UNITED STATES OF AMERICA v. H&R BLOCK, INC. et al

Filing 94

MOTION for Order to File Under Seal by 2SS HOLDINGS, INC., H&R BLOCK, INC., TA IX L.P. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Roush, Corey)

J. Robert Robertson
Corey W. Roush
HOGAN LOVELLS US LLP
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004-1109
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
Plaintiff,
v.
H&R BLOCK, INC.,
2SS HOLDINGS, INC., and
TA IX L.P.
Defendants.

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Civil Action No. 1:11-cv-00948 (BAH)
Judge Beryl A. Howell

DEFENDANTS’ MOTION TO SEAL DEFENDANTS’ POST-TRIAL MEMORANDUM
OF POINTS AND AUTHORITIES IN OPPOSITION TO PERMANENT INJUNCTION
Defendants H&R Block, Inc. (“HRB”), 2SS Holdings, Inc. (“2SS”), and TA IX
L.P. (“TA IX”) (collectively, “Defendants”), pursuant to the Protective Order entered by the
Court on June 15, 2011, Local Rule 5.1, and Federal Rule of Civil Procedure 5.2(d), respectfully
move the Court to seal Defendants’ Post-Trial Memorandum of Points and Authorities in
Opposition to Plaintiff’s Motion for Permanent Injunction (“Post-Trial Memorandum”).
Defendants’ Post-Trial Memorandum contains and discusses documents that have

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been designated “Confidential” and “Highly Confidential” pursuant to the Protective Order. The
Post-Trial Memorandum also contains competitively-sensitive non-public business information
the dissemination of which would reveal Defendants’ essential business strategy, cost structure,
and competitive forecasts. In other words, the information contained in the Post-Trial
Memorandum is “of a private character, diluting [its] role as public business,” EEOC v. National
Children’s Center, Inc., 98 F.3d 1406, 140 (D.C. Cir. 1996), and disclosure would cause great
harm to Defendants.
Moreover, the factors enunciated by the District of Columbia Court of Appeals in
Johnson v. Greater Southeastern Community Hospital, 951 F.2d 1268, 1277 n.14 (D.C. Cir.
1991), weigh in favor of granting Defendants’ motion to file the exhibits under seal. The factors
the Court must consider are:
(1) the need for public access to the documents at issue; (2) the
extent of previous public access to the documents; (3) the fact that
someone has objected to disclosure, and the identity of that person;
(4) the strength of any property and privacy interests asserted; (5)
the possibility of prejudice to those opposing disclosure; and (6)
the purposes for which the documents were introduced during the
judicial proceedings.
Id.

All the factors implicated by this motion weigh in favor of sealing

Defendants’ filing.
First, the material submitted in the Post-Trial Memorandum is Defendants’ and
third parties’ confidential business information. This information has not been disclosed to the
public, nor should it ever be. Much of it was revealed during trial in camera. In entering the
protective order and sealing the courtroom, the Court has already acknowledged the strong
private interests at stake—the business of tax preparation services is highly competitive, and
disclosure of Defendants’ advertising, discounting, and client acquisition strategies to another

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competitor would harm Defendants’ business prospects and competitive viability. Harm is not
limited to Defendants, however. Public disclosure of third-parties’ confidential competitive
information discussed in the Post-Trial Memorandum would similarly harm the business
objectives of those parties.
The public interest, too, weighs in favor of sealing the filing. The documents
relied upon in the Post-Trial Memorandum were almost exclusively produced as part of a
government investigation. Publicly disclosing the information would discourage full and frank
participation in government investigations, chilling future government investigatory capabilities.
Indeed, the public interest in reviewing court proceedings will be amply satisfied by the redacted
version of the exhibits, to be filed in the coming days.
Last, the Post-Trial Memorandum have not been disclosed to the public and are
being disclosed to the Court only because they are necessary to Defendants’ defense—
Defendants have not brought their confidential business strategies, financial records, or emails
into contention by choice, but Defendants now have no choice but to rely on their confidential
information to prepare an adequate defense.
The remaining factors are not at issue, as no party has challenged the sealing of
the exhibits in this case. Accordingly, all pertinent factors weigh in favor of sealing Defendants’
Post-Trial Memorandum. The Court should grant Defendants’ motion to seal Defendants’ PostTrial Memorandum.

Respectfully Submitted,

Dated: September 28, 2011

___s/Corey W. Roush____________

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J. Robert Robertson
Corey W. Roush
HOGAN LOVELLS US LLP
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004-1109
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

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