Ferring Pharmaceuticals Inc. et al v. Serenity Pharmaceuticals, LLC et al

Filing 654

RULING ON REQUESTS TO SEAL denying 634 Motion to Seal Document. The court, for its rulings on the patties' requests to file certain documents under seal and to redact portions of those documents from the public record (Document #634): Affidav it of Seymour H. Fein (Docket #623). All of counterclaimants' requests to keep certain materials under seal are DENIED. No real reason has been given why this information (much of which would have to be part of the record in the bankruptcy proce eding of Avadel) is such a big secret. Information concerning licenses that are pertinent to this action is not confidential information. The fact that some information about the termination of various licensing agreements may have been kept confiden tial to date does not make it a trade secret or otherwise justify cloaking it in secrecy. It is part of the history of the commercial dealings of parties to this lawsuit concerning the product at issue in this lawsuit. The affidavit at Docket #623 shall be filed in unredacted form by Friday, February 28 at 5 PM. Affidavit of Chrisotpher Vellturo, PhD (docket #634). Dr. Vellturo is Ferring's damages expert. The court is not going to award secret damages, as further set forth in this Orde r. Direct Testimony of Andrew Carter (Docket #625). The redaction requests are extensive and would effectively force the court to evaluate the question of a reasonable royalty (assuming we get there) in secret, which I will not do. Moreover the par ties' description of what is contained in many of these paragraphs in simply not accurate - conclusions by an expert that are "based on" allegedly confidential data that is not set out in the paragraph do not thereby become "co nfidential" conclusions. And the court will not be making "secret" findings of fact in this case, as further set forth in this order. I expect proper filings to be made by close of business tomorrow. This order does not address Serenit y/Reprise's request for permission to file proposed findings of fact and conclusions of law under seal. (Docket # 605). But the parties need to understand that I will be filing a PUBLIC decision. I will not be making findings of fact or conclus ions of law under seal. I will not seal "damages analysis" simply because it relies on the terms of agreements between and among the parties to this lawsuit or to the products at issue in this lawsuit. Both parties want to seal documents th at simply do not contain "highly proprietary" information. The formula for Coca Cola is "highly proprietary" information in which the owner has a significant privacy interest. The fact that you have agreements with each other rel ating to the products that underlie this lawsuit - agreements that underlie this lawsuit - is not private information. I realize that a rather liberal standard of "confidentiality" was permitted by my predecessor. The Second Circuit has made is quite clear that this practice is no longer to be followed. This constitutes the decision and order of the court. (Signed by Judge Colleen McMahon on 2/27/2020) (mml)