Glass Dimensions, Inc. v. State Street Bank & Trust Co.

Filing 354

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE:PLAINTIFF GLASS DIMENSIONS, INC.S MOTION TO UNSEAL THE RECORD (DOCKET ENTRY # 255) is DENIED with respect to the portion of the motion that remains subject to dispute by the parties. The motion is otherwise DENIED as moot in light of the parties agreement. (Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GLASS DIMENSIONS, INC.,
on behalf of the Glass
Dimensions, Inc. Profit
Sharing Plan and Trust,
and all others similarly
situated,
Plaintiffs,
v.

CIVIL ACTION NO.
10-10588-FDS

STATE STREET CORPORATION,
STATE STREET BANK & TRUST CO.,
and STATE STREET GLOBAL ADVISORS,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFF GLASS DIMENSIONS, INC.’S
MOTION TO UNSEAL THE RECORD
(DOCKET ENTRY # 255)
December 3, 2013

BOWLER, U.S.M.J.
Pending before this court is the above styled motion in this
class action securities litigation case alleging violations of
the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. §§ 1001 et seq.

After conducting a hearing on November

25, 2013, this court took the motion (Docket Entry # 255) under
advisement.
By agreement, the parties have resolved a significant
portion of their dispute.
Excel spreadsheet.

They continue to dispute unsealing an

They also continue to disagree about

redacting investment management or “all-in” fees, average fee

splits and other proprietary information in certain designated
documents.

(Docket Entry # 283).

All of the foregoing sealed

and redacted material is subject to a stipulated protective
order.
Plaintiff Glass Dimensions, Inc., on behalf of the Glass
Dimensions, Inc. Profit Sharing Plan and Trust and all others
similarly situated (“plaintiff”), seeks to disseminate the
information to class members to keep them informed as well as to
foster their ability to decide whether to opt out of the class.
(Docket Entry # 256).

Plaintiff also submits that members of the

public consisting of participants in the ERISA retirement plans
“will be affected by the outcome of this case” and that
“institutional and individual investors engaged in securities
lending throughout the country have an interest in the facts
underlying the claims.”

(Docket Entry # 256).
DISCUSSION

With the exception of one category of documents (Docket
Entry # 283, ¶ IV), the spreadsheet and the documents with the
redacted “all-in” fees, average fee splits and other proprietary
information are either exhibits or contained in other filings
submitted to support or oppose summary judgment motions or
motions to strike.

Hence, they constitute “judicial documents”

subject to a common law right of access.

See U.S. v. Kravetz,

706 F.3d 47, 54 (1st Cir. 2013) (“judicial records” subject to

2

common law right of access “are those materials on which a court
relies in determining the litigants’ substantive rights”)
(emphasis added); Siedle v. Putnam Investments, Inc., 147 F.3d 7,
10 (1st Cir. 1998).
Weighing and balancing all of the pertinent factors,
including the ability of class members to make informed
decisions, the information shall remain under seal and redacted.
Defendants State Street Corporation, State Street Bank & Trust
Co. and State Street Global Advisors (“State Street”) have a
legitimate and significant interest in protecting the sensitive
business information in the spreadsheet1 and in protecting the
redacted information in the various documents.2

Maintaining the

spreadsheet under seal and continuing the redaction of the
foregoing information will avoid the serious competitive injury
that dissemination would more than likely entail.

See Kravetz,

706 F.3d at 62; In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir.
2005) (recognizing that “‘sources of business information that
might harm a litigant’s competitive standing’” may outweigh

1

The information consists of agency lending clients’
assets and negotiated securities lending fee splits with such
clients.
2

The redacted information consists of “all-in” fees with
prospective or current investors in the lending funds; average
fee splits negotiated with clients and certain segments of
clients; and securities lending fee splits negotiated with “top
10” clients and such clients’ assets. (Docket Entry ## 283 &
284).
3

common law right of access) (quoting Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978)).

Declarations by

two officials employed by State Street establish the sensitive
and confidential nature of the information and provide a
particularized showing of the presence of commercial harm.
(Docket Entry ## 284 & 285).

Redacting the spreadsheet is not a

viable means to adequately safeguard the information therein and
avoid the competitive injury.

In addition, State Street relied

on the terms of the protective order in disclosing the
information.

The privacy interests of third parties, such as the

investors in the lending funds, also weigh in favor of retaining
confidentiality.
As to the First Amendment argument, “parties have general
first amendment freedoms with regard to information gained
through discovery and . . . absent a valid court order to the
contrary, they are entitled to disseminate the information as
they see fit.”

Public Citizen v. Liggett Group, Inc., 858 F.2d

775, 780 (1st Cir. 1988) (citing Seattle Times Co. v. Rhinehart,
467 U.S. 20, 31–36 (1984)).
a valid protective order.

Here, the information is subject to
Considering the two complimentary

considerations that apply, see Kravetz, 706 F.3d at 54
(reiterating the two considerations that adhere to First
Amendment analysis), the material is historically not subject to
public access and access to the material does not play a positive

4

role that is significant in the functioning of the process at
issue in the case at bar.
The remaining category of disputed documents under seal
(Docket Entry # 283, ¶ IV) consists of documents that are not
subject to a common law right of access for reasons explained by
State Street (Docket Entry # 283, ¶ IV(A)).

See Kravetz, 706

F.3d at 54-55 (distinguishing judicial records “from those that
“relate merely to the judge’s role in management of the trial”
and therefore “‘play no role in the adjudication process’”)
(internal brackets omitted); In re Boston Herald, Inc., 321 F.3d
174, 189-190 (1st Cir. 2003); In re Providence Journal, 293 F.3d
1, 9-10 (1st Cir. 2002).

They are likewise not subject to

dissemination under the First Amendment.

As such, they may

remain under seal at this time.
CONCLUSION
In accordance with the foregoing discussion, the motion to
unseal (Docket Entry # 255) is DENIED with respect to the portion
of the motion that remains subject to dispute by the parties.
The motion is otherwise DENIED as moot in light of the parties’
agreement.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

5

6