SanMedica International et al v. Amazon.com

Filing 147

MEMORANDUM DECISION AND ORDER granting 133 Motion to Intervene: Professor Tushnet may file a motion to unseal within 14 days of this Memorandum Decision and Order. Signed by Judge David Nuffer on 11/2/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SANMEDICA INTERNATIONAL, a Utah
limited liability company; WESTERN
HOLDINGS, LLC, a Nevada Limited Liability
Company,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER GRANTING
REBECCA L. TUSHNET’S
MOTION TO INTERVENE
PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 24(b)

v.
Case No. 2:13-cv-00169
AMAZON.COM INC., a Delaware
corporation,

District Judge David Nuffer

Defendant,
and
REBECCA L. TUSHNET, an individual,
Intervenor.

Rebecca L. Tushnet moves to intervene in the closed proceeding between SanMedica
International, LLC and Western Holdings, LLC (“Plaintiffs”) and Amazon.com, Inc. (“Amazon”)
pursuant to Federal Rule of Civil Procedure 24(b). 1 Professor Tushnet’s Motion to Intervene seeks
public access to redacted portions of the court’s summary judgment opinion (“April 15, 2015
Memorandum Decision and Order”) and the summary judgment record. 2 After careful review and
consideration of the parties’ memoranda, Professor Tushnet’s Motion to Intervene is GRANTED for the
reasons set forth below.

1

Rebecca L. Tushnet’s Motion to Intervene Pursuant to Federal Rule of Civil Procedure 24(b) and Memorandum of Points
and Authorities in Support Thereof (“Motion to Intervene”), docket no. 133, filed May 26, 2015.

2

See Memorandum Decision and Order, docket no. 130, filed under seal April 15, 2015.

BACKGROUND
Plaintiffs sued Amazon for trademark infringement and related federal and state claims. 3 The
April 15, 2015 Memorandum Decision and Order noted that the issue of interest confusion was “a close
decision,” and devoted eight pages of analysis to weighing the relevant facts about consumers’
behavior. 4 According to Professor Tushnet, many important parts of that decision were redacted in the
opinion available to the public. 5 Shortly after the opinion was filed, the case was dismissed based on the
parties’ joint stipulation. 6
Professor Tushnet is a professor at Georgetown University Law Center, specializing in
intellectual property, consumer protection, and the First Amendment. 7 She also has a blog that explores
“false advertising issues and other subjects of intellectual property. . . .” 8 Subsequent to the public filing
of the April 15, 2015 Memorandum Decision and Order, Professor Tushnet states that she blogged about
how the redacted information between Plaintiffs and Amazon “prevented readers from understanding the
Court’s application of the law of interest confusion.” 9 Professor Tushnet thus argues she has an interest
in the information that influenced the court’s decision in the area of interest confusion law. Therefore,
Professor Tushnet seeks intervention to challenge the protective order that allowed certain information
to be redacted from the public opinion. 10

3

Id.

4

Id. at 9–17.

5

Motion to Intervene at 3.

6

Order for Dismissal of Action with Prejudice at 2, docket no. 131, filed April 15, 2015.

7

Motion to Intervene at 1.

8

Id. at 2–3.

9

Id.

10

Id. at 1.
2

ANALYSIS
Under Federal Rule of Civil Procedure 24(b), “the court may permit anyone to intervene who: . .
. (B) has a claim or defense that shares with the main action a common question of law or fact.” 11 Rule
24 also requires the court to “consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” 12 These restrictions withstanding, permissive intervention is
a matter that is largely decided “within the sound discretion of the district court” 13 and its finding will
only be disturbed upon a “showing of clear abuse.” 14
Neither Plaintiffs nor Professor Tushnet dispute the timeliness of Professor Tushnet’s attempt to
intervene. 15 What is in dispute, however, is (1) whether Professor Tushnet satisfies Rule 24’s
requirement of a common question of law or fact, and (2) whether she has the requisite standing for
intervention.
1. Common Question of Law or Fact Is Satisfied
The Tenth Circuit has held that permissive intervention is the correct procedure for non-parties
who seek access to judicial records 16 Permissive intervention requires that there be a question of law or
fact in common with the underlying action. Some circuit courts have held that “[t]here is no reason to
require . . . a strong nexus of fact or law when a party seeks to intervene only for the purpose of
modifying a protective order.” 17 But the parties dispute whether a strong nexus of fact or law is required
in the Tenth Circuit.
11

Fed. R. Civ. P. 24(b)(1).

12

Fed. R. Civ. P. 24(b)(3).

13

United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990).

14

Shump v. Balka, 574 F.2d 1341, 1345 (10th Cir. 1978).

15

See Plaintiffs’ Memorandum in Opposition to Rebecca L. Tushnet’s Motion to Intervene Pursuant to Federal Rule of Civil
Procedure 24(b) (“Opposition Memorandum”), docket no. 142, filed July 24, 2015. Amazon has reached an agreement with
Professor Tushnet regarding unsealing certain portions of the Summary Judgment Decision and record. See Stipulated
Motion by Defendant Amazon and Proposed Intervenor Tushnet to Unseal Certain Portions of the Summary Judgment
Decision and Record, docket no. 145, filed Jul. 31, 2015.
16

United Nuclear, 905 F.2d at 1427.

17

Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470, 473–474 (9th Cir. 1992) (citing United Nuclear, 905 F.2d at 1427).
3

The Tenth Circuit addressed permissive intervention for non-parties who seek to challenge
protective orders in United Nuclear Corporation v. Cranford Insurance Company. 18 Plaintiffs argue that
the language in United Nuclear’s holding requires “some nexus of fact or law between the proposed
intervenor’s lawsuit and the instant case.” 19 They contend that Professor Tushnet “is not involved in a
case of similar facts or law; she merely has an academic interest in certain aspects of the summary
judgment decision and the parties’ briefing.” 20 Professor Tushnet, on the other hand, argues that the
Plaintiffs’ reading “twist[s] the Tenth Circuit’s statement . . . into a requirement that (a) the intervenor
needs to show some connection to the case beyond an interest in sealed documents from the case . . . or
(b) that intervention is limited to individuals who seek to use the documents in collateral litigation.” 21
Neither reading is correct, according to Professor Tushnet.
Plaintiffs’ interpretation of United Nuclear unjustifiably narrows the Tenth Circuit’s relaxed
standards for intervenors who wish to challenge a protective order. In United Nuclear, collateral litigants
sought intervention “for the sole purpose of seeking modification of the protective order and the order
sealing the record . . . .” 22 The Tenth Circuit held that “[w]hen a collateral litigant seeks permissive
intervention solely to gain access to discovery subject to a protective order, no particularly strong nexus
of fact or law need exist between the two suits.” 23 Consequently, Plaintiffs argue that only collateral
litigants seeking to challenge protective orders should be allowed to rely on a nexus of fact or law that is
not particularly strong. 24

18

905 F.2d 1424 (10th Cir. 1990).

19

Opposition Memorandum at 2.

20

Id.

21

Rebecca L. Tushnet’s Reply in Support of Her Motion to Intervene Pursuant to Federal Rule of Civil Procedure 24(b)
(“Reply”) at 1–2, docket no. 146, filed August 24, 2015.
22

United Nuclear, 905 F.2d at 1426.

23

Id. at 1427.

24

Opposition Memorandum at 2 (emphasis added).
4

Though United Nuclear is concerned with collateral litigants, it does not specify that only
collateral litigants are excused from showing a strong nexus of fact or law. The decision does not
address any intervenors other than collateral litigants. 25 The parties have cited no Tenth Circuit
precedent regarding other types of intervenors, but decisions from other circuits can help. 26 The
Seventh Circuit found that “every court of appeals to have considered the matter has come to the
conclusion that Rule 24 is sufficiently broad-gauged to support a request of intervention for the purposes
of challenging confidentiality orders.” 27 “The right to intervene to challenge a closure order is rooted in
the public’s well-established right of access to public proceedings.” 28 Specifically dealing with the
“common question of law or fact” element of Rule 24(b), the Eighth Circuit stated that where a party is
seeking to intervene for the limited purpose of unsealing judicial records, “it is the public’s interest in
the confidentially of the judicial records that . . . [is] a question of law . . . in common between the
Parties [to the original suit] and the [would-be intervenor].” 29 The Third Circuit went so far as to say
that any party challenging a confidentiality order “meet[s] the requirement of [Rule 24] that their claim
must have ‘a question of law or fact in common’ with the main action.” 30
Here, Professor Tushnet’s interest in the redacted information to educate the public regarding
interest confusion law, founded in the public’s common law right of access to judicial records, satisfies
this legal predicate for intervention.

25

See generally United Nuclear, 905 F.2d. at 1426.

26

United States v. Carson, 793 F.2d 1141, 1147 (10th Cir. 1986) (stating that the Tenth Circuit “often rel[ies] upon the
analysis and decisions of other circuit courts of appeals”).
27

Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000).

28

Id.

29

Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015).

30

Pansy v. Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994).
5

2. Article III Standing Is Satisfied
When the original party drops out of the litigation, “the intervenor will then have to establish its
own standing to continue pursuing the litigation.” 31 As the proceedings between Plaintiffs and Amazon
have ended and the case is now closed, Professor Tushnet must establish her own standing to intervene.
Article III requires a showing that the intervenor “personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defendant,” 32 that the injury “fairly can be traced
to the challenged action,” and “is likely to be redressed by a favorable decision.” 33 The parties only
contest two of the three elements of standing: (a) whether Professor Tushnet suffered an injury in fact
and (b) whether the injury is likely to be redressed by a favorable decision. 34 Therefore only the first and
third prongs of the Article III analysis are addressed below.
(a) Professor Tushnet has an injury in fact for her Motion to Intervene
Plaintiffs argue that Professor Tushnet “has no legally protected interest” and thus does not have
an injury in fact to establish Article III standing. 35 Plaintiffs rely on Oklahoma Hospital Association v.
Oklahoma Publishing Company, 36 which held that a nonparty did not have standing to challenge a
protective order. 37 Though standing was ultimately denied in Oklahoma Hospital, it was because the
potential intervenors did not meet the third prong of Article III standing, not because they did not have
an injury in fact. 38 The court in Oklahoma Hospital acknowledged that a protective order prohibiting

31

San Juan Cty, Utah v. U.S., 420 F.3d 1197, 1206, n.3 (10th Cir. 2005) (citing Diamond v. Charles, 476 U.S. 54, 61–64
(1986)), affirmed, 503 F.3d 1163 (10th Cir. 2007) (en banc).

32

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).

33

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).

34

See Opposition Memorandum at 7–8.

35

Id. at 7.

36

40 F.2d 1421 (10th Cir. 1984).

37

Opposition Memorandum at 5–6.

38

Oklahoma Hosp., 748 F.2d at 1425.
6

access to documents constituted an injury in fact sufficient for Article III standing. 39 The party asserting
its First Amendment right alleged that “were it not for the protective orders, the parties would be free to
disseminate, and it would thereby be free to gather and publish, discovery documents not subject to
those orders.” 40 The Court found this to be “a sufficient allegation of injury in fact to satisfy the first
requirement for standing . . . .” 41 Because Professor Tushnet also alleges that were it not for the
protective order she would be able to gather the information from the public opinion and disseminate her
opinion on it through her blog, this is a sufficient allegation of injury in fact.
Ample authority supports Oklahoma Hospital’s decision that a protective order can infringe on a
nonparty’s First Amendment right. In United States v. Pickard, 42 the Tenth Circuit found “little doubt
that Defendants have Article III standing to seek the unsealing of documents in the file because they
claim a First Amendment interest in communicating information that they already have.” 43 The Fourth
Circuit has held that “the public right of access under the First Amendment and common law protects
individuals from the very harm suffered by [the intervenors], their injury transcends a mere abstract
injury such as a ‘common concern for obedience to law.’” 44 The Third Circuit has recognized that
“maintaining the transcripts under seal, though a passive act, was an active decision requiring
justification under the First Amendment.” 45 The Ninth Circuit has also recognized a protective order’s
potential to infringe upon “the public’s right of access to documents filed with the court . . . .” 46 Even
the Supreme Court “has recognized that newsgathering does warrant some First Amendment

39

Id. at 1424.

40

Id.

41

Id.

42

676 F.3d 1214 (10th Cir. 2012).

43

Id. at 1218, n.2.

44

Doe v. Pub. Citizen, 749 F.3d 246, 263–64 (4th Cir. 2014).

45

United States v. Antar, 38 F.3d 1348, 1363 (3d Cir. 1994).

46

United States v. Hickey, 185 F.3d 1064, 1066 (9th Cir. 1999).
7

protection,” 47 though the Court recognizes some restrictions for documents not usually public. 48
Therefore, Professor Tushnet’s interest in the redacted information in the summary judgment opinion
constitutes an injury in fact sufficient to satisfy the first prong of Article III standing.
(b) Professor Tushnet’s injury is likely to be redressed by a favorable decision
For the third prong of the Article III analysis, Plaintiffs argue that because the sealed information
Professor Tushnet seeks “meet[s] the definition of a trade secret or other categories of bona fide longterm confidentiality,” she has no right to it and thus has no method of redress. 49 Plaintiffs rely on Bond
v. Utreras 50 to conclude that a trade secret can be categorically withheld from the public. 51 But a reading
of Bond does not support this broad conclusion. 52 Instead, Bond merely recognized that documents used
in a court proceeding are “presumptively ‘open to public inspection unless they meet the definition of
trade secret or other categories of bona fide long-term confidentiality.’” 53 Bond does not create, or even
rely upon, a special category for trade secrets that would save the trade secrets from the presumption of
otherwise-public documents. 54
Even if the redacted information in the April 15, 2015 Memorandum Decision and Order were
trade secrets and made the protective order nearly impossible to reverse, Professor Tushnet’s claim
would not automatically fail since the Supreme Court has granted plaintiffs standing in cases in which it
eventually ruled against those plaintiffs on the merits of the case. 55 The standard for “likely to be
redressed by a favorable decision” does not require the court to determine if a favorable decision is
47

Oklahoma Hosp., 40 F.2d at 1421 (citing Branzburg v. Hayes, 408 U.S. 665, 681 (1972)).

48

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976).

49

Opposition Memorandum at 8.

50

585 F.3d 1061 (7th Cir. 2009).

51

Opposition Memorandum at 8–9.

52

See Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009).

53

Id. (quoting Baxter Int’l, Inc. v. Abbot Labs., 297 F.3d 544, 545 (7th Cir. 2002)).

54

Id. at 1073–74.

55

See e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153, 166 (2010); Meese v. Keene, 481 U.S. 465, 469, 485
(1987).
8

likely, but only whether a favorable decision is likely to redress the injury. Professor Tushnet seeks
intervention to make information public and redress her First Amendment injury. Because the
information would be made public if the court granted her Motion to Unseal, Professor Tushnet’s injury
is likely to be redressed by a favorable decision. Therefore, Professor Tushnet satisfies all the
requirements for Article III standing.
ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that Professor Tushnet’s Motion to
Intervene is GRANTED. 56 Professor Tushnet may file a motion to unseal within fourteen (14) days of
this Memorandum Decision and Order.
Dated November 2, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

56

Rebecca L. Tushnet’s Motion to Intervene Pursuant to Federal Rule of Civil Procedure 24(b) and Supporting
Memorandum, docket no. 133, filed May 26, 2015.
9