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

Filing 221

ORDER granting #208 Letter Motion to Seal; granting #208 Letter Motion for Leave to File Document. The Court grants Defendant's request to file Exhibits P and W to the Modica Declaration in Support of Beeline's Motion for Summary Judgment and corresponding Exhibit C to the Modica Declaration in Support of Beeline's Motion to Exclude Plaintiff's Expert, under seal. The Court also grants Defendant's request to file Exhibits X and Y to the Modica Declaration in Support of Beeline's Motion for Summary Judgment and corresponding Exhibit E to the Modica Declaration in Support of Beeline's Motion to Exclude Plaintiff's Expert, with redactions. In light of Plaintiff's withdrawal of its confidentiality designations as to Exhibits B, F, H, and I to the Modica Declaration in Support of Beeline's Motion for Summary Judgment, Defendant's request to file these documents under seal is denied and Defendant is directed to re-file these documents publicly on the docket. The Clerk of Court is respectfully directed to close the letter motion pending at Docket 208. SO ORDERED. (Signed by Judge John P. Cronan on 5/10/2022) (jca)

Case 1:20-cv-08686-JPC-SN Document 221 Filed 05/10/22 Page 1 of 3

PRIYANKA WITYK
[e-mail]
212.833.1193

May 9, 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”) and the Court’s Order at Dkt. No. 214, Better respectfully submits this
letter to explain the need for certain documents filed in connection with defendant Beeline
Loans, Inc.’s (“Beeline”) motion for summary judgment and motion to exclude plaintiff’s
expert (the “Motions”) to remain under seal or in redacted form.
Better Withdraws the Confidentiality Designations for Exhibits B, F, H, and I
Better withdraws the confidentiality designations associated with Exhibits B,
F, H, and I to the Modica Declaration in Support of Beeline’s Motion for Summary Judgment
and agrees that these documents may be filed on the public docket. 1
The Remaining Documents in Beeline’s Letter-Motion Should Remain Under Seal
Exhibits P, W, 2 X, and Y 3 to the Modica Declaration in Support of Beeline’s
Motion for Summary Judgment should remain under seal or in redacted form. Although
these documents 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 or a third party’s private
information. See Playtex Prods., LLC v. Munchkin, Inc., No. 14-cv-1308 (RJS), 2016 WL
Pursuant to Rule 4.B.i, Beeline was required to meet and confer with Better before filing its letter-motion to
seal, but failed to do so. Had Beeline met and conferred with Better, as required, Better would have confirmed
its withdrawal of the confidentiality designations for those documents.
1

This document is also Exhibit C to the Modica Declaration in Support of Beeline’s Motion to Exclude
Plaintiff’s expert. (See Dkt. No. 211.)

2

This document is also Exhibit E to the Modica Declaration in Support of Beeline’s Motion to Exclude
Plaintiff’s expert. (See Dkt. No. 211.)

3

Case 1:20-cv-08686-JPC-SN Document 221 Filed 05/10/22 Page 2 of 3
Hon. John P. Cronan

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May 9, 2022

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).
Indeed, the presumption of public access can be overcome when the disclosure of
information about confidential business strategy, financials, 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), or when
sealing would preserve a third party’s personal privacy interests. See United States v.
Amodeo, 71 F.3d 1044, 1050-51 (2d. Cir. 1995) (“privacy interests of innocent third
parties ... should weigh heavily in a court’s balancing equation”) (citation omitted).
Exhibits W, X, and Y are the expert reports of Better’s damages expert,
Stephen Holzen, and two of Beeline’s proffered experts: Joseph Garrett and Karl Weisheit.
As explained in Better’s letter-motion to seal, Dkt. No. 191, these documents contain or refer
to (1) information from Better’s Operating Model, which consists of dozens of spreadsheets
reflecting highly confidential financial information, (2) Better’s confidential agreements with
five of its key marketing partners, which contain non-public pricing and other terms that give
Better a competitive advantage, and (3) confidential information about Better’s marketing
strategies and costs. See Modica Decl., Ex. W, Holzen Rep. at ¶¶ 32, 87, 90, 92-97, 132, text
accompanying footnotes 340-43 and 345-47, and Exhibits 2.3, 3.1-3.3, 3.5-3.6, 3.8, 4.3-4.5,
5.0, 6.1, 8.1-8.2; Ex. X, Garrett Rep. at 6-7; Ex. Y, Weisheit Rep. at 24-25, 29-30, 45-46, 50
and Schedules 3, 3.1, 5, 7. The competitively sensitive nature of this information outweighs
the presumption of public access and, accordingly, these documents should remain under
seal. See Actavis, 2014 WL 5353774, at *4 (granting motion to seal information related to
profit and other financial projections, business plans, and promotional budgeting); Playtex,
2016 WL 1276450, at *11 (granting motion to seal documents reflecting product
development and marketing strategies). Furthermore, the Court already approved the
redaction and sealing of these documents in a prior Order. (See Dkt. No. 217.)
Exhibit P is a confidential settlement agreement between non-party Jack
Abramowitz and Better. The settlement agreement references non-party Abramowitz’s
personal equity holdings in Better, limitations concerning non-party Abramowitz’s future
employment, and otherwise does not contain any information relevant to the instant lawsuit. 4
Given non-party Abramowitz’s and Better’s legitimate privacy interests in maintaining the
confidentiality of the terms of the settlement agreement and the document’s irrelevance to the
claims and defenses asserted in this case, Exhibit P should remain under seal. See
Chigirinskiy v. Panchenkova, 319 F. Supp. 3d 718, 740 (S.D.N.Y. 2018) (permitting
redaction of settlement agreement involving nonparties with a strong privacy interest and
relating to issues with no bearing on the adjudication of the parties’ motion); Louis Vuitton
Malletier, S.A. v. Hyundai Motor America, No. 10-cv-1611 (PKC), 2012 WL 1022258, at *3

Although the terms of the settlement agreement have no bearing on this case, Better notes that non-party
Abramowitz also signed an affidavit in connection with the settlement which sets forth facts that are highly
relevant to this litigation. Better recognizes the public’s right to access that affidavit and, indeed, has already
filed the affidavit on the public docket. (See, e.g., Dkt. 190, Ex. 10.)
4

Case 1:20-cv-08686-JPC-SN Document 221 Filed 05/10/22 Page 3 of 3
Hon. John P. Cronan

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May 9, 2022

(S.D.N.Y. Mar. 22, 2012) (permitting redaction of portions of confidential settlement
agreement with third-party that were not relevant to the ongoing litigation).
***
For the foregoing reasons, and in accordance with the Court’s Order at Dkt.
No. 217, Better respectfully requests that Exhibits P, W, X, and Y to the Modica Declaration
in Support of Beeline’s Motion for Summary Judgment (and any corresponding Exhibits to
Beeline’s motion to exclude Better’s damages expert) remain under seal or in redacted form.
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)

The Court grants Defendant's request to file Exhibits P and W to the Modica Declaration in Support of
Beeline's Motion for Summary Judgment and corresponding Exhibit C to the Modica Declaration in
Support of Beeline's Motion to Exclude Plaintiff's Expert, under seal. The Court also grants
Defendant's request to file Exhibits X and Y to the Modica Declaration in Support of Beeline's Motion
for Summary Judgment and corresponding Exhibit E to the Modica Declaration in Support of Beeline's
Motion to Exclude Plaintiff's Expert, with redactions. In light of Plaintiff's withdrawal of its
confidentiality designations as to Exhibits B, F, H, and I to the Modica Declaration in Support of
Beeline's Motion for Summary Judgment, Defendant's request to file these documents under seal is
denied and Defendant is directed to re-file these documents publicly on the docket.
The Clerk of Court is respectfully directed to close the letter motion pending at Docket 208.
SO ORDERED.
Date: May 10, 2022
New York, New York

_________________________
JOHN P. CRONAN
United States District Judge