McMorrow et al v. Mondelez International, Inc.

Filing 168

ORDER : (10 Granting Plaintiffs' Motion to Seal 138 ; (2) Granting Defendant's Motion to Seal 144 ; and (3) Granting Plaintiff's Motion to Seal 158 . Signed by Judge Cynthia Bashant on 2/10/2021. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PATRICK MCMORROW, et al.,

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Case No. 17-cv-2327-BAS-JLB

Plaintiffs,

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v.

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(2) GRANTING DEFENDANT’S
MOTION TO SEAL (ECF
No. 144); AND

MONDELĒZ INTERNATIONAL,
INC.,

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Defendant.

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ORDER:
(1) GRANTING PLAINTIFFS’
MOTION TO SEAL (ECF
No. 138);

(3) GRANTING PLAINTIFFS’
MOTION TO SEAL (ECF
No. 158).

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Pending before the Court are the parties’ motions to file documents under seal.
(ECF Nos. 138, 144, 158.) The Court GRANTS the motions.

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I.

BACKGROUND

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Plaintiffs filed the present action against Mondelēz Global LLC (“MDLZ”),

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alleging that certain claims on MDLZ’s product packaging are misleading. (Second

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Amended Complaint, “SAC,” ECF No. 24, ¶ 114.) Plaintiffs moved to certify class,

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which the Court denied without prejudice. (ECF Nos. 70, 126.) In the process, the
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Court allowed the parties to file under seal certain related documents. (Sealing

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Order, ECF No. 115.)

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Plaintiffs renewed their motion for class certification. (ECF No. 137.) The

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parties each filed Daubert motions to strike the expert testimonies filed in support

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of, or opposition to, class certification. (ECF Nos. 147, 148, 151, 158.) The parties

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now move to file under seal portions of motions, briefs, declarations, and/or exhibits

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filed in connection with Plaintiffs’ renewed motion for class certification and the

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parties’ Daubert motions. (ECF Nos. 138, 144, 158.) The parties’ motions to seal

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are suitable for determination on the papers submitted and without oral argument.

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See Civ. L.R. 7.1(d)(1).

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II.

LEGAL STANDARD

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“[T]he courts of this country recognize a general right to inspect and copy

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public records and documents, including judicial records and documents.” Nixon v.

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Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record

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is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the

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starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.

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2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir.

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2003)). “The presumption of access is ‘based on the need for federal courts, although

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independent—indeed, particularly because they are independent—to have a measure

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of accountability and for the public to have confidence in the administration of

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justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir.

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2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).

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A party seeking to seal a judicial record bears the burden of overcoming the

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strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to

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meet this burden depends upon whether the documents to be sealed relate to a motion

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that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety,

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809 F.3d at 1102. When the underlying motion is more than tangentially related to
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the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the

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underlying motion does not surpass the tangential relevance threshold, the “good

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cause” standard applies. Id.

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“In general, ‘compelling reasons’ sufficient to outweigh the public’s interest

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in disclosure and justify sealing court records exists when such ‘court files might

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have become a vehicle for improper purposes,’ such as the use of records to gratify

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private spite, promote public scandal, circulate libelous statements, or release trade

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secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However,

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“[t]he mere fact that the production of records may lead to a litigant’s embarrassment,

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incrimination, or exposure to further litigation will not, without more, compel the

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court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal

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documents is “one best left to the sound discretion of the trial court” upon

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consideration of “the relevant facts and circumstances of the particular case.” Nixon,

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435 U.S. at 599.

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III.

ANALYSIS

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The parties move to seal portions of motions, briefs, declarations and/or

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exhibits in connection with Plaintiffs’ renewed motion for class certification and the

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parties’ Daubert motions. A motion for class certification is “more than tangentially

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related to the merits of [the] case,” and therefore “compelling reasons” must be

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shown to seal the documents attached thereto. See Krommenhock v. Post Foods,

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LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (applying the “compelling reasons”

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standard to class certification motion). Because the Daubert motions at issue are

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closely associated with the class certification motion, the Court will apply the

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“compelling reasons” standard to the motions to seal documents relevant to the

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Daubert motions. Cf. In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig.,

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686 F.3d 1115, 1120–21 (9th Cir. 2012) (applying “compelling reasons” standard to

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Daubert motions closely associated with the merits of a dispositive motion).
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A.

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Plaintiffs move to file under seal portions of their renewed motion for class

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certification and supporting declaration and exhibits. (Pls.’ Mot. to Seal, ECF No.

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138.)

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marketing research company, IRI, which Plaintiffs’ expert witness, Colin B. Weir,

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discusses in his declaration filed in support of Plaintiffs’ renewed motion for class

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certification. (Weir Decl., ECF No. 137-3.) Plaintiffs state that Weir’s declaration

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“contains unit and dollar sales information Plaintiffs received from third party

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marketing

Plaintiffs’ Motion to Seal: ECF No. 138

Plaintiffs first seek to seal financial data purchased from a third-party

research

company

IRI,

which

IRI

designated

‘HIGHLY

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CONFIDENTIAL AEO [Attorneys’ Eyes Only],’ as well as damages figures

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calculated using that IRI data.” (Pls.’ Mot. to Seal at 4; Persinger Decl. ¶ 5, ECF No.

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138-1.) Plaintiffs argue that disclosure of this information would harm IRI “by

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providing for free what IRI has expended resources collecting and charges its clients

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for” and would put it at a competitive disadvantage. (Pls.’ Mot. to Seal at 5; Persinger

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Decl. ¶ 5.) In a previous sealing order, the Court has allowed Plaintiffs to file under

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seal the same information from IRI. (Sealing Order at 4, ECF No. 115.) For the

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same reasons discussed in that Order, the Court finds compelling reasons to seal this

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information.

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Plaintiffs also seek to seal Exhibits 1–2 to the Declaration of Paul K. Joseph

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in Support of Plaintiffs’ renewed motion for class certification. These documents,

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marked as MDLZ-00061486 and MDLZ-00086676, are Defendant’s marketing,

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advertising, and consumer research that Defendant has conducted in connection with

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the products at issue. In the previous sealing order, this Court allowed sealing

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Exhibit 1, MDLZ-00061486, finding that the research provided Defendant with a

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competitive advantage in the marketplace. (Sealing Order at 3–4, ECF No. 115.)

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The same compelling reasons support sealing Exhibit 2, MDLZ-00086676, which is

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Defendant’s internal report summarizing research on marketing, advertising, and

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consumer behavior relevant to Defendant’s products. The Court finds compelling
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reasons to seal Exhibits 1–2 to the Declaration of Paul K. Joseph, marked as MDLZ-

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00061486 and MDLZ-00086676.

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renewed motion for class certification that quote from and incorporate these

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documents.

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The Court also seals portions of Plaintiffs’

The Court GRANTS Plaintiff’s motion (ECF No. 138) in full.

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B.

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Defendant seeks to file under seal portions of its opposition to Plaintiffs’

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renewed motion for class certification, its motion to exclude expert testimony, and

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various supporting exhibits. (ECF No. 144.) The exhibits Defendant seeks to seal

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are exhibits 16–20 to the Omnibus Declaration of Kate Spelman, which are a subset

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of the documents that this Court previous ordered to be maintained under seal.

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(Sealing Order at 4–5, ECF No. 115.) In that Order, the Court found that the exhibits

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at issue constitute information that gives Defendant a competitive advantage. (Id. at

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5.) Because Defendant’s present sealing request merely seeks to maintain the same

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documents under seal, the Court GRANTS Defendant’s motion (ECF No. 144) in

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full.

Defendant’s Motion to Seal: ECF No. 144

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C.

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Plaintiffs first seek to file under seal Exhibit 12 to the Fitzgerald Omnibus

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Declaration. Exhibit 12 is an internal MDLZ document, which “references internal

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marketing and consumer research that MDLZ conducted or commissioned in

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connection with the belVita products and/or statements challenged in this lawsuit.”

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(Smith Decl., ECF No. 158-1 ¶ 2.) The Court’s review of Exhibit 12 confirms that

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it constitutes internal marketing research that gives MDLZ a competitive advantage.

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The Court thus finds compelling reasons to maintain Exhibit 12 under seal.

Plaintiffs’ Motion to Seal: ECF No. 158

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Plaintiffs also seek to file under seal an unredacted copy of their reply brief

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in support of the motion for class certification. The reply brief redacts discussions
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about the documents that this Court sealed in a previous Sealing Order. Because

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compelling reasons support maintaining the underlying information under seal, the

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Court will also allow sealing the portions of the reply brief that refers to the sealed

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information.

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Finally, Plaintiffs seek to file under seal their unredacted opposition to

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MDLZ’s second motion to exclude the testimony of Plaintiffs’ expert witness, J.

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Michael Dennis. Plaintiffs have filed a redacted copy of the opposition brief,

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withholding from the public discussions of the contents of Exhibit 12 and a document

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marked MDLZ-64024, for which this Court has already found compelling reasons to

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maintain under seal. (See supraPart III.B.) Because the Court has found compelling

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reasons to seal the underlying information, the Court will allow Plaintiffs to maintain

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under seal the portions of the opposition brief discussing that information.

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The Court GRANTS Plaintiffs’ motion (ECF No. 158) in full.

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IV.

CONCLUSION

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The Court GRANTS the parties’ motions to file documents under seal (ECF

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Nos. 138, 144, 158). The Court directs the Clerk of the Court to accept and FILE

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UNDER SEAL the requested documents (ECF Nos. 139, 145, 167).

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IT IS SO ORDERED.

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DATED: February 10, 2021

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