UMB Bank, N.A. v. Bristol-Myers Squibb Company

Filing 78

ORDER: granting 72 Letter Motion to Seal. The motion to seal is granted temporarily. The Court will assess whether to keep the document at issue sealed or redacted when resolving the underlying dispute. The Clerk of Court is directed to terminate ECF No. 72. SO ORDERED. (Signed by Judge Jesse M. Furman on 2/05/2024) (ama)

DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020-1104
T 212.335.4500
F 212.335.4501
W www.dlapiper.com

JOHN J. CLARKE, JR.
[e-mail]
T 212.335.4920

February 2, 2024

By ECF
Hon. Jesse M. Furman
United States District Court for the
Southern District of New York
40 Foley Square
New York, New York 10007
Re:

UMB Bank, N.A. v. Bristol-Myers Squibb Company, No. 21 Civ. 4897 (JMF)

Dear Judge Furman:
We represent defendant Bristol-Myers Squibb Company (“BMS”) in this action. In
accordance with the Court’s Individual Rules and Practices in Civil Cases, I am writing to request
leave of the Court to file under seal, or with certain redactions, some of the documents being
submitted today in support of BMS’s motion to dismiss this action for lack of subject matter
jurisdiction.
The materials at issue were produced or designated confidential by plaintiff
UMB Bank N.A. (“UMB”), non-party Pentwater Capital Management LP (“Pentwater”), and nonparty Okapi Partners LLC (“Okapi”). We did not have sufficient time to complete our pre-filing
conferences with these producing or designating parties, and we were requested to proceed with
filing these materials under seal subject to their submission of letters to the Court within three
business days. We are hopeful that the parties will be able to resolve most of the remaining
confidentiality issues within that period.
In support of the BMS motion to dismiss, we have attached several exhibits to the
declaration of John J. Clarke, Jr. dated February 2, 2024 (“Clarke Declaration”) that were
designated by one of the foregoing producing parties with some level of confidentiality protection
under the Stipulation and Order Governing Confidentiality of Discovery Materials and
Preservation of Privilege entered by the Court on August 9, 2022. ECF No. 41. Some of those
exhibits were filed as exhibits to our letter to the Court dated November 16, 2023 [ECF No. 63],

Hon. Jesse M. Furman
U.S. District Court, S.D.N.Y.
February 2, 2024
Page 2
with the consent of the designating party. The following documents, or portions of them, were not
filed publicly with that letter.
1.
UMB has designated confidential or highly confidential Exhibits 12, 17, 19, 21, 22,
25, 26, 27, 28, and 29 to the Clarke Declaration.
2.
Okapi has designated confidential or highly confidential Exhibits 13, 14, 15, and
20 to the Clarke Declaration.
3.
Exhibits 2, 4, and 5 to the Clarke Declaration are excerpts from the depositions in
this action of UMB, Pentwater, and Okapi, respectively. Those entities have designated the
depositions confidential or highly confidential and are reviewing the excerpts to determine whether
to continue to maintain their confidentiality designation under the stipulated protective order.
BMS agrees that certain of the exhibits, or portions of them, include information such as
personal identifying information or sensitive non-public financial information that should not be
filed publicly. BMS therefore would not object to a sealing order for the following documents or
the identified portions of them:
a.
The attachments to Clarke Declaration Exhibit 17 are signature pages
provided by various investors for the “Instrument of Removal, Appointment and
Acceptance” that was delivered by UMB to BMS and Equiniti Trust Company (“Equiniti”)
on December 18, 2020. The Instrument itself, and the cover letter, previously have been
filed publicly. [ECF No. 63-5]. BMS does not object to filing the attachments to the
Instrument under seal.
b.
The attachments to Clarke Declaration Exhibits 21 and 22 include banking
information and similar non-public financial information for various investors that were
included in exhibits to a letter dated December 31, 2020 sent by UMB to BMS and Equiniti
regarding the alleged change in trustee. The cover letter previously was filed publicly
(without the covering email). [ECF No. 63-8]. BMS does not object to filing the
attachments to the December 31, 2020 letter under seal.
c.
Clarke Declaration Exhibit 25 is an email dated September 7, 2021 from a
representative of UMB to a representative of Equiniti attaching a list of registered Holders
of CVRs as of December 31, 2020. The registered Holder list includes personal identifying
information and non-public financial information for various individuals and entities.
BMS does not object to filing Exhibit 25 under seal.
d.
Clarke Declaration Exhibit 26 is a copy of the Prepaid Forward Agreement
dated February 23, 2021 among UMB and various other parties. UMB originally
designated this document “Confidential – Attorneys Eyes Only,” but later reduced the
designation to Highly Confidential in response to our objection. BMS does not believe the
agreement contains sensitive personal or business information that would warrant that
confidentiality designation or require filing under seal. However, BMS has informed UMB

Hon. Jesse M. Furman
U.S. District Court, S.D.N.Y.
February 2, 2024
Page 3
that it would not object to filing the Prepaid Forward Agreement with limited redactions
so that the specific amounts invested by each of the Initial Investors are not publicly
disclosed.
BMS separately is filing on the public docket a redacted version of the memorandum of
law in support of the motion to dismiss. The limited redactions temporarily shield from public
view any quotation from the materials referred to above or descriptions that might reveal
information that a designating party might consider confidential. We are submitting under seal an
unredacted copy of the memorandum of law in which the proposed redactions have been
highlighted.
Respectfully submitted,
Of Counsel:
DLA PIPER LLP (US)
Jessica A. Masella
Steven M. Rosato
Jessica P. Wright

/s/ John J. Clarke, Jr.
John J. Clarke, Jr

The motion to seal is granted temporarily. The Court will assess whether to keep the
document at issue sealed or redacted when resolving the underlying dispute. The
Clerk of Court is directed to terminate ECF No. 72.
SO ORDERED.
February 5, 2024