PharmacyChecker.com LLC v. National Association of Boards of Pharmacy et al
Filing
249
MEMO ENDORSED ORDER denying #246 Motion to Seal. ENDORSEMENT: Plaintiff's request to permanently seal the conditionally sealed materials is overbroad. Plaintiff seeks to seal the entirety of over 20 exhibits (and quotations thereto) on the basis that the exhibits contain confidential, competitively-sensitive information. However, the Court finds that any such concerns can be handled via the redaction of any such information within the exhibits, rather than fully sealing the entire exhibits. Plaintiff is to propose redactions by no later than May 13, 2022. So Ordered. (Signed by Judge Kenneth M. Karas on 5/6/22) (yv)
Case 7:19-cv-07577-KMK-PED Document 247 Filed 05/02/22 Page 1 of 4
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PharmacyChecker.com LLC,
Civil Action No. 7:19-cv-07577-KMK
PharmacyChecker.com’s
Memorandum of Law Supporting
Motion to Permanently Seal
Documents
Plaintiff,
vs.
National Association of Boards of
Pharmacy et al.,
Judge Kenneth M. Karas
Magistrate Judge Paul E. Davison
Defendants.
Plaintiff PharmacyChecker.com respectfully requests an order sealing portions
of defendants’ pre-motion summary judgment letter and associated exhibits, premotion Daubert letter and associated exhibits, and plaintiff’s responses thereto and
associated exhibits. Dkts. 233, 235, 238–239.
The disclosure of these documents, which were previously filed under
conditional seal, would cause injury to plaintiff PharmacyChecker.com’s business by
exposing confidential and competitively sensitive business information to the general
public. PharmacyChecker.com therefore requests that the Court permanently seal
these conditionally sealed materials.
ARGUMENT
While courts presume a public right of access to public court proceedings, that
right is “not absolute,” and the Court has discretion to seal confidential materials.
Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020) (quoting Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 599 (1978)). In evaluating whether to grant a sealing request, the
Court must evaluate several factors: (1) whether the document qualifies as a judicial
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document; (2) the weight of the presumption of public access; and (3) whether any
countervailing reasons outweigh the right of public access to the judicial document.
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006). This
balancing is a fact-intensive exercise is subject to review for abuse of discretion.
United States v. Amodeo, 71 F.3d 1044, 1053 (2d Cir. 1995).
Even assuming the first two factors favor a presumption of public access, there
is a countervailing reason that outweighs the right of public access here: the
confidential materials reflect sources of non-public, competitively sensitive business
information. Documents that reflect, for example, sales figures, confidential business
plans, trade secrets, or details regarding a company’s relationships with its suppliers
or customers are all appropriately restricted from public access. See, e.g., In re New
York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 410 n.4
(2d Cir. 2009) (“When litigation requires the disclosure of trade secrets, the court may
disclose certain materials only to the attorneys involved.”); Gate Guard Servs. L.P. v.
Solis, No. V-10-91, 2012 WL 4625679, at *2–3 (S.D. Tex. Sept. 30, 2012) (sealing client
identities and marketing strategy documents); In re High-Tech Emp. Antitrust Litig.,
No. 11-CV-02509-LHK, 2013 WL 163779, at *4, *9 (N.D. Cal. Jan. 15, 2013) (sealing
documents relating to parties’ strategies, competitive positions, and business
operations). All of the information plaintiff seeks to have permanently sealed are such
competitively sensitive business information that is routinely subject to sealing.
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CONCLUSION
For the foregoing reasons, plaintiff respectfully requests that the Court grant
the motion to permanently seal the conditionally sealed materials.
Respectfully submitted,
DATED: May 2, 2022
BONA LAW PC
Plaintiff's request to permanently seal the
conditionally sealed materials is overbroad.
Plaintiff seeks to seal the entirety of over 20
exhibits (and quotations thereto) on the basis
that the exhibits contain confidential,
competitively-sensitive information.
However, the Court finds that any such
concerns can be handled via the redaction of
any such information within the exhibits,
rather than fully sealing the entire exhibits.
Plaintiff is to propose redactions by no later
than May 13, 2022.
By:
/s/Aaron R. Gott
AARON R. GOTT (admitted pro hac vice)
aaron.gott@bonalawpc.com
331 2nd Avenue South #420
Minneapolis, MN 55401
(612) 824-5001
James Lerner (2371599)
james.lerner@bonalawpc.com
287 Park Avenue South, Suite 422
New York, NY 10010
(212) 634-6861
Counsel for Plaintiff
PharmacyChecker.com
5/6/22
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CERTIFICATE OF SERVICE
I, Lisa Mittwol, hereby certify that on this 2nd day of May 2022, I caused a
copy of PharmacyChecker’s Memorandum of Law Supporting Motion to Permanently
Seal Documents be served upon counsel of record via the Court’s electronic filing
system.
LISA MITTWOL
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