BOEHRINGER INGELHEIM PHARMA GMBH & CO. KG et al v. MYLAN PHARMACEUTICALS INC.
OPINION. Signed by Judge Noel L. Hillman on 4/22/2015. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BOEHRINGER INGELHEIM PHARMA
GMBH & CO. KG, et al.,
Civil No. 14-4727 (NLH/KMW)
MYLAN PHARMACEUTICALS, INC.,
Charles Michael Lizza, Esquire
Sarah Ann Sullivan, Esquire
William C. Baton, Esquire
Saul Ewing, LLP
One Riverfront Plaza
Newark, New Jersey 07102-5490
Eric W. Dittmann, Esquire
Paul Hastings LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Jason Todd Christiansen, Esquire
Paul Hastings Janofsky & Walker LLP
1000 Louisiana Street
Houston, Texas 77002
Attorneys for Plaintiffs
Arnold B. Calmann, Esquire
Jeffrey S. Soos, Esquire
Katherine Ann Escanlar, Esquire
One Gateway Center
Newark, New Jersey 07102-5311
George John Barry, III, Esquire
McGuire Woods LLP
1170 Peachtree Street NE
Atlanta, Georgia 30309
Michael Lloyd Binns, Esquire
McGuire Woods LLP
1230 Peachtree Street, NE
Atlanta, Georgia 30309
Attorneys for Defendants
HILLMAN, District Judge:
Presently before the Court is a motion filed by Defendant
Mylan Pharmaceuticals Inc. (hereafter, “MPI”) pursuant to Local
Civil Rule 5.3 seeking an Order to Seal certain portions of a
brief and declaration submitted in connection with MPI’s motion
The Court has considered MPI’s submission, no
opposition having been filed by Plaintiffs, and has decided this
matter pursuant to Fed. R. Civ. P. 78.
For the reasons that
follow, MPI’s motion is granted.
This civil action concerns a United States Patent and
arises under the Patent Laws of the United States, 35 U.S.C. §
100 et seq. and the Declaratory Judgment Act, 28 U.S.C. §§ 220102.
The Court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1338(a).
Plaintiffs generally alleged in the
original complaint that MPI submitted an Abbreviated New Drug
Application for a drug claimed in a patent that is owned by
Plaintiffs before the expiration of the patent.
MPI moved to dismiss the original complaint for lack of
In support of the motion, MPI submitted
a brief and the Declaration of Robert Tighe (hereafter, “Tighe
Although the motion to dismiss was withdrawn
upon Plaintiffs’ filing of an amended complaint, 1 the documents
submitted in support of the motion remain on the docket.
brief and Tighe Declaration contain purportedly highly
proprietary financial data regarding sales and revenue
information of MPI and its parent company, Mylan Inc.
Accordingly, MPI seeks to have those portions of the brief and
Tighe Declaration that contain such information sealed.
The Court notes that MPI, as well as new defendants added
pursuant to the amended complaint, have moved for dismissal of
the amended complaint based on an alleged lack of personal
jurisdiction. Motions to seal certain submissions filed in
connection with that motion to dismiss are currently pending
before the Court and will be addressed by separate Order and
STANDARD FOR SEALING UNDER L. CIV. R. 5.3(c)
In this District, Local Civil Rule 5.3 governs all motions
to seal or otherwise restrict public access to materials
filed with the Court and judicial proceedings themselves.
rule provides that in order to place a docket entry under seal,
the motion to seal must be publicly filed and “shall describe
(a) the nature of the materials or proceedings at issue, (b) the
legitimate private or public interests which warrant the relief
sought, (c) the clearly defined and serious injury that would
result if the relief sought is not granted, and (d) why a less
restrictive alternative to the relief sought is not available.”
L. Civ. R. 5.3(c)(2).
The party moving to seal must submit a
proposed order that contains proposed findings of fact and
conclusions of law.
The Court has reviewed the documents that are the subject
of MPI’s motion to seal and concludes that sealing is warranted
at this time.
As an initial matter, the Court notes that while
litigants have an interest in privacy, the public also has a
right to obtain information about judicial proceedings.
v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1995).
order to rebut the presumption of public access, the party
seeking confidentiality must demonstrate “good cause” by
establishing that disclosure will cause a “‘clearly defined and
serious injury to the party seeking closure.’”
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.
“‘Broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning,’ do not support a
good cause showing.”
Id. (quoting Cipollone v. Liggett Group,
Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S.
976, 108 S. Ct. 487, 98 L. Ed. 2d 485 (1987)).
Here, MPI seeks to seal only two sentences in its brief and
one paragraph in the Tighe Declaration. 2
These documents contain
information concerning financial data, including sales and
revenue, of MPI and its parent company.
In support of the
motion to seal, MPI has submitted a Declaration from Andrea
Tiglio, Ph.D., Esq., Global Patent Litigation Counsel for Mylan,
According to the declaration, the information relating to
MPI’s and Mylan Inc.’s sales and revenue is confidential and
proprietary, and MPI and Mylan Inc. would suffer serious
commercial injury if such information became available to the
The declaration further recounts the highly competitive
nature of the pharmaceutical industry, and it is represented
that MPI and Mylan Inc.’s competitive position in the
In particular, MPI seeks to seal the first and second sentences
of the first full paragraph on page 7 of its brief, as well as
paragraph 5 of the Tighe Declaration.
marketplace would be adversely affected and seriously damaged by
disclosure of their financial data.
The Court finds that the factors set forth in L. Civ. R.
5.3(c) are satisfied.
The information to be sealed is non-
public business information, disclosure of which will pose a
risk of harm to MPI’s competitive position in the marketplace.
In particular, if such information becomes public, competitors
could develop strategies that undercut MPI’s or Mylan Inc.’s
Furthermore, less restrictive alternatives are not
available, as MPI seeks to seal only two sentences in its brief
and one paragraph in the Tighe Declaration that discuss MPI and
Mylan Inc.’s confidential financial data.
All other portions of
the brief and declaration will be publicly available. 3
balancing the potential injury to MPI or Mylan Inc. if their
financial data becomes publicly available versus the public
interest in access to judicial proceedings, the Court finds good
cause for granting MPI’s motion to seal, particularly where
MPI’s submissions, with only limited redactions, will be
Although not expressly stated by MPI, the Court assumes that in
seeking to seal limited portions of the brief and Tighe
Declaration, MPI intends to file these documents on the public
docket with only the relevant information redacted.
For the reasons set forth above, the Court finds that
sealing under Local Civil Rule 5.3(c) is appropriate with
respect to the limited portions of MPI’s brief and the Tighe
Declaration identified herein.
An Order consistent with this Opinion will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: April 22, 2015
At Camden, New Jersey
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