Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 1 of 7 PageID #: 19505
`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 1 of 7 PagelD #: 19505
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`EXHIBIT B
`EXHIBIT B
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 2 of 7 PageID #: 19506
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-252 (MSG)
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Plaintiffs,
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`v.
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`MODERNA, INC. and MODERNATX, INC.
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`Defendants.
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`MODERNA, INC. and MODERNATX, INC.,
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`Counterclaim-Plaintiffs,
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`v.
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Counterclaim-Defendants.
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`DECLARATION OF HAMILTON BENNETT
`IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 3 of 7 PageID #: 19507
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`I, Hamilton Bennett, hereby declare as follows:
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`1.
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`I am Senior Director, Vaccine Access and Partnerships, at ModernaTX, Inc.
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`(hereinafter, “Moderna”). In this role, I am familiar with Moderna’s negotiations and
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`communications with the United States Government regarding Moderna’s COVID-19 Vaccine, as
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`well as third-party licensing negotiations and agreements. Specifically, I am familiar with the fact
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`that Moderna maintains this sensitive information as confidential, 1 and I am familiar with the
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`extensive efforts Moderna takes to protect its confidential information. I have personal knowledge
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`of the facts stated in this declaration or have become aware of such facts through my role at
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`Moderna. If called upon to testify, I could and would competently testify thereto.
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`2.
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`I write this declaration in support of Moderna’s request to avoid disclosure of
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`sensitive and confidential information on the public record. I discuss below how and why Moderna
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`keeps certain business information confidential, and the serious harm that would result to Moderna
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`from disclosure of this information to Moderna’s competitors.
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`3.
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`I understand this case relates to Moderna’s COVID-19 Vaccine, known as mRNA-
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`1273 or “SpikeVax.”
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`4.
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`I have been provided and have reviewed the information that Moderna proposes to
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`redact from Plaintiffs’ Letter Brief in Support of Plaintiffs’ Motion to Compel and the exhibits
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`thereto (collectively, “Plaintiffs’ Motion to Compel Bancel Documents”) (D.I. 285) and
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`Moderna’s Opposition to Plaintiffs’ Motion to Compel Bancel Documents and the exhibits thereto
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`1
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`I understand that the Protective Order in this case (D.I. 91) includes two categories of Protected
`Material: “Confidential” and “Highly Confidential – Outside Counsel’s Eyes Only.” I
`understand that the documents implicated by Moderna’s motion to seal include “Confidential”
`and “Highly Confidential – Outside Counsel’s Eyes Only” information. For the purposes of
`this declaration, I have used the term “confidential” to cover both categories, both of which
`should not be disclosed to the public for the reasons explained herein.
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 4 of 7 PageID #: 19508
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`(collectively, “Moderna’s Bancel Opposition”) (D.I. 294). Specifically, Plaintiffs’ Motion to
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`Compel Bancel Documents and Exhibits C–F and K–P and Exhibit T to Moderna’s Bancel
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`Opposition contain Moderna confidential information. These documents reflect Moderna
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`confidential business information regarding Moderna’s negotiations with the U.S. government, the
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`development of SpikeVax, and licensing with third-parties.
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`5.
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`It is critical to Moderna that the Court maintain under seal Moderna’s confidential
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`information. Moderna has always taken extensive measures to maintain the confidentiality of its
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`business information, including by implementing procedures that restrict access to sensitive
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`information even within Moderna. Employees have confidentiality obligations as part of their
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`employment and are provided guidance regarding how to treat sensitive information. Specifically,
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`confidential Moderna information is not to be disclosed outside of Moderna except under
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`confidentiality agreement and when necessary. Documents containing such information may be
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`marked as confidential or otherwise indicate they contain restricted or sensitive information.
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`Internal to Moderna, employee access to commercially sensitive and trade secret information is
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`often restricted on a need-to-know basis, as determined by a person’s group or role on a project.
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`Moderna has been extremely concerned about the protection of its confidential information during
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`this litigation and has been very careful to always protect this information.
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`6.
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`Moderna’s proposed redactions seek to seal portions of Plaintiffs’ Motion to
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`Compel Bancel Documents and Exhibits C–F and K–P and Exhibit T to Moderna’s Bancel
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`Opposition which refer to, quote, summarize, or otherwise disclose Moderna’s sensitive and
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`confidential business information. Specifically, the following pages of the Motion and Exhibits
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`disclose specific information concerning Moderna’s negotiations and communications with the
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`2
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 5 of 7 PageID #: 19509
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`United States Government regarding Moderna’s COVID-19 Vaccine and third-party licensing
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`negotiations and agreements:
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` Plaintiffs’ Motion to Compel Bancel Documents, page 1;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. C;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. D;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. E;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. F;
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`Plaintiffs’ Motion to Compel Bancel Documents, Ex. K;
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`Plaintiffs’ Motion to Compel Bancel Documents, Ex. L;
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`Plaintiffs’ Motion to Compel Bancel Documents, Ex. M;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. N;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. O;
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` Plaintiffs’ Motion to Compel Bancel Documents, Ex. P; and
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` Moderna’s Bancel Opposition, Exhibit T, pages 4, 6, 9, 12–14, 16.
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`7.
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`The information within these documents that Moderna proposes redacting is
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`confidential and sensitive information that Moderna does not disclose publicly, which it wishes to
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`remain confidential. There is significant competition between established vaccine suppliers,
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`including suppliers of mRNA-based vaccines. Additionally, there are companies considering
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`entering the vaccine market and companies developing mRNA-based vaccines and therapeutics
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`for other diseases or developing LNPs for mRNA-based products. Because there are so few
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`competitors in these markets, the markets are highly competitive, and any information about one
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`of the competitors, even seemingly minor information, may prove competitively advantageous.
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`The release of such information to the public, including Moderna’s competitors, would
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`significantly harm Moderna.
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`3
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 6 of 7 PageID #: 19510
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`8.
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`With respect to Moderna’s negotiations and communications with the United States
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`Government regarding Moderna’s COVID-19 Vaccine, these documents contain sensitive non-
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`public details regarding Moderna’s relationship with the Government during development of the
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`COVID-19 Vaccine. Additionally, several documents reflect internal strategy regarding
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`Moderna’s negotiations with the Government, including highly sensitive pricing information and
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`information relevant to the timing of development, none of which is public and could cause
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`Moderna competitive harm.
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`9.
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`With respect to Moderna’s contracts and negotiations with third parties, Moderna
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`owes a duty of confidentiality to these third parties which would require notice to each third party
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`prior to public disclosure. Publicly revealing Moderna’s contracts with third parties could harm
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`Moderna’s relationship with these third parties and give an unfair advantage to competitors.
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`10.
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`Based on my personal knowledge and experience in the pharmaceutical industry, I
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`believe that disclosure of this information would significantly harm Moderna by revealing
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`confidential data to its direct competitors and the public generally. If the confidential information
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`were made public, Moderna’s competitors would be able to use this information to decide where,
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`when, and how to offer directly competitive goods with full knowledge of Moderna’s business
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`relationships and pricing strategies. Moderna’s competitors would gain a significant advantage in
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`creating their own business strategies, which would put Moderna at a significant competitive
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`disadvantage, causing it real and serious harm.
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`*
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`*
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`*
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`I declare under penalty of perjury under the laws of the United States of America that the
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`foregoing is true and correct to the best of my knowledge.
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`4
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`Case 1:22-cv-00252-MSG Document 325-2 Filed 05/20/24 Page 7 of 7 PageID #: 19511
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`Executed on this May 16, 2024
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`Respectfully submitted,
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`/s/
`Hamilton Bennett
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`5
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