The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
In re: Lamictal Direct Purchaser Antitrust
Litigation
Civil Action No. 12-995
OPINION & ORDER
John Michael Vazquez, U.S.D.J.
Pending before the Court is Plaintiffs’ unopposed motion, D.E. 510, to redact certain
portions of pages 16, 18-19, and 22-25 of the Court’s April 9, 2021 Opinion, D.E. 502. The Court
filed the Opinion under seal because the Opinion appeared to contain otherwise sensitive and
confidential information. See D.E. 503. The Court ordered the parties to file a joint motion to seal
within 14 days of the entry of the Opinion. Id. Plaintiffs then filed their motion, D.E. 510, with
proposed redactions attached Exhibits A and B, D.E. 511; D.E. 511-1. Plaintiffs seek to seal the
portions of the Court’s opinion discussing the prices that direct purchasers of the generic version
of the drug Lamictal paid to Defendants Teva Pharmaceutical Industries LTD and its subsidiary
Teva Pharmaceuticals USA, Inc. (collectively “Teva”) as well as discounts those purchasers
received. D.E. 510-1 at 2, ¶ 4; see also D.E. 502 at 16, 18-19, and 22-25. The Court decided the
motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the
reasons stated below, Plaintiffs’ motion is granted.
“[W]hen a moving party seeks an order sealing court records, it must demonstrate that
‘good cause’ exists to overcome the presumption in favor of public access.” China Falcon Flying
Ltd. v. Dassault Falcon Jet Corp., No. CV 15-6210 (KM), 2017 WL 3718108, at *2 (D.N.J. Aug.
29, 2017) (citing Securimetrics, Inc. v. Iridian Techs., Inc., No. CIV. 03-04394 (RBK), 2006 WL
827889, at *2 (D.N.J. Mar. 30, 2006)). A “motion to seal is granted when the moving party’s
private interest to seal documents outweighs the public’s interest in disclosing the information.”
Id. (citing CDK Glob., LLC v. Tulley Auto. Grp., Inc., No. CV 15-3103 (KM), 2017 WL 870400,
at *2 (D.N.J. Mar. 3, 2017)). Local Civil Rule 5.3(c)(3) sets forth the requirements for the contents
of a motion to seal. L. Civ. R. 5.3(c)(3). Moving papers must address with particularity the
following factors:
(a) the nature of the materials or proceedings at
issue;
(b) the legitimate private or public interest which
warrants the relief sought;
(c) the clearly defined and serious injury that
would result if the relief sought is not granted;
(d) why a less restrictive alternative to the relief
sought is not available;
(e) any prior order sealing the same materials in
the pending action; and
(f) the identity of any party or nonparty known to
be objecting to the sealing request.
Such index shall also include, as to each objection
to seal any material:
(g) the materials to which there is an objection;
(h) the basis for the objection; and
(i) if the material or information was previously
sealed by the Court in the pending action, why the
materials should not be maintained under seal.
Id.
To satisfy the first factor, Plaintiffs must provide a detailed description of the material they
wish to seal. China Falcon Flying Ltd., No. CV 15-6210 (KM), 2017 WL 3718108, at *2 (citing
Horizon Pharma AG v. Watson Lab’ys Inc.-Fla., No. CV 13-5124 (JEI/JS), 2015 WL 12859244,
at *1 (D.N.J. Sept. 14, 2015)). Plaintiffs indicate they wish to seal “competitively-sensitive
information about the prices Plaintiffs’ and Class members paid for generic Lamictal, including
any discounts they received and the pricing and discount patterns relative to other Direct
Purchasers.” D.E. 510-1 at 3. Exhibit A is a copy of the Court’s Opinion, highlighted to show
exactly what information Plaintiffs’ seek to redact. Plaintiffs have provided a detailed description
of the material they seek to seal.
The next two factors are analyzed together: “the legitimate private or public interest which
warrants the relief sought” and “the clearly defined and serious injury that would result if the relief
sought is not granted.” L. Civ. R. 5.3(c)(3); see also China Falcon Flying Ltd., 2017 WL 3718108,
at *3. Plaintiffs claim they have an interest in “ensuring that their sensitive, non-public information
about their Lamictal purchases and downstream prices remains confidential.” D.E. 510-1 at 3. As
to injury, Plaintiffs point to the previous declarations of Kristyn Fields, D.E. 426-3, and Susan
Segura, D.E. 426-4, which attached as exhibits declarations of certain Plaintiffs’ employees. The
employees stated that disclosure of their “selling prices and practices[,]” which are not available
under normal circumstances, “could increase the negotiating leverage of . . . customers and
negatively impact [Plaintiff’s] business.” D.E. 426-4 at 6; see also D.E. 426-3 at 6. Those
employees also testified that Plaintiffs’ suppliers could use the confidential pricing information
“to gain a competitive advantage in future business negotiations.” D.E. 426-4 at 6; see also D.E.
426-3 at 6. Courts in this district have found that similar interests and injuries readily satisfy L.
Civ. R. 5.3(c)(3)(c) and L. Civ. R. 5.3(c)(3)(d). See e.g., China Falcon Flying Ltd., No. CV 15-
6210 (KM), 2017 WL 3718108, at *3 (“[T]here is a legitimate private interest in keeping
confidential business agreements and sensitive pricing information confidential . . . a moving
party’s loss of competitive standing in the current market is the type of serious injury that calls for
the protection of confidential material.”). Plaintiffs satisfy both of the factors.
The next factor is “why a less restrictive alternative to the relief sought is not available.”
L. Civ. R. 5.3(c)(3). The Court finds that there are no less restrictive means. Exhibit A to
Plaintiffs’ motion shows that Plaintiffs only seek to redact those limited aspects of the Opinion,
D.E. 502, that identify discounting strategies and patterns for customer groups, specific prices paid
for generic Lamictal, and the identities of the customers that fall into specific customer groups.
See D.E. 511-1.
The next factor requires Plaintiffs to identify all prior orders sealing the same materials in
this case. See L. Civ. R. 5.3(c)(3)(e). Plaintiffs’ motion indicated that the information for which
they now seek sealing were part of the materials ordered sealed by both the Third Circuit on April
12, 2020, D.E. 510-1 at 2, ¶ 6, and by Judge Waldor on November 16, 2018 and September 21,
2020. Id. at 2-3, ¶¶ 7-9. Plaintiffs have met their burden.
Finally, because there are no objections to Plaintiffs’ motion to seal, D.E. 510-1 at 1, ¶ 3,
factors (f) through (i) do not apply.
Accordingly, the Court finds that Plaintiffs have met all factors under L. Civ. R. 5.3(c)(3)
and have shown good cause as to why the requested portions of the Court’s Opinion should be
redacted.
Therefore, for good cause shown,
IT IS on this 29th day of April 2021,
ORDERED that Plaintiffs’ unopposed motion, D.E. 510, to redact certain portions of
pages 16, 18-19, and 22-25 of the Court’s April 9, 2021 Opinion, D.E. 502, is GRANTED; and it
is further
ORDERED that within seven (7) days, Plaintiffs shall submit a copy of the Court’s
Opinion with the approved redactions (without any header generated by the Court’s electronic
filing system) to the following email address: njdnef_vazquez@njd.uscourts. gov.
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John Michael Vazquez, U.S.DJ.