’s right to access

26

and – as a result – has exercised restraint in redacting the documents that are to be filed publicly.

27

Only one footnote in the brief and only the confidential financial information present in the

28

Kreilmann declaration have been redacted.
FERRERO U.S.A., INC.’S MOTION
TO FILE UNDER SEAL

-2-

11 CV 0205 H
4475774

1

In addition to this court’s August 17 order, other courts have long-recognized that

2

protecting a company’s confidential commercial information can outweigh the public’s right to

3

access. See Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 555, n. 4 (C.D. Cal. 2007)

4

(“Fed. R. Civ. P. 26(c)[(1)(G)] does not limit its reach to ‘trade secrets,’ but also allows for

5

protection of ‘confidential commercial information.’ Customer/supplier lists and sales and

6

revenue information qualify as ‘confidential commercial information.’”). Indeed, such concerns

7

are even more pressing where a company, like Ferrero, is not publicly traded and its financial

8

results are not generally made public. Therefore, Ferrero seeks to restrict access to the following

9

portions of Ferrero’s filings that reflect its propriety financial information:

10



11
12

Declaration of Bernard F. Kreilmann in Support of Ferrero U.S.A., Inc.’s Opposition
to Plaintiffs’ Motion for Class Certification, paragraphs 19 through 29.



Opposition, page 7, footnote 5.

13

CONCLUSION

14

For the reasons discussed above, the Court should grant Ferrero’s Motion to File Under

15

Seal the unredacted versions of Ferrero US.A., Inc.’s Opposition to Plaintiffs’ Motion for Class

16

Certification and the declaration of Bernard F. Kreilmann in Support of Ferrero U.S.A., Inc.’s

17

Opposition to Plaintiffs’ Motion for Class Certification. Ferrero will also electronically file

18

public versions of its Motion and Memorandum with confidential information and exhibits

19

redacted.

20
21

Dated: October 10, 2011

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

22
23
24

By: /s/ Keith E. Eggleton
Keith E. Eggleton

25

Attorneys for Defendant Ferrero U.S.A., Inc.

26
27
28
FERRERO U.S.A., INC.’S MOTION
TO FILE UNDER SEAL

-3-

11 CV 0205 H
4475774