Court filing
Administrative Motion to File Under Seal Confidential Information… — Brooks v. Thomson Reuters Corporation (Dkt. 174)
No. 3:21-cv-01418-EMC · Doc. 174 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 174 Filed 03/16/23 Page 1 of 5
1 Susan D. Fahringer, Bar No. 21567 Gabriella Gallego, Bar No. 324226
SFahringer@perkinscoie.com GGallego@perkinscoie.com
2 Nicola C. Menaldo, pro hac vice PERKINS COIE LLP
3 NMenaldo@perkinscoie.com 3150 Porter Drive
Erin K. Earl, pro hac vice Palo Alto, CA 94304-1212
4 EEarl@perkinscoie.com Telephone: 650.838.4300
Anna M. Thompson, pro hac vice Facsimile: 650.838.4350
5 AnnaThompson@perkinscoie.com
PERKINS COIE LLP Hayden M. Schottlaender, pro hac vice
6 1201 Third Avenue, Suite 4900 HSchottlaender@perkinscoie.com
7 Seattle, WA 98101-3099 PERKINS COIE LLP
Telephone: 206.359.8000 500 N. Akard Street, Suite 3300
8 Facsimile: 206.359.9000 Dallas, TX 75201-3347
Telephone: 214.965.7700
9 Attorneys for Defendant Facsimile: 214.965.7799
Thomson Reuters Corporation
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11 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
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14 CAT BROOKS and RASHEED Case No. 3:21-cv-01418-EMC
SHABAZZ, individually and on behalf of
15 ADMINISTRATIVE MOTION TO FILE
all others similarly situated,
16 UNDER SEAL CONFIDENTIAL
Plaintiffs, INFORMATION REGARDING
17 THOMSON REUTERS’ OBJECTION TO
v. NEW REPLY EVIDENCE
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THOMSON REUTERS CORPORATION, Judge: Hon. Edward M. Chen
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Defendant.
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Case No. 3:21-cv-01418-EMC ADMINISTRATIVE MOTION TO FILE UNDER
SEAL INFORMATION RE OBJECTION TO
NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 174 Filed 03/16/23 Page 2 of 5
1 Pursuant to Civil Local Rules 7-11 and 79-5, Thomson Reuters submits this
2 administrative motion (“Sealing Motion”) for leave to file under seal certain information related
3 to its Objection to New Reply Evidence (“Objection”). This Sealing Motion is supported by the
4 Third Sealing Declaration of Kevin Appold, Doc. 173-2 (“Third Sealing Declaration), the
5 Stipulated Protective Order entered in this action, Doc. 70, and all pleadings and papers on file.
6 LEGAL STANDARD
7 There is a “strong presumption in favor of access” to court records, but “access to judicial
8 records is not absolute.” Kamanaka v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th
9 Cir. 2006) (quoting Foltz v. State Farm Mut. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003)). The legal
10 standard applicable to whether a document should be sealed depends on whether the document is
11 attached to a dispositive motion or a non-dispositive motion. See id. at 1179-80. Documents
12 attached to dispositive motions—like motions for summary judgment—may be sealed only when
13 the proponent establishes “compelling reasons” for doing so. Id. But documents attached to non-
14 dispositive motions that relate to the merits only tangentially—like motions for class
15 certification—may be sealed upon a lesser showing of good cause. Id. at 1180; see also In re
16 High-Tech Emp. Antitrust Litig., No. 11-cv-02509, 2013 WL 163779, at *2 n.1 (N.D. Cal. Jan.
17 15, 2013) (noting that the “vast majority” of the courts within this district generally treat class
18 certification motions as non-dispositive); see also Ehret v. Uber Techs., Inc., No. 14-cv-00113,
19 2015 WL 12977024, at *1 (N.D. Cal. Dec. 2, 2015) (Chen, J.) (applying good cause standard to
20 documents attached to class certification motion).
21 The lesser, good cause standard applies here because the relevant materials are associated
22 with Plaintiffs’ reply brief in support of their motion for class certification (via Thomson Reuters’
23 Objection). But even if the higher, compelling reasons, standard applied, that standard is also met
24 for the same reasons discussed below and in the Third Sealing Declaration.1
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One possible exception to the majority approach of applying the lesser, good cause standard to
26 materials attached to a class certification motion is when “a denial of class status means that the
stakes are too low for the named plaintiffs to continue the matter.” In re High-Tech Emp.
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Antitrust Litig., 2013 WL 163779, at *2 n.1 (noting exception but applying good cause standard);
28 see also Circle Click Media LLC v. Regus Mgmt. Grp. LLC, No. 12-cv-04000, 2016 WL
Case No. 3:21-cv-01418-EMC -1- ADMINISTRATIVE MOTION TO FILE UNDER
SEAL INFORMATION RE OBJECTION TO
NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 174 Filed 03/16/23 Page 3 of 5
1 ARGUMENT
2 Good cause and compelling reasons exist to seal the text from Thomson Reuters’
3 Objection identified in Table 1 because the text “reveals the type of data that Plaintiffs falsely
4 claim to have been available through CLEAR; reveals non-public information about strategic
5 development and positioning of CLEAR as Thomson Reuters considered whether to make that
6 type of data available through CLEAR; and because it gives an incomplete and misleading picture
7 of Thomson Reuters business practices related to CLEAR.” Third Sealing Decl. ¶ 4; see also
8 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (recognizing that it is proper to seal
9 business information that might harm a litigant’s competitive standing”); Adtrader, Inc., 2020
10 WL 6389186, at *2 (sealing portions of documents that present “information without context
11 [because it could] harm Google by providing an incomplete and misleading picture of its
12 crediting practices and capabilities”); Aleksandr Urakhchin v. Allianz Asset Mgmt. of Am., No.
13 15-cv-1614, 2017 WL 11643350, at *4 (C.D. Cal. Apr. 21, 2017) (sealing portions of emails that
14 competitors could present “to the marketplace out-of-context and place the investment option in a
15 negative light”).
16 Table 1
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Cite Portion(s) to Seal
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Objection to Reply Page 1, line 6 (after “includes allegations about CLEAR having” and
19 (1:6) before cite to footnote 3)
20 Objection to Reply Page 1, line 9 (after “TR objects to Plaintiffs’ new argument and
21 (1:9) evidence about” and before “under Local”)
22 Objection to Reply Page 1, line 11 (after “further objects that” and before “is irrelevant
(1:11) to Plaintiffs’ case or to class certification and is”)
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Objection to Reply Page 1, line 14 (beginning of line and before “or anything of the
24 (1:14) sort.”)
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26 8253802, at *1 (N.D. Cal. Mar. 14, 2016) (Chen, J.) (applying “compelling reasons” standard
where “individual claims [were] expected to be less than $3,000 each”). But that exception does
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not apply here because Plaintiffs seek injunctive relief (even if class certification is denied) and
28 do not merely seek nominal damages. See, e.g., Am. Compl. ¶¶ 82, 92, 130.
Case No. 3:21-cv-01418-EMC -2- ADMINISTRATIVE MOTION TO FILE UNDER
SEAL INFORMATION RE OBJECTION TO
NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 174 Filed 03/16/23 Page 4 of 5
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Cite Portion(s) to Seal
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Objection to Reply Page 1, line 18 (after “had “no knowledge one way or the other”
3 (1:18) whether” and before “was ever indexed in CLEAR.”)
4 Objection to Reply Page 1, line 19 (after “And, in fact,” and before “was never made
(1:19) available to any CLEAR”)
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Objection to Reply Page 2, line 7 (after “for at least a limited time, CLEAR had” and
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(2:7) before “–which includes potentially”)
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Objection to Reply Page 2, line 7 (after “–which includes potentially” to end of line 7)
8 (2:7)
9 Objection to Reply Page 2, line 8 (after “and” and before “information that cannot be
(2:8) accessed through normal internet channels.”)
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Objection to Reply Page 2, line 11 (after “The phrase” and before “does not appear once
11 (2:11) in either Plaintiffs’ Complaint or their”)
12 Objection to Reply Page 2, lines 23-24 (FN 5: after “TR never discusses” and before “in
(2:23-24) its opposition because”)
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Objection to Reply Page 2, line 24 (FN 5: after “in its opposition because” and before
14 (2:24) “was never offered through CLEAR and has never”)
15 Objection to Reply Page 2, lines 24.5-25 (after “Nor can Plaintiffs claim that the concept
(2:24.5 - 25) of” and before “is new to them and that they could not have
16 discovered the issue sooner.”)
17 Objection to Reply Page 2, line 25.5 (after “to TR’s consideration of” and before
18 (2:25.5) “functionality (including those that were presented to Mr.”)
19 Objection to Reply Page 3, line 3 (after “references to and arguments about” and before
(3:3) “under Local Rule 7-3(d)(1).”)
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Objection to Reply Page 3, line 7 (after “Because anything regarding” and before “is
21 (3:7) new”)
22 Objection to Reply Page 3, line 9 (after “TR also objects that the new evidence
(3:9) regarding” and before “is irrelevant.”)
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Objection to Reply Page 3, line 19 (beginning of line and before “has no connection to
24 (3:19) this litigation.”)
25 Objection to Reply Page 3, line 21 (after “what types of” and before “may be at issue,
(3:21) what”)
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Objection to Reply Page 3, line 21 (after “may be at issue, what” and before “even is,
27 (3:21) why TR explored”)
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Case No. 3:21-cv-01418-EMC -3- ADMINISTRATIVE MOTION TO FILE UNDER
SEAL INFORMATION RE OBJECTION TO
NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 174 Filed 03/16/23 Page 5 of 5
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Cite Portion(s) to Seal
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Objection to Reply Page 4, line 6 (after “customers” and before “See, e.g., Doc. 169-4,
3 (4:6) 258:4-13.”)
4 Objection to Reply Page 4, line 7 (after “CLEAR does not include” and before
(4:7) “currently, Doc 169-4, 268:17-23;”)
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Objection to Reply Page 4, line 9 (after “CLEAR, id. at 262:5-263:8; and he had “no
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(4:9) knowledge” whether” and before “was ever made”)
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Objection to Reply Page 4, line 12 (after “never made” and before “available to
8 (4:12) customers.”)
9 CONCLUSION
10 Thomson Reuters respectfully requests that the Court issue an order authorizing the
11 materials described in Table 1 above to remain under seal.
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13 Dated: March 16, 2023 PERKINS COIE LLP
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15 By: /s/ Anna Mouw Thompson
Anna Mouw Thompson
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AnnaThompson@perkinscoie.com
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Attorneys for Defendant Thomson Reuters
18 Corporation
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Case No. 3:21-cv-01418-EMC -4- ADMINISTRATIVE MOTION TO FILE UNDER
SEAL INFORMATION RE OBJECTION TO
NEW REPLY EVIDENCE
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