Better Holdco, Inc. v. Beeline Loans, Inc.

Filing 217

ORDER: granting #191 Letter Motion to Seal. Plaintiff's request is granted. Plaintiff shall file the unredacted versions of its Memorandum of Law in Support of its Motion to Exclude or Strike and Exhibits 3, 4, 6, 7, and 30 to the Beaumont Declaration under seal. Plaintiff shall refile Exhibit 28 to the Beaumont Declaration, Dkt. 195, under seal. SO ORDERED. (Signed by Judge John P. Cronan on 5/09/2022) (ama)

Case 1:20-cv-08686-JPC-SN Document 217 Filed 05/09/22 Page 1 of 3

PRIYANKA WITYK
[e-mail]
212.833.1193

May 3, 2022
BY E-MAIL & ECF
Honorable John P. Cronan
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street, Room 1320
New York, NY 10007
Re:

Better Holdco, Inc. v. Beeline Loans, Inc., No. 1:20-cv-08686 (JPC) (SN)

Dear Judge Cronan:
This firm represents plaintiff Better Holdco, Inc. (“Better”) in the abovereferenced action. Pursuant to Rule 4.B.ii of the Court’s Individual Rules and Practices in
Civil Cases (“Rules”), Better respectfully requests leave to file certain documents under seal
or with redactions in connection with its Motion to Exclude or Strike the Opinions of
Defendant’s Proposed Experts (“Motion to Strike”), which is being filed concurrently with
this letter motion.
Better’s Confidential Documents and Information
Better seeks to file under seal certain documents that it has designated as
Confidential Discovery Material under the Amended Protective Order. (See Dkt. No. 101.)
While the documents Better seeks leave to file under seal are “judicial
documents” to which a presumption of public access applies, see Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119 (2d Cir. 2006), that presumption is to be balanced against
countervailing factors, such as whether the materials at issue contain commercially sensitive
and proprietary information. See Playtex Prods., LLC v. Munchkin, Inc., No. 14-cv-1308
(RJS), 2016 WL 1276450, at *11 (S.D.N.Y. Mar. 29, 2016) (granting motion to seal
information reflecting sales, revenues, and marketing strategies because disclosure could
cause competitive harm). The presumption can be overcome when the disclosure of
information about confidential business strategy, financial, marketing and promotional
expenses, and other sensitive information could place a party at a competitive disadvantage.
See, e.g., New York v. Actavis, No. 14-cv-7473, 2014 WL 5353774, at *3-4 (S.D.N.Y. Oct.
21, 2014) (granting motion to seal business plans, profit projections, and budgets).
The documents which Better seeks leave to file under seal reflect three
categories of Better’s confidential business information whose disclosure could place Better
at a competitive disadvantage.

Case 1:20-cv-08686-JPC-SN Document 217 Filed 05/09/22 Page 2 of 3
Hon. John P. Cronan

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May 3, 2022

First, Exhibit 30 to the Beaumont Declaration contain or refer to information
from Better’s Operating Model, which consists of dozens of spreadsheets reflecting highly
confidential financial information. See Beaumont Decl. Ex. 30, Holzen Rep. text
accompanying footnotes 340-43 and 345-47. Exhibits 3, 7, and 30 to the Beaumont
Declaration similarly contain Better’s sensitive financial information relating to its profits,
losses, operating costs, and employee salaries. See Beaumont Decl. Ex. 3, Garrett Rep. at 7;
Ex. 7, Weisheit Rep. at 50 and Schedules 3, 3.1, 5, 7; Ex. 30, Holzen Rep. ¶¶ 87, 132, and
exhibits 2.3, 3.1-3.3, 3.5-3.6, 3.8, and 4.3-4.5, 6.1. These materials therefore should be
sealed. See Actavis, 2014 WL 5353774, at *4.
Second, Better’s confidential agreements with five of its marketing partners
contain non-public pricing and other terms that Better negotiated with these partners, which
give Better a competitive advantage. See Beaumont Decl. Ex. 4, Garrett Tr. 78:15-80:9;
80:23-81:5; 88:25-89:25; 100:12-18; 100:22-101:3; 133:12-134:3; 134:23-25; 135:14-25;
136:25-137:7; 137:17-20; 137:24-138:5; 138:12-140:8; Ex. 7, Weisheit Rep. at 29-30; Ex.
30, Holzen Rep. ¶ 32. The marketing agreements therefore also should be sealed. See
Actavis, 2014 WL 5353774, at *4 (granting motion to seal information related to promotional
budgeting).
Third, Exhibits 3-4, 6-7, and 30 to the Beaumont Declaration contain or refer
to confidential information about Better’s marketing strategies and costs. See Beaumont
Decl. Ex. 4 Garrett Tr. 111:16-22; Ex. 6, Zaiger Tr. 107:21-108:22; 109:10-20; 120:21122:19; 123:22-124:22; 126:9-17; 130:10-21; 133:9-134-2; 142:19-143:25; 146:21-147:10;
166:17-167:4; Ex. 3, Garret Rep. at 6; Ex. 7, Weisheit Rep. at 24-25, 45-46; Ex. 30, Holzen
Rep. ¶¶ 90, 92-97, exhibit 5.0, 8.1 and 8.2. The competitive sensitivity of these materials
outweighs the presumption of public access, and they should be sealed. See Playtex, 2016
WL 1276450, at *11 (granting motion to seal documents reflecting marketing strategies).
Documents Designated Confidential by Beeline
Better also seeks leave to file BEE_00005206, which is Ex. 28 to the
Beaumont Declaration, under seal because Beeline has designated it as Confidential
Discovery Material under the Amended Protective Order. Better also seeks leave to file its
Memorandum of Law in Support of the Motion to Strike in redacted form to the extent that it
quotes from this document.
Better further seeks leave to file the Holzen Report, which is Ex. 30 to the
Beaumont Declaration, with redactions paragraphs 91 and 135 and exhibits 8.0 and 9.0.
Better seeks leave to redact these portions of the Holzen Report because they contain or refer
to information from documents that Beeline has designed as Confidential Discovery Material
under the Amended Protective Order. (Those documents were produced with Bates numbers
BEE_00004946-4958, BEE_00005141, BEE_00018665-18686, BEE_00020965, and
BEE_00041488. They are not being filed with the Court.)
On April 29, 2022, I spoke with counsel for Beeline, Susan Mason, and
requested that Beeline reconsider its designations of the documents listed above as

Case 1:20-cv-08686-JPC-SN Document 217 Filed 05/09/22 Page 3 of 3
Hon. John P. Cronan

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May 3, 2022

Confidential Discovery Material. Ms. Mason agreed to withdraw Beeline’s designations for
a number of documents, and declined to change its designations for the above-listed
documents. Better takes no position regarding the need for sealing the above-listed
documents and reserves the right to challenge Beeline’s designations of them as Confidential
Discovery Material.
***
For the foregoing reasons, Better respectfully requests permission to redact
the following portions of exhibits to the Beaumont Declaration:


Ex. 6: Zaiger Tr. 107:21-108:22; 109:10-20; 120:21-122:19; 123:22-124:22;
126:9-17; 130:10-21; 133:9-134-2; 142:19-143:25; 146:21-147:10; 166:17167:4



Ex. 3: Garrett Rep. at 6-7



Ex. 4: Garrett Tr. 78:15-80:9; 80:23-81:5; 88:25-89:25; 100:12-18; 100:22101:3; 111:16-22; 133:12-134:3; 134:23-25; 135:14-25; 136:25-137:7;
137:17-20; 137:24-138:5; 138:12-140:8



Ex. 7: Weisheit Rep. at 24-25, 29-30, 45-46 and 50 & Schedules 3, 3.1, 5, 7



Ex. 30: Holzen Rep. ¶¶ 87, 90-97, 132 and 135, & Exhibits 2.3, 3.1-3.3, 3.53.6, 3.8, and 4.3-4.5, 5.0, 6.1, 8.0, 8.1, 8.2 and 9.0

Better also respectfully requests permission to file Exhibit 28 to the Beaumont
Declaration (BEE_00005206) under seal, and to file a redacted version of its Memorandum
of Law in Support of Motion to Exclude or Strike to the extent that it contains or refers to
information from that exhibit.
We are available at the Court’s convenience to discuss this application.
Respectfully submitted,

s/ Priyanka Wityk
Priyanka Wityk
cc:

All Counsel of Record (by ECF)

Plaintiff's request is granted. Plaintiff shall file the unredacted versions of its
Memorandum of Law in Support of its Motion to Exclude or Strike and Exhibits 3, 4,
6, 7, and 30 to the Beaumont Declaration under seal. Plaintiff shall refile Exhibit 28 to
the Beaumont Declaration, Dkt. 195, under seal.
SO ORDERED.
Date: May 9, 2022
New York, New York

_________________________
JOHN P. CRONAN
United States District Judge