sealing competitively sensitive information “dating back even a decade or more”
How later courts described this case
- sealing competitively sensitive information “dating back even a decade or more”
- granting motion to seal “proprietary material concerning the defendants’ marketing strategies, product development, costs and budgeting”
Written by the judges who cited it.
The opinion
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE MANHATTAN WEST
N EW YO R K NY 1OO0O | FIRM/AFFILIATE OFFICES
BOSTON
TEL: (212) 735-3000 HOUSTON
FAX: (212) 735-2000 □□□□
www.skadden.com WASHINGTON, D.C.
seas □□□□□
BORIS. BERSHTEYN@SKADDEN.COM Application GRANTED. Defendants’ sealing application is FRANKFURT
granted for substantially the reasons stated in Defendants’ □□□□□□
April 7, 2022 letter. The materials at Dkt. Nos. 1097 to 1098, 1100 to 1101, □□□
, 1112 to 1120, 1123 to 1128, and 1162 shall remain under seal □□□□ □□□□
with access limited to the parties listed in "Appendix B" of SHANGHAI
this Order. The Clerk of Court is respectfully directed to close □□
the motion at Dkt. No. 1161. TORONTO
VIA ECF Dated: June 3, 2022
New York, New York
Hon. Lorna G. Schofield
United States District Court Judge LORNA G. S CHOFIEL
Thurgood Marshall U.S. Courthouse UNITED STATES DISTRICT JUDGE
40 Foley Square
New York, NY 10007
RE: US Airways, Inc. v. Sabre Holdings Corp., et al.,
No. 1:11-cv-02725, Sabre’s Unopposed Motion to
Maintain Certain in Limine
and Daubert Materials Under Seal
Dear Judge Schofield:
Pursuant to Rule I.D.3 of Your Honor’s Individual Rules and Procedures for
Civil Cases, Your Honor’s February 17, 2022 Order permitting the parties to
provisionally file Daubert and in limine materials under seal (ECF No. 1083),
Defendants Sabre Holdings Corporation, Sabre GLBL Inc., and Sabre Travel
International Ltd. (collectively, “Sabre’’) respectfully move to maintain certain
Daubert and in limine materials under seal. Plaintiff US Airways, Inc. (““USAir’)
does not oppose this motion.
Sabre seeks to maintain under seal only targeted portions of the Daubert and
in limine records that contain competitively sensitive information falling into one or
more of the three categories described below. Notably, these categories of
competitively sensitive information are nearly identical to the categories of
information that the Court permitted to be sealed in connection with earlier summary
judgment and Daubert motion practice that occurred in 2014-2015. (See ECF No.
April 7, 2022
Page 2
250.) The three categories of information that Sabre seeks to maintain under seal
concern: (i) Sabre’s non-public pricing information, including airline booking fees
or travel agency incentives, and information from which that non-public pricing
information could be derived; (ii) Sabre’s contract terms and related strategic
negotiating positions or evaluations; and (iii) other competitively sensitive material,
such as information on Sabre’s costs, revenue, and technology spending.
Although a general presumption exists in favor of public access to judicial
documents, courts seal materials where, as here, proposed redactions are “narrowly
tailored” and “essential to preserve higher values.” Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (citation omitted). As this Court has
recognized, such “higher values” include the need “to prevent the unauthorized
dissemination of confidential business information.” Allianz Glob. Invs. GmbH v.
Bank of Am. Corp., 2021 WL 2011914, at *1 (S.D.N.Y. May 20, 2021) (Schofield,
J.); see also Blackboard Inc. v. Int’l Bus. Machs. Corp., 2021 WL 4776287, at *2
(S.D.N.Y. Oct. 12, 2021) (Schofield, J.) (similar). Moreover, courts have sealed
“[c]onfidential business information dating back even a decade or more,” because
such information “may provide valuable insights into a company’s current business
practices that a competitor would seek to exploit.” Encyclopedia Brown Prods., Ltd.
v.Home Box Off., Inc., 26 F. Supp. 2d 606, 614 (S.D.N.Y. 1998). Finally, sealing
confidential business information is especially warranted when only “minimally
relevant to the parties’ claims,” and not critical to resolving a motion before the
court. Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., 2015 WL 4298572, at *5
(S.D.N.Y. July 15, 2015) (citing United States v. Amodeo, 71 F.3d 1044, 1050 (2d
Cir. 1995)).
Sabre’s proposed redactions meet the required threshold to seal judicial
documents. First, maintaining under seal Sabre’s non-public pricing information is
necessary to prevent harm to Sabre’s ability to negotiate future contracts, including
to avoid giving counterparties (and competitors) any unfair advantage. Such harm
would accrue even if Sabre’s counterparties (and competitors) had access to Sabre’s
pricing information that is many years old, because Sabre’s contracts with airlines
and travel agencies typically span several years, such that older pricing information
remains relevant to current negotiations. See Encyclopedia Brown, 26 F. Supp. 2d at
614 (sealing competitively sensitive information “dating back even a decade or
more”). Accordingly, the Court should maintain Sabre’s non-public pricing
information under seal. See Blackboard Inc., 2021 WL 4776287, at *2 (granting
motion to seal “confidential pricing and financial information”).
Second, the terms in Sabre’s contracts and its negotiating strategies are also
competitively sensitive, and should remain under seal. Exposing this information
would harm Sabre’s competitive positioning because its contract terms are heavily
April 7, 2022
Page 3
negotiated and confidential, and Sabre would be placed at an unfair disadvantage if
counterparties (and competitors) understood what other travel industry participants
had negotiated with Sabre, or if they received access to Sabre’s confidential
strategies. Moreover, unlike the few contractual terms that are at issue in this
litigation and would remain unredacted in the public versions of the briefing at issue,
specific contractual terms in Sabre’s other contracts and its negotiating strategies are
not relevant to the Court’s resolution of the pending motions. Accordingly, and as
courts have recognized in similar instances, sealing Sabre’s contracts and negotiating
strategies is warranted. See, e.g., Hanks v. Voya Ret. Ins. & Annuity Co., 2020 WL
5813448, at *3 (S.D.N.Y. Sept. 30, 2020) (permitting sealing of “details of
negotiated settlements” because disclosure “could result in significant commercial
harm to Movants without providing much value in the monitoring of the federal
courts”); Refco Grp., 2015 WL 4298572, at *5 n.10 (permitting sealing of
“information regarding the material terms of [a contract]”).
Third, and for the same reasons, the Court should maintain under seal
Sabre’s other competitively sensitive information, such as certain details regarding
its costs and revenues. See Blackboard, 2021 WL 4776287, at *2 (permitting sealing
of “financial information”); GoSMiLE, Inc. v. Levine, D.M.D. P.C., 769 F. Supp. 2d
630, 649-50 (S.D.N.Y. 2011) (granting motion to seal “proprietary material
concerning the defendants’ marketing strategies, product development, costs and
budgeting”).
For ease of reference, Sabre has included below as Appendix A documents
submitted in connection with the Daubert and in limine motions—listing the specific
documents that Sabre seeks to file in redacted form or entirely under seal, as well as
the reason justifying its request to do so. Pursuant to Rule I.D.3 of Your Honor’s
Individual Rules and Procedures of Civil Cases, Sabre has also filed under seal
highlighted versions of the materials cited in Appendix A that it proposes to file in
redacted or fully sealed form. As Rule I.D.3 further instructs, Appendix B contains a
list of all parties and attorneys of record who should have access to the documents
that Sabre proposes to be filed fully or partially under seal.
We thank the Court for its consideration of these requests.
Respectfully submitted,
/s/ Boris Bershteyn
Case 1:11-cv-02725-LGS Document 1210 Filed 06/03/22 Page 4 of 7
Hon. Lorna G. Schofield
April 7, 2022
Page 12
Appendix B: Counsel with Access to Sealed Documents
Andrew J. Frackman
Anton Metlitsky
Mia Noel Gonzalez
O'Melveny & Myers LLP
7 Times Square
New York, NY 10036 212-326-2000
Fax: 212-326-2061
afrackman@omm.com
ametlitsky@omm.com
mgonzalez@omm.com
Ian Thomas Simmons
Katrina Marie Robson
Sergei B Zaslavsky
O'Melveny & Meyers LLP
1625 Eye Street NW
Washington, DC 20006 (202)-383-5106
Fax: 202-383-5414
isimmons@omm.com
krobson@omm.com
szaslavsky@omm.com
Bryce Callahan
R.Paul Yetter
Yetter Coleman, LLP
811 Main Street, Suite 4100
Houston, TX 77002
Case 1:11-cv-02725-LGS Document 1210 Filed 06/03/22 Page 5 of 7
Hon. Lorna G. Schofield
April 7, 2022
Page 13
713-632-8067
Fax: 713-632-8002
bcallahan@yettercoleman.com
pyetter@yettercoleman.com
Counsel for Plaintiff US Airways, Inc.
Boris Bershteyn
Evan Kreiner
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001-8602
212-735-3834
boris.bershteyn@skadden.com
evan.kreiner@skadden.com
Julia K. York
Steven Craig Sunshine
Tara L. Reinhart
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW Washington, DC 20005
202-371-7000
julia.york@skadden.com
steve.sunshine@skadden.com
tara.reinhart@skadden.com
Patrick Joseph Fitzgerald
Skadden, Arps, Slate, Meagher & Flom, LLP
155 North Wacker Drive Suite 2700
Case 1:11-cv-02725-LGS Document 1210 Filed 06/03/22 Page 6 of 7
Hon. Lorna G. Schofield
April 7, 2022
Page 14
Chicago, IL 60606-1720
(312)-407-0508
Fax: (312)-827-9320
patrick.fitzgerald@skadden.com
Carl Lawrence Malm
Cleary Gottlieb Steen & Hamilton LLP (DC) 2000 Pennsylvania Avenue, NW Washington, DC 20006
(202)-974-1959
Fax: (202)-974-1999
Email: lmalm@cgsh.com
Ralph Hereford Duggins
Cantey Hanger, LLP
600 W. 6th, Suite 300
Fort Worth, TX 76102
(817)-877-2824
Fax: (817)-877-2807
Email: rduggins@canteyhanger.com
Evan R. Chesler
Kevin J. Orsini
Peter T Barbur
Rory Ann Leraris
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
(212)474-1000
Fax: (212) 474-3700
Email: echesler@cravath.com
Case 1:11-cv-02725-LGS Document 1210 Filed 06/03/22 Page 7 of 7
Hon. Lorna G. Schofield
April 7, 2022
Page 15
Email: korsini@cravath.com
Email: pbarbur@cravath.com
Email: rleraris@cravath.com
Counsel for Defendants Sabre Holdings Corporation, Sabre GLBL Inc., and Sabre Travel International Ltd.