Plaintiffs, Defendant.

SARAH L. CAVE, United States Magistrate Judge.

By October 4, 2023, the parties shall meet and confer and file a joint letter on the docket setting forth proposed next steps in this action, including a proposed schedule and deadline for the completion of discovery.

Dated:

In determining superiority, a court examines Rule 23(b)(3)’s nonexclusive list of factors for consideration.

The document filed at ECF No. 273 shall remain as visible only to the selected parties.

Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Dear Magistrate Judge Cave: We write, pursuant to the terms of the Stipulated Protective Order (Dkt. 49, ¶ 10) and your Honor’s Individual Practice I.G.2., to respectfully seek leave to file Plaintiffs’ Opposition to Defendants’ Objections to Magistrate Judge Cave’s Report and Recommendation on Plaintiffs’ Motion for Class Certification with redactions.

The redacted portions of Plaintiffs’ Response reference documents and information that Cengage has designated as “Confidential” or “Attorney’s Eyes Only” and has sought leave to seal.

Plaintiffs will file unredacted versions via ECF using the “Selected Parties” viewing level.

Plaintiffs take no position as to whether redactions or sealing are appropriate and reserve the right to challenge Cengage’s confidentiality designations.

Defendant Cengage Learning, Inc.'s request at ECF No. 265 is GRANTED.

The redacted versions of the Court's Opinion and Order (ECF No. 265-1) and Report and Recommendation (ECF No. 265-2) shall remain as visible to the public.

The unredacted versions of the two documents (ECF Nos. 259– 60) shall remain as visible only to the Court and the parties.

The Clerk of Court is respectfully directed to continue to maintain ECF Nos. 259–60 as visible only to the selected parties, and to close ECF No. 265.

SARAH L. CAVE, United States Magistrate Judge.

The transcript at ECF No. 253 and the proposed redacted transcript at ECF No. 256 shall remain as only visible to the selected parties.

By June 9, 2023, the parties shall file publicly the redacted version of the transcript.

The Clerk of Court is respectfully directed to close ECF No. 255.

As the parties have not filed a request to redact the portion of the hearing transcript at ECF No. 251, the Clerk of Court is respectfully directed to make the transcript at ECF No. 251 available to the public.

SARAH L. CAVE, United States Magistrate Judge.

The Letter-Motions at ECF No. 244 and ECF No. 246 to file the documents at ECF No. 245 and ECF No. 247 with redactions are GRANTED.

The documents at ECF No. 245 and ECF No. 247 shall remain as only visible to the selected parties.

The Clerk of Court is respectfully directed to close ECF No. 244 and ECF No. 246.

SARAH L. CAVE, United States Magistrate Judge.

The Letter-Motion at ECF No. 237 to file the documents at ECF No. 239 with redactions is GRANTED.

The documents at ECF No. 238 shall remain as only visible to the selected parties.

The Clerk of Court is respectfully directed to close ECF No. 237.

SARAH L. CAVE, United States Magistrate Judge.

The Letter-Motion at ECF No. 234 to file the documents at ECF No. 233 with redactions is GRANTED.

The documents at ECF No. 235 shall remain as only visible to the selected parties.

The Clerk of Court is respectfully directed to close ECF No. 234.

New York, New York April 24, 2023

Sarah L. Cave Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Your Honor: We write on behalf of Defendant Cengage Learning, Inc. Pursuant to the terms of the Stipulated Protective Order (Dkt. 49 ¶ 10) and your Honor’s Individual Practices in Civil Cases ¶ I.F.2., we respectfully seek leave to file under seal (1) Defendant’s Reply in Further Support of Its Motion to Exclude the Expert Testimony of Daniel F. Spulber (“Reply Brief”) and (2) the accompanying Declaration of Alexander Harris and exhibits thereto (“Harris Declaration”).

Cengage’s Reply Brief and the Harris Declaration reference or include documents and deposition testimony that the parties have designated as “Confidential” or “Attorney’s Eyes Only.” Cengage will file unredacted versions via ECF using the “Selected Parties” viewing level.

2d 630, 649–50 (S.D.N.Y. 2011) (granting motion to seal “highly proprietary material concerning … marketing strategies, product development, costs and budgeting”); Standard Inv. Chartered, Inc. v. Fin.

Cengage makes significant efforts to protect the confidentiality of the information reflected in the Reply Brief and Harris Declaration in order to prevent competing publishers from obtaining details to which they are not entitled and that would reveal the inner workings of its business.

1022, 1035 (S.D.N.Y. 1993) (granting motion to Beijing  Brussels  Century City  Dallas  Denver  Dubai  Frankfurt  Hong Kong  Houston  London  Los Angeles  Munich New York  Orange County  Palo Alto  Paris  San Francisco  São Paulo  Singapore  Washington, D.C. March 14, 2023 Page 2 seal documents based upon the “assertion that its competitors who do not now have this information could use it to do [the party] competitive injury”).

SARAH L. CAVE, United States Magistrate Judge.

Pursuant to the telephonic conference held on March 6, 2023 (the “Conference”), and in further resolution of Plaintiffs’ putative motion to strike declarations Defendant Cengage Learning, Inc. (“Cengage”) submitted from eleven (11) witnesses (the “Declarants”) in opposition to Plaintiffs’ motion for class certification (see ECF Nos. 193 (the “Motion”); 213), the Court orders as follows: 1.

By Monday, March 13, 2023, the parties shall file their proposed stipulation outlining resolution of the Motion, including (i) Plaintiffs’ right to conduct depositions of the Declarants; (ii) Cengage’s agreement to pay the court reporting costs for the depositions of Declarants Simones, Cole, and either one author Declarant or a third product manager Declarant; (iii) the proposed schedule for the parties’ supplemental briefs regarding class certification, which shall not exceed three pages single-spaced; and (iv) their preference for scheduling Oral Argument on either Tuesday, May 9, 2023 at 2:30 p.m. or Thursday, May 11, 2023 at 10:00 a.m. 2.

The parties shall order a transcript of the Conference and file it on the docket.

United States Magistrate Judge

SARAH L. CAVE, United States Magistrate Judge.

Pursuant to the telephonic conference held today, March 3, 2023 (the “Conference”), the Court orders as follows: 1.

A telephonic conference will be held on Monday, March 6, 2023 at 5:00 p.m. on the court's conference line.

The parties shall order a transcript of the Conference and file it on the docket.

United States Magistrate Judge

Sarah L. Cave Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Dear Judge Cave: We write on behalf of Plaintiffs Douglas Bernstein, Edward Roy, Louis Penner, and Ross Parke, as personal representative of the Estate of Alison Clarke-Stewart (“Plaintiffs”).

Pursuant to the terms of the Stipulated Protective Order (Dkt. 49, ¶ 10) and your Honor’s Individual Practice I.G.2., we respectfully seek leave to file under seal: 1) Plaintiffs’ Opposition to Defendant’s Motion to Exclude the Expert Testimony of Daniel F. Spulber and exhibits thereto, and 2) Exhibit 8 accompanying Plaintiffs’ reply letter motion seeking to strike class certification declarations.

Plaintiffs’ Opposition and the exhibits reference or contain information that the Court has previously sealed (see Dkt. Nos. 176, 187, 199, & 200) and/or that Cengage has designated as “Confidential” or “Attorney’s Eyes Only.” Plaintiffs will file unredacted versions via ECF using the “Selected Parties” viewing level.

Respectfully submitted, Alexander W. Aiken Cc: All counsel or record Plaintiffs' letter-motion seeking to file under seal (i) Plaintiffs' Opposition to Defendant's Motion to Exclude the Expert Testimony of Daniel F. Spulber, (ii) accompanying exhibits 1–3 under seal, and (iii) exhibit 8 of Plaintiffs' reply letter-motion (ECF No. 205) is GRANTED, and the documents at ECF Nos. 206-4, 208, 209, and 209-1 – 209-3 shall remain visible only to the selected parties.

The Clerk of Court is respectfully directed to (i) designate the documents at ECF Nos. 206 – 206-3 as viewable to the public, and (ii) close ECF No. 205.

Sarah L. Cave Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Your Honor: We write on behalf of Defendant Cengage Learning, Inc. Pursuant to the terms of the Stipulated Protective Order (Dkt. 49 ¶ 10) and your Honor’s Individual Practices in Civil Cases ¶ I.F.2., we respectfully seek leave to file under seal (1) Defendant’s Memorandum of Law in Support of Its Motion to Exclude the Expert Testimony of Daniel F. Spulber (“Motion to Exclude”) and (2) the accompanying Appendix of Evidence.

Cengage’s Motion to Exclude and the accompanying Appendix of Evidence reference or include documents and deposition testimony that the parties have designated as “Confidential” or “Attorney’s Eyes Only.” Cengage will file unredacted versions via ECF using the “Selected Parties” viewing level.

Cengage makes significant efforts to protect the confidentiality of the information reflected in the Motion to Exclude and Appendix of Evidence in order to prevent competing publishers from obtaining details to which they are not entitled and that would reveal the inner workings of its business.

Beijing Brussels Century City Dallas Denver Dubai Frankfurt Hong Kong Houston London Los Angeles Munich New York Orange County Palo Alto Paris San Francisco São Paulo Singapore Washington, D.C.

Defendant's letter-motion seeking to file under seal (i) Defendant’s Memorandum of Law in Support of its Motion to Exclude the Expert Testimony of Daniel F. Spulber and (2) its accompanying exhibits, is GRANTED, and the documents at ECF Nos. 190 and 190-1 shall remain visible only to the selected parties.

Sarah L. Cave Daniel Patrick Moynihan United States Courthouse 500 Pearl St., New York, NY 10007-1312 Susman Godfrey l.l.p. a r e gi st ered l i mited l i a bil it y p a rtnersh ip

www.susmangodfrey.com Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Dear Magistrate Judge Cave: Pursuant to Local Civil Rule 37.2 and the Court’s Individual Practice II.C.2, Plaintiffs respectfully request a pre-motion conference to discuss their anticipated motion to strike class certification declarations Defendant Cengage submitted to support its defenses from individuals it failed to disclose until either a mere two weeks before the close of fact discovery (for 7 witnesses) or two months after (for 4 witnesses).

On September 20, 2022, Cengage disclosed seven authors—Michael Campbell, Andrew DuBrin, OC Ferrell, Christine Harrington, Robert Hughes, William Pride, and Larry Siegel—a mere two weeks before the October 3 discovery deadline.

“It strains credulity to suggest” Cengage did not think “it may be important to try to demonstrate that the individual issues … predominate over the common issues” until the end of class discovery or “while reading Plaintiff[s’] motion.” Roberts, 2010 WL 3546499, at *8; Advance Tr. & Life Escrow Servs., 592 F. Supp.

Cengage’s only attempt to try to cure the substantial prejudice its violations of Rule 26 caused was to float the possibility, on a January 19, 2023 meet and confer, of seeking Court approval of a continuance and a limited reopening of discovery.

Sarah L. Cave Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Bernstein v. Cengage Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC Dear Magistrate Judge Cave: We write on behalf of Plaintiffs Douglas Bernstein, Edward Roy, Louis Penner, and Ross Parke, as personal representative of the Estate of Alison Clarke-Stewart (“Plaintiffs”).

Pursuant to the terms of the Stipulated Protective Order (Dkt. 49, ¶ 10) and your Honor’s Individual Practice I.G.2., we respectfully seek leave to file 1) Plaintiffs’ Reply Memorandum of Law in Further Support of Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel and 2) accompanying Exhibits 77, 78, 80, 89, and 90 under seal.

Plaintiffs’ Memorandum of Law and the foregoing exhibits reference or contain information that the Court has previously sealed (see Dkt. Nos. 176 & 187) and/or that Cengage has designated as “Confidential” or “Attorney’s Eyes Only.” Plaintiffs will file unredacted versions via ECF using the “Selected Parties” viewing level.

Respectfully submitted, Alexander W. Aiken Cc: All counsel or record Plaintiffs' letter-motion seeking to file under seal (i) Plaintiffs' Reply Memorandum of Law in Further Support of Plaintiffs' Motion for Class Certification and Appointment of Class Counsel and (ii) accompanying exhibits 77, 78, 80, 89, and 90 (ECF No. 194) is GRANTED, and the documents at ECF Nos. 195 and 196-1, 196-2, 196-4, and 196-14 shall remain visible only to the selected parties.

The Clerk of Court is respectfully directed to close ECF No. 194.