Hohenberg v. Ferrero USA, Inc

Filing 84

MOTION to File Documents Under Seal (With attachments)(Fitzgerald, John) Modified on 10/21/2011 atty contacted re: proposed orders not e-filed(leh).

1 THE WESTON FIRM
GREGORY S. WESTON (239944)
2 [e-mail]
3 JACK FITZGERALD (257370)
[e-mail]
4 MELANIE PERSINGER (275432)
[e-mail]
5 COURTLAND CREEKMORE (182018)
[e-mail]
6 1405 Morena Blvd., Suite 201
7 San Diego, CA 92110
Telephone:
[phone]
Facsimile: [phone]
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LAW OFFICES OF RONALD A. MARRON,
APLC
RONALD A. MARRON (175650)
[e-mail]
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone:
[phone]
Facsimile:
[phone]

Interim Class Counsel

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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IN RE FERRERO LITIGATION

Case No.. 3:11-cv-00205-H-CAB
Pleading Type: Class Action
Action Filed: February 01, 2011

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PLAINTIFFS’ APPLICATION TO FILE UNDER
SEAL THE UNREDACTED VERSION OF
PLAINTIFFS’ REPLY IN SUPPORT OF CLASS
CERTIFICATION, THE UNREDACTED VERISON
OF THE DECLARATION OF MELANIE
PERSINGER IN SUPPORT OF CLASS
CERTIFICATION, AND UNREDACTED PORTIONS
OF EXHIBITS 1-2 ATTACHED THERETO
Judge: Hon. Marilyn L. Huff
Date: November 7, 2011
Time: 10:30 a.m.
Location: Courtroom 13

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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:
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PLEASE TAKE NOTICE that Plaintiffs hereby apply for an order allowing them to file under seal

3 the unredacted versions of Plaintiffs’ Reply in Support of Class Certification, the Declaration of Melanie
4 Persinger and Exhibits 1-2 attached thereto in accordance with Local Rule 79.2.
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BACKGROUND

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

7 parties to designate information as “Confidential . . . if, in the good faith belief of such party and its counsel,
8 the unrestricted disclosure of such information could be potentially prejudicial to the business or operations
9 of such party.” Under the Protective Order, the parties have agreed to apply to file such confidential
10 information under seal. See Protective Order at ¶ 12. Because Plaintiffs’ Reply in Support of Plaintiffs’
11 Motion for Class, the Declaration of Melanie Persinger and Exhibits 1-2 attached thereto contain copies and
12 discussions of documents designated by Defendant and third-party Connie Evers (who was acting under the
13 Protective Order) as confidential, Plaintiffs hereby apply to file these documents under seal. Additionally,
14 Plaintiffs offer the following explanation as to “why any particular statement or portions of the exhibits [ ]
15 may warrant sealing.” In re Ferrero Litig., 2011 U.S. Dist. LEXIS 85238, at *5 (S.D. Cal. Aug. 3, 2011).
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ARGUMENT

17 I.
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LEGAL STANDARD
“[T]he Supreme Court recognize[s] a federal common law right ‘to inspect and copy public records and

19 documents.’ This right extends to pretrial documents filed in civil cases . . . .”Foltz v. State Farm Mut. Auto.
20 Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v. Warner Communications, 435 U.S. 589, 597
21 (1978)). As such, there is “a strong presumption in favor of access to court records,” id. at 1135 (citation
22 omitted), unless the documents are “among those which have ‘traditionally been kept secret for important
23 policy reasons,’” id. at 1134 (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.
24 1989)).
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“A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption

26 by meeting the compelling reasons standard. That is, the party must articulate compelling reasons supported
27 by specific factual findings, . . . that outweigh the general history of access and the public policies favoring
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In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB
PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL

1 disclosure, such as the public interest in understanding the judicial process.” Kamakana v. City & Cnty of
2 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations and quotation marks omitted).
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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.

8 Foltz, 331 F.3d at1135 (citations omitted); see also Kamakana, 447 F.3d at 1179 (“In general, ‘compelling
9 reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist when
10 such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to gratify
11 private spite, promote public scandal, circulate libelous statements, or release trade secrets.”).
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Moreover, there is an exception to the presumption of access to court records for documents attached

13 to a non-dispositive motion and filed under seal pursuant to a valid protective order. Foltz, 331 F.3d at 1135
14 (“‘when a party attaches a sealed discovery document to a nondispositive motion, the usual presumption of
15 the public's right of access is rebutted.’ . . . [T]he presumption of access [is] rebutted because ‘when a court
16 grants a protective order for information produced during discovery, it already has determined that “good
17 cause” exists to protect this information from being disclosed to the public by balancing the needs for
18 discovery against the need for confidentiality.’” (quoting Phillips v. GMC, 307 F.3d 1206, 1213 (9th Cir.
19 2002))).
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BECAUSE PLAINTIFFS HAVE SHOWN GOOD CAUSE FOR SEALING THESE

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DOCUMENTS, THE COURT SHOULD GRANT THEIR APPLICATION TO FILE UNDER

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SEAL

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A.

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The following portion of Exhibit 2 to the Declaration of Melanie Persinger discusses the formulation

The Formulation Of Nutella

25 of Nutella:
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•

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The contents of Nutella are a trade secret, disclosure of which would allow Ferrero’s competitors to

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Persinger Decl., Ex. 2, Kreilmann Dep. Tr. 81:5-83:13: Discussing the formulation of Nutella.

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

1 offer the same product under their label, thus causing substantial harm to Ferrero’s business. Good cause
2 thus exists for sealing any information relating to the formulation of Nutella. See, e.g., Kamakana, 447 F.3d
3 at 1179 (“[C]ompelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing
4 court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as the . .
5 . release [of] trade secrets.”).
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B.

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The following exhibit and portions of Plaintiffs’ Reply and the Declaration of Melanie Persinger

Ferrero’s Marketing Strategy

8 discuss Ferrero’s confidential marketing strategies:
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Persinger Decl. ¶ 4: showing and discussing content from Evers Dep. Tr., 163:7-12, and
248:23-249:6.

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Persinger Decl., Ex. 1, Evers Dep. Tr. 162:1-165:25, 163:7-12, and 248:23-149:6.

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Reply page 8, line 5 and lines 7-8: discussing information derived from the Kreilmann

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declaration (¶ 20), which Ferrero requested, and the Court subsequently ordered, be filed

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under seal. See Dkt. Nos. 73, 78.

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

16 would harm Defendant’s ability to compete in the marketplace. Disclosure would allow Ferrero’s
17 competitors to learn the details of and imitate its effective marketing strategies, which cost Ferrero millions
18 of dollars to develop and implement. Thus, Ferrero’s competitors would be saved the costs of researching
19 and developing a marketing strategy of their own, thereby putting Ferrero at a substantial financial and
20 competitive disadvantage.
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CONCLUSION

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For the reasons discussed above, the Court should grant Plaintiffs’ Application to File Under Seal the

23 Reply in Support of Plaintiffs’ Motion for Class Certification, the Declaration of Melanie Persinger and
24 Exhibits 1-2 attached thereto. Plaintiffs will also electronically file public versions of their Reply and the
25 Declaration of Melanie Persinger with confidential information and exhibits redacted.
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In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB
PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL

1 Dated: October 21, 2011

Respectfully submitted,

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/s/ Jack Fitzgerald

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THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
COURTLAND CREEKMORE
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: [phone]
Facsimile: [phone]

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LAW OFFICES OF RONALD A. MARRON, APLC
RONALD A. MARRON
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone: [phone]
Facsimile: [phone]

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Interim Class Counsel

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