CHINA FALCON FLYING LIMITED v. DASSAULT FALCON JET CORP.

Filing 90

OPINION. Signed by Magistrate Judge Michael A. Hammer on 8/29/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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DASSAULT FALCON JET CORP.,
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Defendant.
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CHINA FALCON FLYING LIMITED,

Civil Action No. 15-6210 (KM)

OPINION

HAMMER, United States Magistrate Judge

This matter comes before the Court on Defendant Dassault Falcon Jet Corporation’s
motion to seal six documents in full and portions of thirty-three other documents pursuant to L.
Civ. R. 5.3(c). 1 See Mot. to Seal, D.E. 67. All of the documents Defendant seeks to seal or redact
were submitted by the parties in connection with Plaintiff China Falcon Flying Limited’s motion
for leave to file an amended complaint. Id.

Plaintiff opposes the motion. The Court has

considered the submissions in support of, and in opposition to, the motion. Pursuant to Federal
Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court decided this motion without oral
argument. For the reasons set forth below, the Court will grant Defendant’s motion.

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The documents Defendant seeks to redact or seal in their entirety are: (1) Plaintiff’s brief in
support of its motion for leave to amend, D.E. 57; (2) Declaration of Andrea Titone in support of
Plaintiff’s motion for leave to amend and Exhibits A, D, F-L and Q thereto, D.E. 57; (3)
Defendant’s opposition brief, D.E. 59; (4) Exhibits 1, 3-4, 6, 8-14, and 18 to the Declaration of
Benjamin R. Wilson in opposition to Plaintiff’s motion for leave to amend, D.E. 58; (5) Plaintiff’s
reply brief, D.E. 60; (6) Declaration of Andrea Titone in support of Plaintiff’s reply and Exhibits
A, I-M, Q, and S-U thereto, D.E. 60; (7) Defendant’s sur-reply brief, D.E. 65; and (8) Exhibit 1 to
Declaration of Benjamin R. Wilson in support of Defendant’s sur-reply, D.E. 64.
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I.

BACKGROUND
In or around 2009, Defendant retained Plaintiff for the purpose of facilitating and brokering

sales of Defendant’s Falcon Jets to buyers in China. Am. Compl. ¶¶6-8, D.E. 78. At that time,
the parties entered into a Finder’s Fee Agreement which provided that Plaintiff would be owed
certain commissions based on the successful consummation of Falcon Jet sales brokered by
Plaintiff. Id. ¶¶9-30. Plaintiff alleges that Defendant breached the contract by refusing to pay the
proper commission on six separate sales of Falcon Jets. Id. ¶¶31-61. Plaintiff initiated this action
on August 14, 2015 in a four count Complaint alleging: (1) Breach of Contract; (2) Breach of
Implied Covenant of Good Faith and Fair Dealing; (3) Quantum Meruit; and (4) Unjust
Enrichment. Compl. ¶22-39, D.E. 1.
On January 27, 2017, Plaintiff filed a motion for leave to amend the Complaint. 2 See Mot.
to Amend, D.E. 56. Defendant opposed the motion. The parties submitted voluminous materials
in support of, and in opposition to, the motion to amend. On March 27, 2017, Defendant filed the
present motion to seal the entirety of certain documents and portions of other documents submitted
by the parties in relation to Plaintiff’s motion to amend. D.E. 67.
Defendant seeks to seal five categories of information: (1) detailed pricing information
on relevant Falcon Jet aircrafts, (2) contracts between Defendant and third parties which contain
confidentiality provisions, (3) finder’s fee agreements between Defendant and Plaintiff and the
amounts paid to Plaintiff pursuant to these agreements, (4) Defendant’s net income statement for
aircraft that are subject to the Amended Complaint, and (5) transactional information between
Defendant and a third party, Minsheng Financial Leasing Co, Ltd (“Minsheng”). See Br. in Supp.

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In an Order dated June 2, 2017, the Court granted Plaintiff’s motion for leave to file an amended
complaint. D.E. 77.
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of Mot. to Seal at 1-2, D.E. 68; see also Index in Supp. of Mot. to Seal, D.E. 67-4. Defendant
claims that disclosure of this information, which has never been previously available to the public,
“could seriously impair and injure DFJ’s competitive position in the marketplace.” Br. in Supp.
of Mot. to Seal at 2, D.E. 68.
Plaintiff has opposed this motion, arguing that the Defendant’s conclusory statements made
in support of its motion to seal are insufficient to meet the particularity requirement of L. Civ. R.
5.3(c). Pl.’s Br. in Opp. to Mot. to Seal at 1, D.E. 70. Furthermore, Plaintiff argues that Defendant
has failed to illustrate a sufficient harm that would result if the documents were not sealed, and
that Defendant’s proposal to completely seal six documents is not the least restrictive method
available. Id. at 6.

II.

DISCUSSION
It is well settled that there is a “a common law public right of access to judicial proceedings

and records.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). Therefore, when a moving
party seeks an order sealing court records, it must demonstrate that “good cause” exists to
overcome the presumption in favor of public access. Securimetrics, Inc. v. Iridian Techs., Inc.,
Civ. No. 03-4394, 2006 WL 827889 (D.N.J. Mar. 30, 2006). Typically, a motion to seal is granted
when the moving party’s private interest to seal documents outweighs the public’s interest in
disclosing the information. See CDK Global LLC v. Tulley Auto Grp., Inc., Civ. No. 15-3103,
2017 WL 870400, *4 (D.N.J. Mar. 3, 2017). In this District, the Court looks to L. Civ. R. 5.3 to
determine whether a movant has demonstrated “good cause.” L. Civ. R. 5.3(c) directs that a Court
must consider the following four factors:
(a) the nature of the materials or proceedings at issue;

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(b) the legitimate private or public interest 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;
In the present motion to seal, Defendant has satisfied all four factors, each of which will be
discussed in turn below. As such, the Court will grant Defendant’s motion to seal.

A. The Nature of the Materials or Proceedings at Issue
To demonstrate the first factor, Defendant is required to provide a detailed description of
the documents it wishes to seal. See Horizon Pharma AG v. Watson Laboratories Inc., Civ. No.
13-5124, 2015 WL 12859244, *1 (D.N.J Sept. 14, 2015).
In this case, Defendant has provided a sufficient and detailed description of the nature of
the documents it wishes to seal. As noted above, Defendant wishes to seal five specific categories
of documents: (1) detailed pricing information on relevant Falcon Jet aircraft, (2) contracts
between Defendant and third parties which contain confidentiality provisions, (3) finder’s fee
agreements between Defendant and Plaintiff and the amounts paid to Plaintiff pursuant to these
agreements, (4) DFJ’s net income statement for aircrafts that are subject to the Amended
Complaint, and (5) transactional information between Defendant and Minsheng. See Br. in Supp.
of Mot. to Seal at 1-2, D.E. 68; see also Index in Supp. of Mot. to Seal, D.E. 67-4.
Defendant describes this information as “non-public business and financial information”
and highly confidential materials that are unique to Defendant’s business practices. Declaration
of Robert H. Gogerty in Supp. of Mot. to Seal ¶4-5 (“Gogerty Decl.”), D.E. 67-1. In support of

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its motion, Defendant included a detailed thirty-one-page index which clearly identifies each piece
of information that Defendant wishes to seal. See Index in Supp. of Mot. to Seal, D.E. 67-4.

A. The Legitimate Private or Public Interest Which Warrant the Relief Sought
and the Clearly Defined and Serious Injury that Would Result if the Relief
Sought Is Not Granted
Courts in this District have consistently determined that “the confidentiality of business
agreements, trade secrets or commercial information [is] a legitimate private interest and the
disclosure of this information can be used for the improper purpose of causing harm to the litigant's
competitive standing in the marketplace.” Goldenberg v. Indel, Inc., Civ. No. 09-5202, 2012 WL
15909, *3 (D.N.J. Jan. 3, 2012); see also Bracco Diagnostics, Inc. v. Amersham Health, Inc., Civ.
No. 03-6025, 2007 WL 2085350, *5 (D.N.J. July 18, 2007) (finding that [m]aintaining
competitiveness is a legitimate private interest which warrants sealing); see also Mars, Inc. v.
JCM Am. Corp. Civ. No. 05-3165, 2007 WL 496816, *2 (D.N.J. Feb. 13, 2007) (finding a
legitimate privacy interest in sealing a “confidential business agreement not otherwise available to
the public” when public disclosure of the information could have negatively affected the moving
party’s “negotiating position in its business”). This Court agrees that there is a legitimate private
interest in keeping confidential business agreements and sensitive pricing information
confidential. Public disclosure of such materials could, in theory, damage the disclosing party’s
competitive standing in the marketplace.
The Defendant, as the movant, must establish that absent sealing the materials, it will suffer
a clearly defined and serious injury. Defendant relies chiefly on the declaration of Robert Gogerty,
Defendant’s former treasurer for the relevant time period.

Mr. Gogerty provides multiple

examples of the injuries that would result if the Court were to deny the present motion. See

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Gogerty Decl., D.E. 67-1. First, according to Mr. Gogerty, disclosure of Defendant’s Falcon Jet
sale prices would allow prospective customers to use those prices to leverage a lower sale price
for a similar Falcon Jet. Id. ¶7. Second, Mr. Gogerty observes that the disclosure of the finder’s
fees agreements and payments involving Plaintiff’s services could result in other finders
demanding more favorable finder’s fee rates and terms and conditions from Defendant. Id. ¶¶1113. Third, the disclosure of purchase agreements with third parties and the net income statement
for aircraft sales would enable Defendant’s competitors to use that pricing information to gain a
competitive edge over Defendant in the marketplace by offering Defendant’s customers more
favorable sale prices and terms and conditions for similar aircrafts. Id. ¶¶8-9. Finally, Mr. Gogerty
represents that disclosure of specific transactional information between Defendant and Minsheng,
one of Defendant’s “main aircraft purchasers in China,” would allow competitors to learn how
Defendant structures its commercial transactions with third parties. Id. ¶10.
All of these examples constitute clearly defined and serious injuries which would result if
the Court were to deny Defendant’s sealing motion. This Court has recognized that a moving
party’s loss of competitive standing in the current market is the type of serious injury that calls for
the protection of confidential material. See Goldenberg, 2012 WL 15909 at *4 (finding that a
competitor’s ability to review financial information pertaining to one’s business would give those
competitors an unfair advantage in the marketplace). Therefore, the Court finds that this factor
also weighs in favor of granting Defendant’s motion.
B. Why A Less Restrictive Alternative to the Relief Sought Is Not Available
Lastly, a less restrictive alternative to the relief sought by Defendant is not available. Of
the thirty-nine documents that contain confidential information submitted by the parties in relation
to Plaintiff’s motion to amend, Defendant seeks to fully seal six documents. Of the other thirty-

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three other documents containing confidential information, Defendant proposes minimal and
tailored redactions. The Court has reviewed Defendant’s proposed redactions and has considered
each of the six documents Defendants wishes to fully restrict from public access, and concludes
that the items to be sealed are limited to those containing sensitive and confidential business
information. Although Plaintiff argues that completely sealing six documents is overly restrictive,
this Court finds such protection to be necessary. See Pl.’s Br. in Opp’n to Mot. at 8, D.E. 70. The
six documents which Defendant seeks to seal in their entirety include confidential agreements
between Defendant and its third party clients, confidential finder’s fees and sales representation
agreements between the parties, and Defendant’s net income statements. See Exhs. D, F to Titone
Decl, D.E. 57-5, 57-7; Exhs. 1, 3 to Wilson Decl., D.E. 58-1, 58-3; Exhs. T, U to Titone Reply
Decl., D.E. 60-21, 60-22. Those six documents as a whole contain sensitive and confidential
information, and therefore, “redaction is not a viable alternative to sealing” the documents in full.
See CDK Global LLC, 2017 WL 870400 at *4.

III.

CONCLUSION
For the foregoing reasons, the Court will grant Defendant’s motion to seal. D.E. 67.

s/Michael A. Hammer_________________
UNITED STATES MAGISTRATE JUDGE
Dated: August 29, 2017

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