Regeneron Pharmaceuticals Inc. v. Novartis Pharma AG

Weil, Gotshal & Manges LLP

767 Fifth Avenue

USDC eT □

ELECTRONICALLY FILED #1212 S10 8007 Tax

DOC Fe Eric S. Hochstadt

DATE FILED: +1 (212) 310-8538

January 20, 2021 eric.hochstadt @ weil.com

The Honorable Alison J. Nathan

United States District Judge

United States District Court for the Southern District of New York

Thurgood Marshall United States Courthouse

40 Foley Square

New York, NY 10007

Re: Regeneron Pharmaceuticals, Inc. vy. Novartis Pharma AG et al., No. 1:20-cv-05502

Unopposed Request to Seal/Redact First Amended Complaint

Dear Judge Nathan:

I write on behalf of Plaintiff Regeneron Pharmaceuticals, Inc. (“Regeneron”) to respectfully request that

the Court issue an order permitting the filing under seal of the unredacted version of Regeneron’s First

Amended Complaint (the “First Amended Complaint’). Pursuant to Rule 4.B. of your Honor’s Individual

Rules and Practices (“Individual Rules”), Regeneron has conferred with counsel for Novartis Pharma AG,

Novartis Technology LLC, and Novartis Pharmaceuticals Corporation (collectively, “Novartis”) and

Vetter Pharma International GmbH (‘Vetter’) regarding the requested redactions in an effort to narrow

the scope of the request, and Defendants do not oppose the following request. Regeneron submits this

letter motion to request that: (1) an unredacted copy of the First Amended Complaint be filed under seal;

and (2) the redactions in the public version of the First Amended Complaint be maintained. See Individual

Rules, Rule 4.B.

Sealing is Appropriate in this Action

A district court “has supervisory power over its own records and files,” and public access to these records

and files “has been denied where court files might have become a vehicle for improper purposes.” Nixon

v. Warner Commce’ns, Inc., 435 U.S. 589, 598 (1978). While “[t]here is a common law presumption in

favor of permitting public access to judicial documents,” a “court balances this common law presumption

of access against competing comparisons, including the privacy interests of those resisting disclosure.”

GoSMiLE, Inc. v. Dr. Jonathan Levine, D.M.D, P.C., 769 F. Supp. 2d 630, 649 (S.D.N.Y. 2011) (citing

Lugosch vy. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006)). Competitively sensitive

information, for example, should be protected against public disclosure if such disclosure would cause

significant and irreparable competitive injury. See, e.g., Standard Inv. Chartered, Inc. v. Fin. Indus. Reg.

Auth,, 347 F. App’x 615, 617 (2d Cir. 2009) (finding that presumption of public access was overcome

when disclosure would subject a party to financial harm and cause significant competitive disadvantage).

Hon. Alison J. Nathan Weil, Gotshal & Manges LLP

January 20, 2021

Page 2

Accordingly, courts in this District routinely seal documents to prevent the disclosure of a party’s

confidential or competitively sensitive business information. See, e.g. PDV Sweeny, Inc. y.

ConocoPhillips Co., No. 14-5183 (AJN), 2014 WL 4979316, at *3 (S.D.N.Y. Oct. 6, 2014) (granting

motion to seal “with respect to those documents...containing sensitive commercial information affecting

the parties’ ongoing relationship”); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d

485,511 (S.D.N.Y. 2015) (granting motion to redact documents containing advertising expenditures and

plans, merchandising strategies, policies, and sales); Playtex Prods., LLC v. Munchkin, Inc., No. 14- 1308,

2016 WL 1276450, at *11 (S.D.N.Y. Mar. 29, 2016) (granting request to seal documents concerning

“Playtex’s (1) sales and revenue, (ii) analytical testing of the Diaper Genie Refills, (iii) qualitative market

research, and (iv) research and development for new products’).

Here, after conferring with Defendants, Regeneron seeks to seal only limited portions of the First

Amended Complaint that contain confidential business information from and relating to agreements

entered into between Regeneron and Defendant Vetter, on the one hand, and Defendants Novartis and

Vetter, on the other hand. This information has been produced in this case and designated as “Outside

Counsel’s Eyes Only” pursuant to the Protective Order. See ECF No. 76. The redactions of the First

Amended Complaint are narrowly tailored to protect commercially sensitive and confidential information,

including the non-public, bargained-for terms of patent licensing agreements, commercial development

agreements, and subsequent amendments entered into between Regeneron and Vetter, on the one hand,

and Novartis and Vetter, on the other hand. Importantly, disclosure of these confidential business contracts

would likely result in competitive harm to Regeneron, Vetter, and Novartis in future negotiations of

similar agreements with other parties. For example, disclosure of the economic terms of the parties’

various licensing and/or commercial agreements could disadvantage them in future negotiations with third

parties with respect to similar agreements. See, e.g., Gracyzk v. Verizon Commc’ns, Inc., No. 18-6465,

2020 WL 1435031, at *8-9 (S.D.N.Y. Mar. 24, 2020) (granting party’s request to seal portions of contracts

that contained “sensitive financial information” that would cause them to suffer “competitive disadvantage

in future negotiations”).

To protect parties from harm of this nature, courts in this Circuit have generally exercised their discretion

to seal judicial records. See, e.g., KeyBank Nat’l Ass’n v. Element Transp. LLC, No. 16-8958, 2017 WL

384875, at *3 (S.D.N.Y. Jan. 26, 2017) (“KeyBank asserts that the sensitive nonparty financial

information it seeks to protect is all the data a competitor would need to determine its valuation of the

leases. This competitive injury is sufficiently serious to warrant protection.”). In contrast, there is no

benefit to the public from disclosure of the confidential information sought to be sealed here. Thus, the

competitive disadvantages that would flow to Regeneron, Vetter and Novartis if such information was

disclosed outweighs the interest of the public, including competitors, of viewing those specific terms. See

Lugosch, 435 F.3d at 120.

Hon. Alison J. Nathan Weil, Gotshal & Manges LLP

January 20, 2021

Page 3

Conclusion

For the reasons stated above, Regeneron respectfully requests, and Defendants do not oppose, that this

Court enter an order: (1) sealing the unredacted version of Regeneron’s First Amended Complaint; and

(2) maintaining the redactions of the publicly filed version of Regeneron’s First Amended Complaint.

Respectfully submitted,

/s/_Eric §. Hochstadt

Eric S. Hochstadt

Counsel for Plaintiff Regeneron

Pharmaceuticals, Inc.

Plaintiff's motion to file the unredacted version of its First

Amended Complaint under seal and to maintain the redactions on

the publicly filed version of the First Amended Complaint is

hereby GRANTED.

The Court grants Plaintiff's motion after applying the three-part

test articulated by the Second Circuit in Lugosch v. Pyramid Co. of

Onondaga, 435 F.3d 110 (2d Cir. 2006). Under this test, the Court

must: (i) determine whether the documents in question are

“Judicial documents;” (ii) assess the weight of the common law

presumption of access to the materials; and (iii) balance competing

considerations against the presumption of access. Id. at 119-20.

"[T]he mere existence of a confidentiality order says nothing about

whether complete reliance on the order to avoid disclosure [is]

reasonable.” /d. at 125-26.

Nonetheless, having reviewed the proposed redactions, the Court

finds that the requests are narrowly tailored to protect competitive

business information, including the non-public terms of patent

licensing agreements, commercial development agreements, and

the subsequent amendments. As a result, the Court concludes that

the sensitivity of this information outweighs the presumption of

access contemplated in the third Lugosch factor.

) (| lates]

SO ORDERED. : kk AitHA 1/25/2021