Nichols, et al. v. Noom Inc., et al.

Filing 318

ORDER granting #316 Letter Motion to Seal. The Court agrees that the transcript at ECF No. 311 should be redacted, but only to the limited extent that Defendants propose. Accordingly, Defendants must submit the Southern District's Redaction Request Form to the Court Reporter by May 11, 2021. The Court also respectfully requests that the Clerk of Court ensure that the document filed at ECF No. 317 remain under seal, with access limited to the parties and the Court. (Signed by Magistrate Judge Katharine H. Parker on 4/28/2021) (mro)

Charles Low
[phone]
[e-mail]

via CM/ECF

4/28/2021

April 27, 2021
The Hon. Katharine H. Parker
Daniel Patrick Moynihan Courthouse
500 Pearl Street
New York, NY 10007

Re: Nichols, et al. v, Noom, Inc., et al., Case No. 20-cv-3677 (LGS) (KHP): Letter Motion for
Redaction of Hearing Transcript
Dear Judge Parker:
Pursuant to Paragraph III.d of the Court’s Individual Practices, Defendants Noom, Inc and Artem
Petakov (“Noom”) respectfully request that the Court redact and seal limited portions of the April 15, 2021
Hearing Transcript (ECF No. 311).
During the hearing, counsel for both parties recited confidential user data that Noom has produced
during discovery. This confidential user data appears on the April 15, 2021 Hearing Transcript at 12:3-4,
42:2-5, and 51:14-15. Consistent with the Court’s Individual Practices to limit filings under seal to the
information that is strictly necessary to avoid harm to the designating party, Noom seeks to seal only the
specific confidential data described in the April 15 Transcript. As set forth below, these proposed redactions
are consistent with the Second Circuit’s opinions in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110
(2d Cir. 2006) and Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir. 2016).
Pursuant to Lugosch, the Court must first assess whether the documents at issue are “judicial
documents.” 435 F.3d at 119. Once the Court has made that determination, it must assess the weight of
the presumption of public access to the documents under the common law and the First Amendment, and
then, it must weigh the presumption of public access against any competing interests, such as the privacy
interests of the party resisting disclosure. Id. at 119-20.
While Noom does not contest that the April 15 Transcript is a judicial document, the information it
seeks to seal relates to material passed between the parties in discovery. As such, the presumption of
public access is low. Bernstein, 814 F.3d at 142 (documents “‘such as those passed between the parties
in discovery’ often play ‘no role in the performance of Article III functions’ and so the presumption of access
to these records is low”) (citation omitted); cf. In re Zyprexa Injunction, 474 F. Supp. 2d 385, 424 (E.D.N.Y.
2007) (“the documents at issue are not litigation filings, but documents produced in discovery, to which the
right of public access has not attached”). Here, the confidential information in question is highly sensitive
and closely guarded user data that Noom disclosed to Plaintiffs during discovery. Where, as here,
redactions are applied narrowly only to specific confidential business information that was designated as
confidential under the applicable protective order, courts have found the presumption of public access
comparatively low and have granted the party’s motion to seal. E.g., In re Keurig Green Mountain SingleServe Coffee Antitrust Litig., No. 14-md-2542, 2014 WL 12772236, at *2 (S.D.N.Y. Nov. 5, 2014) (sealing
information produced in discovery); Firmode (Int'l) Co. v. Int'l Watch Grp., Inc., No. 2008-4890, 2009 WL
3698137, at *2 (E.D.N.Y. Nov. 2, 2009) (collecting authorities sealing confidential supplier and pricing
information).
Cooley LLP 55 Hudson Yards New York, NY 10001-2157
t: [phone] f: [phone] cooley.com

Hon. Katharine H. Parker
April 27, 2021
Page Two
Turning to the second portion of the Lugosch test, Noom has significant privacy interests in the
data at issue. That information reflects Noom’s competitively sensitive usage data. Noom is a private
company and public disclosure of such sensitive information would be highly prejudicial and afford its
competitors an unfair advantage, and poses a substantial risk of harm to Noom. Not surprisingly, this is
precisely the type of confidential, competitively-sensitive information that courts regularly approve for
redaction. E.g., IBM v. Lima, No. 20-4573, 2020 WL 6048773, at *1-3 (S.D.N.Y. Oct. 13, 2020) (sealing
hearing transcript that reflected “non-public details of IBM’s revenues, . . . budget and performance”); In re
Keurig, 2014 WL 12772236, at *2 (sealing sales and customer data); Brookdale Univ. Hosp. & Med. Ctr.,
Inc. v. Health Ins. Plan of Greater N.Y., No. 07-1471, 2008 WL 4541014, at *1 (E.D.N.Y. Oct. 7, 2008)
(sealing internal cost and revenue data); Gelb v. AT&T Co., 813 F. Supp. 1022, 1035 (S.D.N.Y. 1993)
(sealing internal financial information); see also Bernstein, 814 F.3d at 143 (noting that the duty to protect
confidential client information is a factor that weighs in favor of sealing the material in question).
Finally, Noom would note that this Court and Judge Schofield have previously ordered the limited
redaction and sealing of similar data in prior transcripts and filings. (See ECF Nos. 162, 237 (ordering
limited redaction of Noom’s user data in transcripts); ECF Nos. 184, 238, 267 (ordering sealing of filings
containing Noom user data)
As such, Noom’s proposed redactions to the April 15 Hearing Transcript are appropriate and
narrowly tailored to protect its interests under Lugosch, 435 F.3d at 120, and Noom respectfully requests
that the Court redact and seal the identified portions therein.
In accordance with the Court’s Individual Practices and the Southern District of New York’s
Standing Order 19-mc-00583, Noom has filed this letter motion publicly on ECF and the proposed sealed
documents contemporaneously under seal via ECF.
Sincerely,
/s/ Charles Low
Charles Low
Counsel for Defendants

The Court agrees that the transcript at ECF No. 311 should be
redacted, but only to the limited extent that Defendants propose.
Accordingly, Defendants must submit the Southern District's
Redaction Request Form to the Court Reporter by May 11, 2021.
The Court also respectfully requests that the Clerk of Court
ensure that the document filed at ECF No. 317 remain under seal,
with access limited to the parties and the Court.

Date: April 28, 2021

Cooley LLP 55 Hudson Yards New York, NY 10001-2157
t: [phone] f: [phone] cooley.com