LSH CO et al v. AXA Equitable Life Insurance Company

Filing 350

ORDER granting 347 Letter Motion to Seal. Application GRANTED. Within one week, the parties shall ensure that Defendant's motion in limine filings not affected by this endorsement are on the public docket -- whether that is by refiling the documents as modified or by filing a letter advising the Court as to any document that can be unsealed (which the Court can then so order). The Clerk of Court is directed to terminate ECF No. 347. SO ORDERED. (Signed by Judge Jesse M. Furman on 10/20/23) (yv)

425 Lexington Avenue
New York, New York 10017
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www.hsgllp.com

Dorit Ungar Black
646-837-5156

[e-mail]

VIA ECF
The Honorable Jesse M. Furman
United States District Court
for the Southern District of New York
40 Foley Square
New York, NY 10007
Re:

October 17, 2023

LSH CO v. AXA Equitable Life Ins. Co., No. 18-cv-2111 (JMF)

Dear Judge Furman:
We represent Plaintiffs LSH CO (“LSH”) and Wells Fargo Bank, National Association,
solely in its capacity as securities intermediary (“Wells Fargo”) (together, “LSH Plaintiffs”) in
the above-referenced action. Pursuant to the Court’s Order, dated April 10, 2018, concerning the
filing of sealed documents (Brach D.E. 212), as modified for motion in limine briefing by the
Court’s Order dated August 31, 2023 (LSH D.E. 302), and Rule 7.B. of Your Honor’s Individual
Rules and Practices in Civil Cases, the LSH Plaintiffs respectfully request the continued sealing
of submissions made by the Defendant in connection with motion in limine briefing. In
particular, the LSH Plaintiffs request the continued sealing of certain exhibits to LSH D.E. 311,
the Declaration of Robert C. Hora in Support of Defendant’s Motions In Limine (“Hora Aff.
Decl.”), and LSH D.E. 335, the Declaration of Robert C. Hora In Support of Defendant’s
Opposition to Plaintiffs’ Motions In Limine (“Hora Opp. Decl.”).
Exhibit 10 to the Hora Aff. Decl. and Exhibit 37 to the Hora Opp. Decl. reflect the Expert
Report of Glenn Hubbard, Defendant’s damages expert. Exhibit 24 to the Hora Opp. Decl. is a
June 23, 2009 letter between the Alberta Investment Management Corporation (“AIMCo”) and
CMG Surety LLC (“CMG”), LSH’s life settlements portfolio manager, concerning the terms of
CMG’s engagement. Exhibit 25 to the Hora Opp. Decl. contains excerpts from the March 22,
2019 deposition transcript of former CMG principal Robert White. Exhibit 28 to the Hora Opp.
Decl. is a June 10, 2014 letter from actuarial consulting firm Lewis & Ellis, Inc. (“L&E”) to
CMG regarding L&E’s review and valuation of policies owned by LSH. Exhibit 32 to the Hora
Opp. Decl. is an “Amended and Restated Origination and Acquisition Agreement,” dated May
16, 2011, between LSH and CMG. Exhibit 33 to the Hora Opp. Decl. is an internal LSH
“Investment Approval Request” concerning CMG. Exhibit 34 to the Hora Opp. Decl. is an
“Origination and Acquisition Agreement,” dated April 9, 2010, between LSH and CMG.

The presumption of public access to judicial documents must be balanced against
countervailing factors, such as “privacy interests” and whether the materials at issue contain
“sensitive and proprietary information.” Awestruck Mktg. Grp., LLC v. Black Ops Prods., LLC,
No. 16-CV-3969, 2016 WL 8814349, at *2 (S.D.N.Y. June 20, 2016).
Here, Exhibit 10 to the Hora Aff. Decl. and Exhibits 25, 28, 33, and 37 to the Hora Opp.
Decl. reveal LSH’s proprietary valuation methodology, policy purchase parameters, and
investment strategy, including sensitive mortality data. See Hora Aff. Decl. Ex. 10 ¶¶ 252, 27174; Ex. 25 at 69:11-70:13, 72:18-73:11, 152:2-155:24, 183:9-183:24; Ex. 28 (entire document);
Ex. 33 (entire document); Ex. 37 ¶¶ 252, 271-74. The information in these documents is private,
unique to LSH, crucial to its core business interests, and unknown to LSH’s competitors in the
life settlements market. See Declaration of Eric Pedde (“Pedde Decl.”) dated February 7, 2019
(LSH D.E. 179-1) ¶¶ 3-51; Pedde Decl. dated December 17, 2018 (LSH D.E. 150-1) ¶¶ 5,2 7.3
Further, Exhibits 24, 32, and 34 to the Hora Opp. Decl. disclose the non-public terms of privately
negotiated and confidential agreements between LSH and CMG and also describe the sensitive
investment strategies and policy eligibility parameters revealed by Exhibits 25, 28, 33, and 37 to
the Hora Opp. Decl. See Ex. 24 (entire document); Ex. 32 (entire document); Ex. 34 (entire
document). Public disclosure of such “specific business information and strategies,” including
the confidential terms of LSH’s agreements with its third-party service provider, would put LSH
“at a competitive disadvantage” in the life settlements market. See Louis Vuitton Malletier S.A.
v. Sunny Merchandise Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015); New York v. Actavis,
2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014); Pedde Decl. dated December 17, 2018 (LSH
D.E. 150-1) ¶ 8.4
For the same reasons the Court previously ordered continued sealing of LSH’s valuation
criteria and confidential agreements, including the LSH agreements subject to this letter motion
“I have reviewed and approved valuation criteria for the purchase of life insurance policies, including
criteria relevant to the 53 policies at issue in this litigation. . . . LSH’s valuation criteria are proprietary
work product of LSH and essential to its business. They are also unknown to the life settlements market
and intended to remain confidential. LSH would be damaged if competitors became aware of these
valuation criteria because they could use this information to their advantage when evaluating life
insurance policies that LSH considers purchasing or selling. . . . The value of LSH’s life settlement
portfolio is unknown to life insurance providers and LSH’s competitors in the life settlements market.
This value is highly confidential and is based on many policies not issued by Defendant and not at issue
in this litigation. Public disclosure of this value would enlighten LSH' s competitors and harm LSH’s
ability to bargain.”
1

“LSH’s mortality assumptions and related analyses are unique to LSH and essential to their business.
They are also unknown to the life settlement market.”
2

“LSH’s investment strategies” are “unknown to LSH’s competitors in the life settlement market” and
“vital to LSH’s positioning in the market.”
3

“LSH’s techniques for managing their policies and third-party service providers such as IFA and CMG
are considered confidential and exclusive to LSH. The terms of LSH’s engagements with these third-party
service providers are unknown to the market and are proprietary to LSH.”
4

2

and the specified paragraphs in the Expert Report of Glenn Hubbard, this information should
remain sealed here. See LSH D.E. 134; LSH D.E. 152; LSH D.E. 168; LSH D.E. 181; LSH D.E.
193; LSH D.E. 208; EFG D.E. 319; LSH D.E. 241; Brach D.E. 417; Brach D.E. 633.
* * * *
Accordingly, the LSH Plaintiffs respectfully request the continued sealing of the aforesaid
documents submitted by the Defendant in support of its motion in limine briefing.
Respectfully submitted,

Dorit Ungar Black
Cc: All Counsel of Record (via ECF)

Application GRANTED. Within one week, the parties shall ensure that Defendant's motion in
limine filings not affected by this endorsement are on the public docket -- whether that is by refiling the documents as modified or by filing a letter advising the Court as to any document
that can be unsealed (which the Court can then so order). The Clerk of Court is directed to
terminate ECF No. 347.
SO ORDERED.

October 20, 2023

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