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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-2989-MDL-ALTONAGA/Torres
In re:
JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
_________________________________/
This Document Relates to the Non-Federal Securities Actions
ORDER
THIS CAUSE came before the Court upon Plaintiffs’ Unopposed Motion for Leave to File
Under Seal [ECF No. 357], filed on July 26, 2021. Pursuant to Local Rule 5.4(b) and Section 12.3
of the parties’ Stipulated Protective Order [ECF No. 329], Plaintiffs in the non-federal securities
actions request leave to file under seal the unredacted versions of the Master Complaints [ECF
Nos. 358, 359], with exhibits that have been produced by Defendants and designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTAL – ATTORNEYS’ EYES ONLY.” The
content Plaintiffs seek to file under seal consists of “[i]nternal messages between employees and/or
different defendants or non-parties regarding their understanding of the circumstances leading to
the restrictions at issue in this case and their responses thereto.” (Mot. 2 (alteration added)).
Despite Defendants’ confidentiality designations, Plaintiffs do not concede the cited documents
contain confidential information requiring that the information be filed under seal, but advise they
are nonetheless filing the instant Motion in compliance with the parties’ Stipulated Protective
Order. (See id. 2–3).
Courts “have discretion to determine which portions of the record should be placed under
seal, but [such] discretion is guided by the presumption of public access to judicial documents.”
Perez-Guerrero v. U.S. Attorney Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (alteration added).
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Public or judicial records are presumptively public, while documents which are not considered
public or judicial records, such as discovery documents, are not. See F.T.C. v. AbbVie Prods. LLC,
713 F.3d 54, 62 (11th Cir. 2013). It is well settled that complaints and attached exhibits are judicial
records to which the presumption of public access applies. See id. at 62–64. “Judges deliberate
in private but issue public decisions after public arguments based on public records . . . . Any step
that withdraws an element of the judicial process from public view makes the ensuing decision
look more like fiat and requires rigorous justification.” Perez-Guerrero, 717 F.3d at 1235
(alteration in original) (quoting Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006),
abrogation on other grounds recognized by RTP LLC v. ORIX Real Estate Capital, Inc., 827 F.3d
689 (7th Cir. 2016)). Moreover, the fact the parties have agreed to seal a document is irrelevant.
See Brown v. Advantage Eng’g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) (stating it is
“immaterial” whether the parties have agreed to seal the record when determining whether a
document should be publicly filed).
Upon review of the Motion, the Court is left unconvinced the presumption in favor of
public access should be cast aside. While Plaintiffs state the Stipulated Protective Order requires
them to file the Master Complaints under seal (see Mot. 2–3), the parties fail to explain why it is
necessary to deprive the public of access to allegations that form the foundation of the several
cases in this MDL. See Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011) (stating “the parties
cannot overcome the presumption against sealing judicial records simply by pointing out that the
records are subject to a protective order in the district court[;]” but instead “must articulate a real
and substantial interest that justifies depriving the public of access to the records that inform [the
Court’s] decision-making process.” (alterations added)). Although portions of the Master
Complaints may contain the type of confidential information that should be shielded from public
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disclosure, there is no apparent reason to seal the Master Complaints other than the parties’
agreement, which is insufficient. Redaction of those portions which contain confidential
information, as Plaintiffs have already done, is more appropriate. If redaction will impair
Plaintiffs’ ability to defend a forthcoming motion to dismiss, Plaintiffs should include the
“confidential” information in the pleadings filed on the public docket.
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiffs’ Unopposed Motion for Leave to File
Under Seal [ECF No. 357] is DENIED. This Order does not otherwise modify the Stipulated
Protective Order [ECF No. 329].
DONE AND ORDERED in Miami, Florida, this 27th day of July, 2021.
____________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc:
counsel of record;
Pro Se Plaintiffs
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