Nypl v. JP Morgan Chase & Co. et al

Filing 835

ORDER granting in part and denying in part without prejudice 805 Letter Motion to Seal. Application GRANTED in part and DENIED in part without prejudice. To the extent the redactions -- in the parties memoranda of law, Local Rule 56.1 statements a nd certain exhibits -- are narrowly tailored to protect competitively sensitive information about how Defendant banks set retail prices for foreign currency, Defendants' interest in the confidentiality of that information outweighs the presum ption of public access in this instance. However, the parties have offered no explanation for why they seek to redact information about how the government set the amounts of fines imposed on certain Defendants, nor any justification for filing enti re exhibits under seal that cover topics other than the competitively sensitive information discussed above. By February 10, 2023, each party shall file a renewed letter motion to seal, attaching more lightly-redacted versions of any documents that can be filed in part on the public docket, and specifically explaining why any remaining redactions are narrowly tailored to protect a confidentiality or other interest that outweighs the presumption of public access. In the meantime, the Clerk of Court is respectfully directed to maintain under seal all documents currently filed under seal. (Signed by Judge Lorna G. Schofield on 1/31/2023) (mml)

Case 1:15-cv-09300-LGS Document 835 Filed 01/31/23 Page 1 of 5

September 1, 2022
VIA ECF
The Honorable Lorna G. Schofield
United States District Judge
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, New York 10007
Re:

Nypl, et al. v. JPMorgan Chase & Co., et al., Case No. 1:15-cv-9300 (LGS)

Dear Judge Schofield:
Pursuant to Rule I.D.3 of Your Honor’s Individual Rules and Procedures for Civil Cases,
the parties respectfully seek leave to file under seal limited portions of the papers in support of
and in opposition to defendants’ motion for summary judgment (the “Parties’ Submissions”) as
set forth below.
Certain portions of the Parties’ Submissions quote directly from or otherwise refer to
documents that have been designated as “Highly Confidential” under the Stipulation and Order
of Confidentiality (hereinafter the “Protective Order”) because they contain “material regarding
trading and investment strategies, pricing and cost information, customer lists, business strategy,
trade secrets and other commercial or financial information, the disclosure of which to another
Party or non-party would create a substantial risk of causing the Disclosing Party to suffer
significant competitive or commercial disadvantage . . . .” (ECF No. 249 at 2-3.) In particular,
these documents disclose confidential, proprietary information concerning how each bank sets
retail foreign exchange rates for the purchase of physical foreign currency at its retail branches in
the United States. Because the process used to set these rates reflects confidential pricing
information and sensitive business strategies, the parties respectfully request that it not be
disclosed publicly. (See ECF No. 597, July 20, 2020 Order (granting plaintiffs’ motion to seal
portions of a joint letter containing similar information for this reason).) The proposed
redactions in the Parties’ Submissions are narrowly tailored to ensure that the bulk of the Parties’
Submissions will be publicly available on the docket, and are consistent with the redactions
made in the parties’ papers in support of and in opposition to plaintiffs’ motion for class
certification and accompanying Daubert motions, which this Court permitted to be filed under
seal. See ECF No. 778 (Mar. 21, 2022 Order granting joint letter request to file under seal).
As the Court knows, the Second Circuit has recognized that the right of public access to
judicial documents is not absolute and “the court must balance competing considerations against
it.” See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). For
instance, documents may be sealed where “closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Id.; see also Nixon v. Warner Commc’ns., Inc., 435 U.S.
589, 599 (1978) (“[T]he decision as to access is one best left to the sound discretion of the trial
court, a discretion to be exercised in light of the relevant facts and circumstances of the particular
case.”). Cf. Burke v. Glanz, No. 11-cv-720, 2013 WL 211096, at *4 (N.D. Okla. Jan. 18, 2013)

Case 1:15-cv-09300-LGS Document 835 Filed 01/31/23 Page 2 of 5

(“Courts should be wary of modifying a protective order where a party has complied with
discovery in reliance on the agreement.”).
Pursuant to Rule I.D.3 of Your Honor’s Individual Rules and Procedures of Civil Cases,
the parties have prepared highlighted versions of the Parties’ Submissions that they propose to
file in redacted form and in unredacted form under seal. The parties believe that these proposed
redactions strike the proper balance between public access to court documents and protection of
confidential business information. Further pursuant to Rule I.D.3 of Your Honor’s Individual
Rules and Procedures for Civil Cases, attached hereto as Appendix A is a list of all parties and
attorneys of record who should have access to the sealed documents.
Respectfully submitted,

ALIOTO LAW FIRM

LAW OFFICES OF LINGEL H.
WINTERS, A Professional Corporation

By: s/ Joseph M. Alioto*
Joseph M. Alioto
Tom Pier
Theresa D. Moore

By: s/ Lingel H. Winters*
Lingel H. Winters

Attorneys for Plaintiffs

Attorney for Plaintiffs

Application GRANTED in part and DENIED in part without prejudice. To the extent the redactions
PAPALE of law, Local Rule CHRISTOPHER
A. NEDEAU
--LAWRENCE
in the partiesG.
memoranda
56.1 statements and
certain exhibits -- are
narrowly tailored to protect competitively sensitive information about how Defendant banks set
By: s/prices
Lawrence
G. Papale*
By: s/ Christopher
A. Nedeau*of that information
retail
for foreign
currency, Defendants' interest
in the confidentiality
Lawrence
G.
Papale
Christopher
A.
Nedeau
outweighs the presumption of public access in this instance. However, the parties have offered
no explanation for why they seek to redact information about how the government set the
Attorneyof
forfines
Plaintiffs
Attorney
forjustification
Plaintiffs for filing entire exhibits
amounts
imposed on certain Defendants,
nor any
under seal that cover topics other than the competitively sensitive information discussed above.
By February 10, 2023, each party shall file a renewed letter motion to seal, attaching more
lightly-redacted versions of any documents that can be filed in part on the public docket, and
specifically explaining why any remaining redactions are narrowly tailored to protect a
confidentiality or other interest that outweighs the presumption of public access.
In the meantime, the Clerk of Court is respectfully directed to maintain under seal all documents
currently filed under seal.
Dated: January 31, 2023
New York, New York

2

Case 1:15-cv-09300-LGS Document 835 Filed 01/31/23 Page 3 of 5

SHEARMAN & STERLING LLP

SULLIVAN & CROMWELL LLP

By: s/ Adam S. Hakki*
Adam S. Hakki
Richard F. Schwed
Jeffrey J. Resetarits

By: s/ Matthew A. Schwartz*
Matthew A. Schwartz
Christopher J. Dunne
Mark A. Popovsky
Maeghan O. Mikorski

Attorneys for Defendants Bank of America
Corporation and Bank of America, N.A.

Attorneys for Defendants
Barclays PLC and Barclays Capital Inc.

COVINGTON & BURLING LLP

LOCKE LORD LLP

By: s/ Andrew A. Ruffino*
Andrew A. Ruffino
Andrew D. Lazerow

By: s/ J. Matthew Goodin*
Roger B. Cowie
Gregory T. Casamento
J. Matthew Goodin
Julia C. Webb

Attorneys for Defendants Citicorp,
Citigroup Inc. and Citibank N.A.

Attorneys for Defendants HSBC Bank
USA, N.A. and HSBC North America
Holdings, Inc.

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

DAVIS POLK & WARDWELL LLP

By: s/ Boris Bershteyn
Boris Bershteyn
Peter S. Julian
Tansy Woan

By: s/ Paul S. Mishkin*
Paul S. Mishkin
Charlotte M. Savino
Eric M. Kim

Attorneys for Defendants JPMorgan
Chase & Co. and JPMorgan Chase
Bank, N.A.

Attorneys for Defendant The Royal
Bank of Scotland plc, now known as
NatWest Markets Plc

GIBSON, DUNN & CRUTCHER LLP
By: s/ Eric J. Stock*
Eric J. Stock
Melanie L. Katsur
Attorneys for Defendant UBS AG
*Signatures used with permission pursuant to S.D.N.Y. ECF Rule 8.5

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Case 1:15-cv-09300-LGS Document 835 Filed 01/31/23 Page 4 of 5

APPENDIX A
Alioto Law Firm
Joseph M. Alioto
Thomas P. Pier

Law Offices of Lingel H. Winters
Lingel H. Winters

Attorneys for Plaintiffs

Attorneys for Plaintiffs

Nedeau Law Firm
Christopher A Nedeau

Law Offices of Lawrence G. Papale
Lawrence Papale

Attorneys for Plaintiffs

Attorneys for Plaintiffs

SHEARMAN & STERLING LLP

SULLIVAN & CROMWELL LLP

Adam S. Hakki
Richard F. Schwed
Jeffrey J. Resetarits

Matthew A. Schwartz
Christopher J. Dunne
Mark A. Popovsky
Maeghan O. Mikorski

Attorneys for Defendants Bank of America
Corporation and Bank of America, N.A.

Attorneys for Defendants Barclays PLC and
Barclays Capital Inc.

COVINGTON & BURLING LLP

LOCKE LORD LLP

Andrew A. Ruffino
Andrew D. Lazerow

Roger B. Cowie
Gregory T. Casamento
J. Matthew Goodin
Julia C. Webb

Attorneys for Defendants Citicorp, Citigroup
Inc. and Citibank N.A.

Attorneys for Defendants HSBC Bank USA,
N.A. and HSBC North America Holdings, Inc.

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

DAVIS POLK & WARDWELL LLP

Boris Bershteyn
Peter S. Julian
Tansy Woan

Paul S. Mishkin
Charlotte M. Savino
Eric M. Kim

Attorneys for Defendants JPMorgan Chase & Attorneys for Defendant The Royal Bank of
Co. and JPMorgan Chase Bank, N.A
Scotland plc, now known as NatWest Markets
Plc

1

Case 1:15-cv-09300-LGS Document 835 Filed 01/31/23 Page 5 of 5

GIBSON, DUNN & CRUTCHER LLP
Eric J. Stock
Melanie L. Katsur
Attorneys for Defendant UBS AG

2