Case 1:20-cv-05735-LJL Document 401 Filed 05/03/22 Page 1 of 2
`
`
`
`
`
`May 3, 2022
`
`BY ECF
`The Honorable Lewis J. Liman
`United States District Court
`Southern District of New York
`Daniel Patrick Moynihan
`United States Courthouse
`500 Pearl Street
`New York, NY 10007
`
`Re: Letter Motion for Approval to Seal in In re Bystolic Antitrust Litig., Case No. 1:20-cv-
`05735 (LJL)
`Dear Judge Liman:
`I write on behalf of the Forest Defendants in the above-captioned litigation pursuant to ¶ 18 of the
`Protective Order, ECF No. 148, and this Court’s Individual Practices in Civil Cases ¶¶ 1(B) and
`2(G).
`
`On April 19, 2022, Defendants filed a letter motion to file their Memorandum of Law in Support
`of Defendants’ Motion to Dismiss the Direct Purchaser and Retailer Plaintiffs’ Third Amended
`Complaints under seal in accordance with ¶ 18 of the Protective Order. ECF No. 394. Defendants
`also contemporaneously filed their Memorandum of Law and attached Appendix under seal. ECF
`No. 395.
`
`Paragraph 18 of the Protective Order provides that, in the event a party makes an under-seal filing,
`“the Court will hold the motion to seal in abeyance for fourteen (14) calendar days for the
`Producing Party to file a letter brief in support of any proposed redactions, and as exhibits thereto,
`proposed redacted public versions of any sealed papers consistent with Rule 2(G).” Accordingly,
`Defendants submit this letter respectfully requesting that the Court approve the proposed
`redactions to their Memorandum of Law and Appendix.
`
`The proposed redactions cover the detailed financial and other commercially sensitive terms of the
`agreements produced to the Plaintiffs on a “confidential, outside counsel only basis.” See Joint
`Case Management Plan and Scheduling Order No. 1 ¶ 13, ECF No. 82; Protective Order ¶¶ 3, 10,
`ECF No. 148. The financial and other commercially sensitive terms of these agreements should
`remain confidential. See Optima Media Grp. Ltd. v. Bloomberg L.P., 2018 WL 158074, at *8
`(S.D.N.Y. Mar. 28, 2018) (granting the request for proposed redactions where they “protect
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-05735-LJL Document 401 Filed 05/03/22 Page 2 of 2
`
`The Honorable Lewis J. Liman
`May 3, 2022
`
`proprietary and commercially sensitive information”). For example, financial terms, such as the
`pricing terms redacted here, are commercially and competitively sensitive because, if disclosed,
`they could be used to the advantage of the parties’ competitors. See, e.g., EFCG, Inc. v. AEC
`Advisors, LLC, 2020 WL 7121855, at *1 (S.D.N.Y. Nov. 9, 2020) (granting the plaintiffs’ request
`to seal an order containing “confidential, commercially sensitive information which might harm
`[the plaintiff’s] competitive standing vis-à-vis defendants and other competitors”); see also Refco
`Grp. Ltd., LLC, v. Cantor Fitzgerald, L.P., 2015 WL 4298572, at *4 (S.D.N.Y. July 15, 2015)
`(finding that “disclosure would cause ‘significant and irreparable competitive injury to both
`Defendants and [a] Non-Party Entity’ because the information was ‘commercially sensitive’”).
`The redactions are narrowly tailored and target only this commercially sensitive information. See
`Lugosch v. Pyramid Co., 435 F.3d 110, 124 (2d Cir. 2006) (holding that sealing is appropriate
`where “narrowly tailored” to “preserve higher values”).
`
`Due to these confidentiality concerns surrounding this information, including the proprietary and
`commercially sensitive nature of the information and the competitive implications of public
`disclosure, Defendants respectfully request that this information remain under seal. See Optima
`Media Grp., 2018 WL 158074, at *8.
`
`Counsel for Defendants have conferred with counsel for Plaintiffs on the relief requested in this
`sealing motion. Counsel for the Walgreen Plaintiffs have indicated that they consent to the
`requested relief, counsel for the CVS and Rite Aid Plaintiffs have indicated that they have no
`objection to the requested relief, and counsel for the Direct Purchaser Plaintiffs have indicated they
`“take no position” as to this sealing motion, such that there is no objection to the requested relief.
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`/s/ Celia A. McLaughlin
`Celia A. McLaughlin
` +1-202-637-6167
`E cmclaughlin@whitecase.com
`
`
`
`
`cc:
`All Counsel of Record (by ECF)
`
` T
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`