`
`
`
`Alfred R. Fabricant (pro hac vice)
`afabricant@fabricantllp.com
`Peter Lambrianakos (pro hac vice)
`plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (pro hac vice)
`vrubino@fabricantllp.com
`Enrique Iturralde (pro hac vice)
`eiturralde@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Road, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Benjamin T. Wang (CA SBN 228712)
`bwang@raklaw.com
`Minna Y. Chan (CA SBN 305941)
`mchan@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facsimile: (310) 826-9226
`
`Attorneys for Defendant/Counterclaim Plaintiff
`AGIS Software Development LLC
`
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`BAKER BOTTS L.L.P.
`
`
`
`
`LYFT, INC.,
`
`Plaintiff,
`
`v.
`AGIS SOFTWARE DEVELOPMENT LLC,
`Defendant.
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No. 5:21-cv-04653-BLF
`
`DECLARATION OF VINCENT J. RUBINO
`IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER
`PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
`Dept:
` Courtroom 3 – 5th Floor
`Judge:
` Hon. Beth Labson Freeman
`
`Trial date: October 16, 2023
`
`
`DECLARATION OF VINCENT RUBINO IN SUPPORT OF LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
`Case No. 5:21-cv-
`04653-BLF
`
`
`
`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 2 of 7
`
`
`
`
`
`I, Vincent J. Rubino, hereby declare as follows:
`1.
`I am a partner at the law firm of Fabricant LLP and counsel for AGIS Software
`Development LLC (“AGIS Software”). I am admitted to practice before this Court. I have
`personal knowledge of the facts stated in this declaration and can and would testify truthfully
`thereto if called upon to do so.
`2.
`Pursuant to Civil L.R. 79-5, 7-11, and the Court’s Standing Order Governing
`Administrative Motions to File Materials Under Seal, I submit this declaration in support of
`Plaintiff Lyft Inc.’s (“Lyft”) Motion to Consider Whether Another Party’s Material Should be
`Sealed (“Motion”) (Dkt. 79).
`3.
`AGIS Software has determined that the information requested to be sealed is
`narrowly tailored and able to overcome the presumption in favor of access to court records. AGIS
`Software also submits that there are compelling reasons to grant Lyft’s Motion to Consider
`Whether Another Party’s Material Should Be Sealed.
`4.
`Specifically, the following documents submitted in connection with Lyft’s Motion
`should be sealed:
`
`Document
`
`ECF or
`Ex. No.
`ECF 78 Plaintiff Lyft,
`Inc.’s
`Motion for Leave
`to File
`First Amended
`Complaint
`
`Portions to be Sealed Reason(s) for Sealing
`
`Highlighted Portions
`at:
`• Page 5: lines 6-12,
`18, 23-26;
`• Page 6: line 4;
`• Page 7: lines 13-14
`
`
`The highlighted portions
`disclose information from
`Exhibits 7 and 11 to Plaintiff
`Lyft, Inc.’s Motion for Leave
`to File First Amended
`Complaint, which AGIS
`Software Development LLC
`(“AGIS Software”)
`designated as highly
`confidential. These highlighted
`portions contain confidential financial
`information, such as AGIS Software’s
`confidential bank records. They also
`contain highly confidential settlement
`licenses and negotiations with third
`parties, and which are covered by
`confidentiality provisions in the
`written agreements. Revealing the
`identity and nature of third parties who
`DECLARATION OF VINCENT RUBINO IN SUPPORT OF LYFT’S MOTION TO
`Case No. 5:21-cv-
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`04653-BLF
`SEALED (DKT. 79)
`
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`BAKER BOTTS L.L.P.
`
`
`
`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 3 of 7
`
`
`
`have entered into licenses and/or
`settlement agreements with AGIS
`Software would be harmful if its
`contents became known to competitors
`of these third parties, would cause
`AGIS Software harm, and also violate
`the confidentiality provisions in those
`third party agreements. Moreover, the
`parties to these agreements have
`maintained the confidentiality of the
`information contained in the license
`agreements. See Powertech Tech., Inc.
`v. Tessera, Inc., 2013 WL 12324116,
`at *19 (N.D. Cal. April 15, 2013)
`(granting a motion to seal a draft
`license agreement with a third party);
`see also In re Elec. Arts, Inc., 298 Fed.
`Appx. 568, 569 (9th Cir. 2008)
`(finding the Court abused its discretion
`when it refused to seal “pricing terms,
`royalty rates, and guaranteed minimum
`payment terms” found in a license
`agreement); Nixon v. Warner
`Commc'ns, Inc., 435 U.S. 589, 598
`(1978) (holding that “sources of
`business information that might harm a
`litigant’s competitive standing” may
`give rise to a compelling reason to
`seal).
`These highlighted portions that AGIS
`requests be sealed contain confidential
`financial information, such as AGIS
`Software’s confidential bank records.
`They also contain highly confidential
`settlement licenses and negotiations
`with third parties, and which are
`covered by confidentiality provisions
`in the written agreements. They also
`contain information regarding the
`corporate structure and contents of
`agreements between business entities,
`including the identities of shareholders.
`Revealing the identity and nature of
`third parties who have entered into
`licenses and/or settlement agreements
`with AGIS Software would be harmful
`
`ECF
`78-2
`
`Exhibit 1 to
`Declaration
`of Bethany R.
`Salpietra
`ISO Plaintiff
`Lyft, Inc.’s
`Motion for Leave
`to File
`First Amended
`Complaint (First
`Amended
`Complaint)
`
`Highlighted Portions
`at:
`• Page 5: lines 18-22
`• Page 14: lines 13-
`17;
`• Page 15: lines 25-
`28;
`• Page 16: lines 15-
`16, 20-27;
`
`
`AGIS Software submits
`that Lyft’s proposals to
`seal the following
`portions are
`unnecessary and do not
`require redaction:
`
`Case No. 5:21-cv-
`04653-BLF
`
`
`DECLARATION OF VINCENT RUBINO IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
` 2
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`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 4 of 7
`
`
`
`• Page 4: lines 8-10,
`16-17;
`• Page 15: lines 1,
`16-19,
`• Page 16: lines 26-
`27,
`• Page 17: lines 5-7,
`12-13.
`
`Although Lyft had
`proposed the “Entire
`Document” be sealed in
`Lyft’s Motion, AGIS
`Software requests only
`the following portions
`be sealed at:
`• Page 6: lines 4-
`8; 24-27;
`• Page 7: lines 1-
`7; 13-17; 26-27;
`• Page 8: lines
`22-27;
`• Page 9: line 1;
`• Page 10: lines
`27-28;
`• Page 11: lines
`1-11;
`• Page 12: lines
`3-28;
`
`DECLARATION OF VINCENT RUBINO IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
`if its contents became known to
`competitors of these third parties,
`would cause AGIS Software harm, and
`also violate the confidentiality
`provisions in those third party
`agreements. Moreover, the parties to
`these agreements have maintained the
`confidentiality of the information
`contained in the license agreements.
`See Powertech Tech., Inc. v. Tessera,
`Inc., 2013 WL 12324116, at *19 (N.D.
`Cal. April 15, 2013) (granting a motion
`to seal a draft license agreement with a
`third party); see also In re Elec. Arts,
`Inc., 298 Fed. Appx. 568, 569 (9th Cir.
`2008) (finding the Court abused its
`discretion when it refused to seal
`“pricing terms, royalty rates, and
`guaranteed minimum payment terms”
`found in a license agreement); Nixon v.
`Warner Commc'ns, Inc., 435 U.S. 589,
`598 (1978) (holding that “sources of
`business information that might harm a
`litigant’s competitive standing” may
`give rise to a compelling reason to
`seal).
`These portions that AGIS requests be
`sealed contain confidential financial
`information, such as AGIS Software’s
`confidential bank records. They also
`contain highly confidential settlement
`licenses and negotiations with third
`parties, and which are covered by
`confidentiality provisions in the
`written agreements. They also contain
`information regarding the corporate
`structure and contents of agreements
`between business entities, including
`the identities of shareholders.
`Revealing the identity and nature of
`third parties who have entered into
`licenses and/or settlement agreements
`with AGIS Software would be harmful
`if its contents became known to
`competitors of these third parties,
`would cause AGIS Software harm, and
`
`Case No. 5:21-cv-
`04653-BLF
`
` 3
`
`
`
`ECF
`78-8
`
`Exhibit 7 to
`Declaration
`of Bethany R.
`Salpietra
`ISO Plaintiff
`Lyft, Inc.’s
`Motion for Leave
`to File
`First Amended
`Complaint
`(Defendant
`AGIS Software’s
`First
`Supplemental
`Objections and
`Responses to Lyft
`Inc.’s
`First Set of
`Jurisdictional
`Interrogatories)
`
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`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 5 of 7
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`ECF
`78-12
`
`Exhibit 11 to
`Declaration of
`Bethany
`R. Salpietra ISO
`Plaintiff Lyft,
`Inc.’s
`Motion for Leave
`to File
`First Amended
`Complaint
`(30(b)(6)
`Deposition
`Transcript of
`Thomas Meriam,
`dated
`March 22, 2022)
`
`also violate the confidentiality
`provisions in those third party
`agreements. Moreover, the parties to
`these agreements have maintained the
`confidentiality of the information
`contained in the license agreements.
`See Powertech Tech., Inc. v. Tessera,
`Inc., 2013 WL 12324116, at *19 (N.D.
`Cal. April 15, 2013) (granting a motion
`to seal a draft license agreement with a
`third party); see also In re Elec. Arts,
`Inc., 298 Fed. Appx. 568, 569 (9th Cir.
`2008) (finding the Court abused its
`discretion when it refused to seal
`“pricing terms, royalty rates, and
`guaranteed minimum payment terms”
`found in a license agreement); Nixon v.
`Warner Commc'ns, Inc., 435 U.S. 589,
`598 (1978) (holding that “sources of
`business information that might harm a
`litigant’s competitive standing” may
`give rise to a compelling reason to
`seal).
`This document discloses excerpts of
`the deposition testimony of Thomas
`Meriam, the corporate representative
`of AGIS Software. Mr. Meriam’s
`testimony includes confidential
`information regarding the corporate
`structure and employees of AGIS
`Software, and contents of agreements
`between business entities, including
`the identities of shareholders. They
`also contain highly confidential
`settlement licenses and negotiations
`with third parties, and which are
`covered by confidentiality provisions
`in the written agreements. They also
`contain confidential financial
`information, such as AGIS Software’s
`confidential bank records.
`5.
`For the reasons set forth above, AGIS Software respectfully submits that good
`cause exists for Lyft’s Motion (Dkt. 79) and AGIS Software respectfully requests the court grant
`Lyft’s Motion (Dkt. 79) with respect to the portions identified by AGIS Software above.
`
`DECLARATION OF VINCENT RUBINO IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
`• Page 13: lines
`1-28;
`• Page 14: lines
`1-28;
`• Page 15: lines
`1-28;
`• Page 16: lines
`1-28;
`• Page 17: lines
`1-21;
`• Page 20: lines
`12-14; 18-22;
`23-27;
`• Page 22: lines
`14-22;
`• Page 23: lines
`15-27.
`
`Entire Document
`
`
`Case No. 5:21-cv-
`04653-BLF
`
` 4
`
`
`
`
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`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 6 of 7
`
`
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`I declare under penalty of perjury under the laws of the United States the foregoing is true
`and correct.
` Executed April 4, 2022.
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`/s/ _Vincent J. Rubino, III____________
`Vincent J. Rubino, III, Declarant
`
`
`Case No. 5:21-cv-
`04653-BLF
`
`
`DECLARATION OF VINCENT RUBINO IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
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`Case 5:21-cv-04653-BLF Document 87 Filed 04/04/22 Page 7 of 7
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`CERTIFICATE OF SERVICE
`
`I certify that I caused the foregoing document to be electronically filed with the Clerk of
`the Court for the United States District Court for the Northern District of California using the
`CM/ECF System on April 4, 2022.
`
`I certify that all counsel of record who are deemed to have consented to electronic service
`are being served on April 4, 2022 with a copy of this document via the Court’s CM/ECF systems
`per Local Rule CV-5(a)(3). Any other counsel will be served by electronic mail, facsimile, overnight
`delivery and/or First Class Mail on this date.
`
`
`DATED: April 4, 2022
`
`
`/s/ Minna Chan
`
`
`
`
`
`
`
`Case No. 5:21-cv-
`04653-BLF
`
`
`DECLARATION OF VINCENT RUBINO IN RESPONSE TO LYFT’S MOTION TO
`CONSIDER WHETHER ANOTHER PARTY’S MATERIAL SHOULD BE
`SEALED (DKT. 79)
`
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