Fossil Group, Inc. et al v. Angel Seller LLC et al
Filing
387
ORDER: For the reasons stated in the attached Order, the parties' motions to seal (ECF Nos. 384, 385, 386) are granted in part and denied in part. As noted, the parties are granted leave to provide further authority for their requests to seal ce rtain documents and/or submit proposed redactions by filing a supplemental motion to seal by 5/16/2024 as to specific documents identified in the Order. Absent any supplemental submissions, the parties are directed to publicly file public ver sions of their motion paperwork by 5/20/2024, consistent with the rulings contained in the attached Order. The parties are respectfully directed to coordinate their filing so that all documents related to each motion are filed in sequentia l order. Moreover, when filing, the parties are directed to make clear in the docket text which publicly-filed, redacted document relates to which sealed document, and vice-versa, and the original ECF Number for the document when it was first filed. When filing exhibits, counsel must indicate the original ECF Number in the description of the document. Failure to strictly abide by these guidelines may result in the entire motion being stricken from the docket, with leave to refile properly. Ordered by Magistrate Judge Taryn A. Merkl on 5/9/2024. (ALG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FOSSIL GROUP, INC. et al.,
Plaintiffs,
ORDER
20-CV-2441 (HG) (TAM)
(Not for publication)
-againstANGEL SELLER LLC et al.,
Defendants.
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TARYN A. MERKL, United States Magistrate Judge:
WHEREAS, on April 5, 2024, Plaintiffs filed a fully briefed summary judgment
motion with voluminous exhibits, (see Pls.’ Mot. for Summ. J., ECF No. 382), together
with a motion to seal and a supporting memorandum seeking to file portions of their
motion and Defendants’ summary judgment filings under seal, (see Pls.’ Mot. to Seal,
ECF No. 384; Pls.’ Mem. in Supp., ECF No. 384-1); and Defendants filed a motion for
leave to file under seal their fully briefed motion for summary judgment, (see Defs.’
Mot. for Leave to File Under Seal, ECF No. 385), together with a memorandum in
support of their motion to seal excerpts of both summary judgment motions, (see Defs.’
Mem. in Supp., ECF No. 386);1
The Court notes that where the parties’ summaries of their sealing requests (ECF Nos.
384-2, 385, 386) conflict with the parties’ highlighting in grey or teal, only the specific proposed
redactions marked in grey or teal highlighting have been considered by the Court, except where
the parties proposed that the entire document be filed under seal. For example, while
Defendants’ summary (ECF No. 386, at 3) noted an intent to seal responses to paragraphs 63–69,
116–117, 145, 146, 148, and 149 in Defendants’ response to Plaintiffs’ 56.1 Statement (ECF No.
382-25), Defendants did not highlight any portions of the responses to paragraphs 63–67, 116,
117, 145, 146, 148, or 149. Accordingly, the Court construes Defendants’ motion to not request
sealing related to those responses, due to the absence of highlighting.
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WHEREAS, having reviewed the motions, exhibits, and sealing requests in light
of the well established right of public access to judicial documents and the public’s
interest in monitoring the administration of justice, see Mirlis v. Greer, 952 F.3d 51, 58–59
(2d Cir. 2020); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006);
United States v. Aref, 533 F.3d 72, 81–83 (2d Cir. 2008); King Pharms., Inc. v. Eon Labs, Inc.,
No. 04-CV-5540 (DGT) (RLM), 2010 WL 3924689, at *4 (E.D.N.Y. Sept. 28, 2010)
(collecting cases), the Court finds that the parties’ motions to seal should be granted in
part and denied in part,2
IT IS HEREBY ORDERED that the motions to seal3 pertaining to Plaintiffs’
Motion for Summary Judgment are GRANTED in part and DENIED in part, and the
parties may publicly file the motions and attachments with the redactions indicated in
the proposed filings, except as follows, because the Court finds that some of the
information the parties request to seal includes important factual assertions and
When reviewing a motion to seal, courts consider three factors: (1) whether the
document is a “judicial document”; (2) “the weight of the presumption of access to that
document”; and (3) whether “all of the factors that legitimately counsel against disclosure of the
judicial document” outweigh “the weight properly accorded the presumption of access.” Mirlis,
952 F.3d at 59 (quotation marks omitted). Here, the parties are seeking to seal portions of briefs
and exhibits submitted in support of their respective summary judgment motions. Accordingly,
in weighing the second factor, the Court affords significant weight to the presumption of access
because the documents were submitted in support of their request for a judicial adjudication of
the merits of this case. The Second Circuit has recognized “that the weight to be given” to the
presumption of access to judicial documents falls along a continuum, and “must be governed
by the role of the material at issue in the exercise of Article III judicial power and the resultant
value of such information to those monitoring the federal courts.” United States v. Amodeo, 71
F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo II”)); see also Mirlis, 952 F.3d at 60 (“The general and
deeply rooted rule is that the presumptive right of access is afforded ‘strong weight’ when
applied to documents that play a central role in ‘determining litigants’ substantive rights —
conduct at the heart of Article III.’” (quoting Amodeo II, 71 F.3d at 1049); Bernstein v. Bernstein
Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016) (finding that a “judicial
document” is “relevant to the performance of the judicial function and useful in the judicial
process” and that such documents are presumptively public (quotation marks omitted)).
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(See Pls.’ Mot. to Seal, ECF No. 384; Pls.’ Mem. in Supp., ECF No. 384-1; Defs.’ Mot. for
Leave to File Under Seal, ECF No. 385; Defs.’ Mem. in Supp., ECF No. 386.)
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argument that are highly relevant to the judicial function, that public filing of certain of
the requested information does not realistically risk disclosure of confidential business
information or trade secrets,4 and that the parties have not established that the risk of
disclosure outweighs the presumption of public access to court proceedings, to wit:
(1) Plaintiffs’ requests to seal specific language (highlighted in grey) from
Plaintiffs’ Memorandum in Support (ECF No. 382-2), are GRANTED in part
and DENIED in part. Specifically, on page 8, the request to seal the adjective
describing the country where certain watch parts were made is GRANTED
whereas the request to seal the word following the country-adjective is
DENIED as it does not reveal a trade secret, it contains otherwise public
information in this case, and it is relevant to an evaluation of Plaintiffs’
summary judgment arguments;
(2) Certain of Defendants’ requests to seal specific language (highlighted in teal)
from Plaintiffs’ Memorandum in Support (ECF No. 382-2), an important
judicial document, are DENIED in part because they include requests to seal
arguments and factual assertions that are highly relevant to the judicial
It is well established that considerations of a “business’s proprietary information, such
as trade secrets or confidential research” can override the public right of access to judicial
documents. Crossman v. Astrue, 714 F. Supp. 2d 284, 287 (D. Conn. 2009). However, the Second
Circuit has cautioned that “[i]n most cases, a judge must carefully and skeptically review
sealing requests to insure that there really is an extraordinary circumstance or compelling
need.” Video Software Dealers Assoc. v. Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994). With
regard to trade secrets specifically, “the party seeking to preclude disclosure of trade secrets has
the burden to show that the information in fact constitutes a trade secret, that disclosure would
harm [the] movant’s competitive position and that the asserted harm outweighs the
presumption of public access.” King Pharms., Inc., 2010 WL 3924689, at *6 (quotation marks
omitted). Here, with regard to the disapproved proposed redactions, the Court finds that the
parties’ requests for sealing are overly broad and seek sealing of information that does not
appear to actually comprise sensitive information, much less information that is so sensitive
that the risk of disclosure outweighs the presumption of public access to Court proceedings.
This has been an issue in this case for years. (See, e.g., Nov. 10, 2021 ECF Order (quoting King
Pharms., Inc., 2010 WL 3924689, at *6).)
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function and do not contain trade secrets or confidential business
information. The request to seal the alleged supplier names in the last
sentence of the first full paragraph on page 5 is GRANTED, but Defendants’
requests to seal the following language are DENIED as these proposed
redactions include important factual arguments that are highly relevant to the
judicial function and do not include the type of information that may be
protected as confidential business information, see King Pharms., 2010 WL
3924689, at *6:
a. the proposed redactions on page 2;
b. the proposed redactions in the final paragraph on page 5;
c. the proposed redactions on page 6, in footnote 4;
d. the proposed redactions on pages 9 and 10; and
e. the proposed redactions on page 19;
(3) Certain of Defendants’ requests to seal specific language (highlighted in teal)
in Plaintiffs’ Rule 56.1 Statement (ECF No. 382-3), an important judicial
document, are DENIED, including as to paragraphs 63–69, 116, 117, 136–138,
145, 146, 148, and 149, because the information sought to be sealed is highly
relevant to an analysis of the claims in this case and does not contain trade
secrets or confidential business information that justifies sealing;5
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The Court notes that although it has generally permitted Angel Seller to file under seal
information regarding its alleged suppliers, substantial information regarding the purported
supplier relationship between Angel Seller and Hedy’s Corporate Gifts is already public. (See,
e.g., Aug. 15, 2022 Tr. of Status Conference, ECF No. 228, at 12:6–7, 14:12–15, 78:17–19
(discussing, inter alia, Hedy’s as a supplier of the watches sold on Amazon); Dec. 5, 2022 Tr. of
Status Conference, ECF No. 289, at 36:2–6 (“And the documents in [Defendant Sternberg’s]
December 15th production are the responses to Amazon with the attachments that show that in
fact he got these watches from his parents’ company, Hedy’s Gifts.”).) Accordingly, the Court
denies Defendants’ requests to seal information regarding Hedy’s as a supplier.
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(4) Certain of Defendants’ requests to seal specific language (highlighted in teal)
from the Declaration of Michelle Mancino March (ECF No. 382-4), are
DENIED, insofar as the mentions of Hedy’s in the last two lines of paragraph
18 and the proposed redactions in paragraph 22 may not be filed under seal,
because these proposed redactions do not contain previously-undisclosed
supplier information or confidential business information that justifies
sealing, and as to paragraph 22 specifically, the factual allegations contained
therein are directly relevant to Plaintiffs’ arguments on summary judgment
and the Court’s adjudicative function, and Defendants have not overcome the
weight of the presumption of access to be accorded this information;
(5) Defendants’ request to seal Exhibit 2 to the Marsh Declaration (ECF No. 3826) in its entirety is DENIED because the email correspondence and invoice
contained therein do not contain confidential business information that
justifies sealing, with the exception of the pricing information column and the
total column on the invoice (at ECF p. 4), which may be considered
confidential financial information and may thus be sealed;
(6) Defendants’ requests to seal Exhibits 3, 4, 7, 8, 9, and 11 to the Marsh
Declaration (ECF Nos. 382-7, 382-8, 382-11, 382-12, 382-13, 382-15) in their
entirety are DENIED because the documents sought to be sealed do not
contain confidential business information subject to protection. Rather, they
contain an excerpt of Amazon’s business records concerning alleged
consumer complaints regarding products sold at the Angel Seller Amazon
storefront (ECF No. 382-7), communications with Amazon (see ECF Nos. 3828, 382-11, 382-12, 382-13, 382-15), and a letter to Amazon.com from counsel for
Angel Seller (see ECF No. 382-11, at ECF pp. 5–9), which letter also contains a
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copy of the invoice included in Exhibit 2 to the Marsh Declaration (at ECF No.
382-11, at ECF p. 8);6
(7) Certain of Plaintiffs’ requests to seal specific language (highlighted in grey)
from Defendants’ Memorandum in Opposition (ECF No. 382-24), an
important judicial document, are DENIED in part because they seek to seal
argument and factual assertions that are highly relevant to the judicial
function and do not contain trade secrets or confidential business
information. Specifically, Plaintiffs’ requests to seal the following language
are DENIED:
a. the proposed redactions on page 3 (see ECF p. 10); and
b. the proposed redactions on page 20 (see ECF p. 27);
(8) Certain of Defendants’ requests to seal specific language (highlighted in teal)
in Defendants’ Response to Plaintiffs’ Rule 56.1 Statement (ECF No. 382-25),
an important judicial document, are DENIED consistent with the findings
supra as to Plaintiffs’ Rule 56.1 Statement. The proposed sealing of language
from paragraphs 63–69, 116, 117, 136–138, 145, 146, 148, and 149, is DENIED
because the information sought to be sealed is highly relevant to an analysis
of the claims in this case and does not contain trade secrets or confidential
business information that justifies sealing. The proposed sealing of language
The Court denies these requests to seal the documents in their entirety without
prejudice. As to these exhibits, Defendants are granted leave to provide further authority for the
request to seal these documents in their entirety and/or submit proposed redactions to these
documents by filing a supplemental motion to seal by May 16, 2024. In addition, for the reasons
discussed supra, the pricing information on the invoice may be redacted. (The Court notes that
this pricing information may also be redacted from the copy of this invoice included at ECF No.
385-34, at ECF p. 4.)
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in Defendants’ response to paragraphs 68 and 69 (ECF No. 382-25, at ECF pp.
23–24) is likewise DENIED;
(9) Defendants’ request to seal Exhibit 26 to Defendants’ Memorandum in
Opposition (ECF No. 382-41) in its entirety is DENIED without prejudice, see
supra note 6, because the exhibit does not contain confidential business
information subject to protection. Rather, it contains email correspondence
concerning an alleged consumer complaint to Amazon. Defendants may
propose redactions to this exhibit, but have not provided sufficient
justification for the entire exhibit to be filed under seal in the current posture,
i.e., summary judgment;
(10)
Certain of Defendants’ requests to seal portions of Defendant Sternberg’s
deposition transcript are DENIED, i.e., the language on page 89 of the
deposition may not be filed under seal (see ECF No. 382-43, at ECF p. 7).
Although Defendants may redact the supplier names on page 89 and the
names of business contacts, the remainder of Mr. Sternberg’s testimony on
page 89 of the deposition transcript does not reveal confidential business
information and may not be redacted, and the Court further finds that there is
no basis to seal lines 9 through 11, since these lines do not reveal any
cognizable proprietary business information;
(11)
Certain of Defendants’ requests to seal specific language (highlighted in
teal) of Plaintiffs’ Reply in Support of Summary Judgment (ECF No. 382-46),
an important judicial argument, are DENIED because the requests seek to seal
language that contains important factual arguments that are highly relevant
to the judicial function and do not contain the type of information that may
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be protected as confidential business information, including the language on
pages 1 and 7 (ECF No. 382-46, at ECF pp. 7, 12);
(12)
Plaintiffs’ request to seal the language on page 10 from Plaintiffs’ Reply in
Support of Summary Judgment, an important judicial document (see ECF No.
382-46, at ECF p. 15) (proposed redactions highlighted in grey), is DENIED
because the proposed language does not reveal trade secrets or confidential
information and Plaintiffs have not established that disclosure of this
information would result in harm that outweighs the public right of access;
(13)
Certain of Defendants’ requests to seal specific language (highlighted in
teal) in Plaintiffs’ Response to Defendants’ Response to Plaintiffs’ Rule 56.1
Statement (ECF No. 382-47), an important judicial document, are DENIED
consistent with the findings supra as to Plaintiffs’ Rule 56.1 Statement and
Defs.’ Statement. The proposed sealing of language from paragraphs 63–69,
116, 117, 136–138, 145, 146, 148, and 149, is DENIED because the information
sought to be sealed is highly relevant to an analysis of the claims in this case
and does not contain trade secrets or confidential business information that
justifies sealing. The proposed sealing of language in Defendants’ response to
paragraphs 68 and 69 (ECF No. 382-47, at ECF pp. 23–25) is likewise DENIED,
and, accordingly, based on the foregoing findings, the parties may publicly file
Plaintiffs’ fully-briefed motion for summary judgment and the exhibits with the
redactions indicated;
IT IS FURTHER ORDERED that the motions to seal pertaining to Defendants’
Motion for Summary Judgment are GRANTED in part and DENIED in part, and the
parties may publicly file the motion with the redactions indicated in the attachments
included with the motion, except as follows, because the Court finds that some of the
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information the parties request to seal includes important factual assertions and
argument that are highly relevant to the judicial function, that public filing of certain of
the requested information does not realistically risk disclosure of confidential business
information or trade secrets, and that the parties have not established that the risk of
disclosure outweighs the presumption of public access to court proceedings, to wit:
(1) Plaintiffs’ request to seal the language on page 3 (highlighted in grey) of
Defendants’ Memorandum in Support (ECF No. 385-2), an important judicial
document, is DENIED as the language they seek to seal is argument that is
relevant to the judicial function and does not contain any trade secrets or
confidential business information;
(2) Certain of Plaintiffs’ requests to seal specific language (highlighted in grey) in
Defendants’ Rule 56.1 Statement (ECF No. 385-3), an important judicial
document, are DENIED. Specifically, Plaintiffs’ requests to seal the following
excerpts are DENIED as they include important factual arguments that are
highly relevant to the judicial function and do not include the type of
information that may be protected as confidential business information:
a. the proposed redactions to paragraph 128;
b. the first and third proposed redactions to paragraph 129 (although
Plaintiffs may seal the name of the vendor);
c. the proposed redactions to paragraph 130, with the exception of the
vendor name and dollar amount, which may be filed under seal;
d. the proposed redactions to paragraph 131;
e. the proposed redactions to paragraph 132, with the exception of the
third-party company name that begins the paragraph, which may be
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sealed as it includes confidential business information relating to a
vendor;
f. the proposed redactions to paragraph 137; and
g. the proposed redactions to paragraph 138;
(3) Plaintiffs’ requests to seal Exhibits 4 and 11 to the Berkowitz Declaration (see
ECF Nos. 385-9, 385-16) in their entirety are DENIED without prejudice, see
supra note 6, because the documents sought to be sealed do not exclusively
contain confidential business information subject to protection. Rather, they
contain communications with a third-party vendor and a proposal from that
vendor that is relevant to Defendants’ factual arguments and, other than the
vendor name and contact information, do not appear to reveal actual trade
secrets or reveal truly sensitive confidential business information that would,
for example, provide a competitor with an advantage (see ECF Nos. 385-9), as
well as correspondence with Amazon and discussions about selling strategy
on Amazon that are relevant to Defendants’ arguments on summary
judgment (see, e.g., ECF No. 385-16, at ECF pp. 9–12);
(4) Defendants’ request to file Defendants’ Exhibit 15 (ECF No. 385-21) with
proposed redactions (highlighted in teal) is GRANTED, but the exhibit cannot
be filed under seal in its entirety (see cover sheet to Ex. 15, at ECF No. 385-21,
at ECF p. 1);
(5) Certain of Defendants’ requests to seal specific language (highlighted in teal)
in Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (ECF
No. 385-23), an important judicial document, are DENIED. Specifically,
Defendants’ requests to seal the following language are DENIED as some of
the information (re Hedy’s) is already public, and other of the proposed
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redactions include important factual arguments that are highly relevant to the
judicial function and do not include the type of information that may be
protected as confidential business information:
a. the word “Hedy’s” on page 4;
b. the proposed redactions on page 5;
c. the proposed redaction on page 6, in footnote 4;
d. the proposed redactions on page 8; and
e. the proposed redactions on page 21, in footnote 16;
(6) Certain of Plaintiffs’ requests (highlighted in grey) and certain of Defendants’
requests (highlighted in teal) as to Plaintiffs’ Opposition to Defendants’ Rule
56.1 Statement (ECF No. 385-24), an important judicial document, are
DENIED. Specifically, requests to seal as to the following excerpts are
DENIED as they include important factual arguments that are highly relevant
to the judicial function and do not include the type of information that may
be protected as confidential business information:
a. Defendants’ proposed redactions to Defendants’ response to
paragraph 5 (at ECF p. 4);
b. Plaintiffs’ proposed redactions to paragraph 128;
c. Plaintiffs’ first and third proposed redactions to paragraph 129
(although Plaintiffs may seal the name of the vendor);
d. Plaintiffs’ proposed redaction to Defendants’ response to paragraph
129, with the exception of the name of the vendor, which may be filed
under seal;
e. Plaintiffs’ proposed redactions to paragraph 130, with the exception of
the vendor name and dollar amount, which may be filed under seal;
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f. Plaintiffs’ proposed redactions to paragraph 131;
g. Plaintiffs’ proposed redactions to paragraph 132, with the exception of
the third-party vendor name, which may be sealed;
h. Plaintiffs’ proposed redactions to paragraph 137;
i. Plaintiffs’ proposed redactions to paragraph 138;
j.
Defendants’ proposed redactions to Defendants’ response to
paragraph 212 (see ECF p. 50);
k. Defendants’ proposed redactions to paragraphs 55, 56, and 57 of
Plaintiffs’ Further Rule 56.1 Statement in Opposition to Defendants’
Rule 56.1 statement (see ECF pp. 61–62);
l. the word “Hedy’s” in paragraph 63 of Plaintiffs’ counterstatement (see
ECF p. 62); and
m. Defendants’ proposed redactions to paragraphs 66, 67, 68, and 71 of
Plaintiffs’ counterstatement to Defendants’ Rule 56.1 statement (see
ECF p. 63);
(7) Defendants’ proposed redactions (highlighted in teal) to the February 16, 2024
Declaration of Michelle Mancino March (ECF No. 385-25), are DENIED as the
factual allegations contained therein are directly relevant to Plaintiffs’
arguments on summary judgment and the court’s adjudicative function, and
Defendants have not overcome the weight of the presumption of access to be
accorded this information;
(8) Defendants’ requests to seal the following information (highlighted in teal)
from the Barnes Declaration (see ECF No. 385-40) are DENIED:
a. the proposed redaction to paragraph 26 (see ECF p. 10); and
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b. the reference to “Hedy’s Corporate Gifts/Hedy’s Gifts, Inc.” in
paragraph 27, as it is already public;
(9) Certain of Defendants’ proposed redactions to Defendants’ Response to
Plaintiffs’ Further Rule 56.1 Statement in Opposition to Defendants’ Rule 56.1
statement (see ECF No. 385-46) are DENIED, including:
a. the proposed redactions to paragraphs 55, 57, and 58 (see ECF pp. 16–
17);
b. the word “Hedy’s” in paragraph 63 (see ECF p. 18); and
c. the proposed redactions to paragraphs 66, 67, 68, and 71, as well as the
proposed redactions to Defendants’ response to paragraphs 67 and 68
(see ECF pp. 18–21),
and, accordingly, based on the foregoing findings, the parties may publicly file
Defendants’ fully-briefed motion for summary judgment and the exhibits with the
redactions indicated.
SO ORDERED.
Dated:
Brooklyn, New York
May 9, 2024
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
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