The opinion
September 1, 2022
VIA ECF
The Honorable Lorna G. Schofield
United States District Judge
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, New York 10007
Re: Nypl, et al. v. JPMorgan Chase & Co., et al., Case No. 1:15-cv-9300 (LGS)
Dear Judge Schofield:
Pursuant to Rule I.D.3 of Your Honor’s Individual Rules and Procedures for Civil Cases,
the parties respectfully seek leave to file under seal limited portions of the papers in support of
and in opposition to defendants’ motion for summary judgment (the “Parties’ Submissions’) as
set forth below.
Certain portions of the Parties’ Submissions quote directly from or otherwise refer to
documents that have been designated as “Highly Confidential” under the Stipulation and Order
of Confidentiality (hereinafter the “Protective Order”) because they contain “material regarding
trading and investment strategies, pricing and cost information, customer lists, business strategy,
trade secrets and other commercial or financial information, the disclosure of which to another
Party or non-party would create a substantial risk of causing the Disclosing Party to suffer
significant competitive or commercial disadvantage... .” (ECF No. 249 at 2-3.) In particular,
these documents disclose confidential, proprietary information concerning how each bank sets
retail foreign exchange rates for the purchase of physical foreign currency at its retail branches in
the United States. Because the process used to set these rates reflects confidential pricing
information and sensitive business strategies, the parties respectfully request that it not be
disclosed publicly. (See ECF No. 597, July 20, 2020 Order (granting plaintiffs’ motion to seal
portions of a joint letter containing similar information for this reason).) The proposed
redactions in the Parties’ Submissions are narrowly tailored to ensure that the bulk of the Parties’
Submissions will be publicly available on the docket, and are consistent with the redactions
made in the parties’ papers in support of and in opposition to plaintiffs’ motion for class
certification and accompanying Daubert motions, which this Court permitted to be filed under
seal. See ECF No. 778 (Mar. 21, 2022 Order granting joint letter request to file under seal).
As the Court knows, the Second Circuit has recognized that the right of public access to
judicial documents is not absolute and “the court must balance competing considerations against
it.’ See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). For
instance, documents may be sealed where “closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” /d.; see also Nixon v. Warner Commc’ns., Inc., 435 U.S.
589, 599 (1978) (“[T]he decision as to access is one best left to the sound discretion of the trial
court, a discretion to be exercised in light of the relevant facts and circumstances of the particular
case.”). Cf Burke v. Glanz, No. 11-cv-720, 2013 WL 211096, at *4 (N.D. Okla. Jan. 18, 2013)
(“Courts should be wary of modifying a protective order where a party has complied with
discovery in reliance on the agreement.”).
Pursuant to Rule I.D.3 of Your Honor’s Individual Rules and Procedures of Civil Cases,
the parties have prepared highlighted versions of the Parties’ Submissions that they propose to
file in redacted form and in unredacted form under seal. The parties believe that these proposed
redactions strike the proper balance between public access to court documents and protection of
confidential business information. Further pursuant to Rule I.D.3 of Your Honor’s Individual
Rules and Procedures for Civil Cases, attached hereto as Appendix A 1s a list of all parties and
attorneys of record who should have access to the sealed documents.
Respectfully submitted,
ALIOTO LAW FIRM LAW OFFICES OF LINGEL H.
WINTERS, A Professional Corporation
By: s/ Joseph M. Alioto*
Joseph M. Alioto By: s/Lingel H. Winters*
Tom Pier Lingel H. Winters
Theresa D. Moore
Attorneys for Plaintiffs Attorney for Plaintiffs
Application GRANTED in part and DENIED in part without prejudice. To the extent the redactions
-- in the parties memoranda of law, Local Rule 56.1 statements and certain exhibits -- are
narrowly tailored to protect competitively sensitive information about how Defendant banks set
retail prices for foreign currency, Defendants’ interest in the confidentiality of that information
outweighs the presumption of public access in this instance. However, the parties have offered
no explanation for why they seek to redact information about how the government set the
amounts of fines imposed on certain Defendants, nor any justification for filing entire exhibits
under seal that cover topics other than the competitively sensitive information discussed above.
By February 10, 2023, each party shall file a renewed letter motion to seal, attaching more
lightly-redacted versions of any documents that can be filed in part on the public docket, and
specifically explaining why any remaining redactions are narrowly tailored to protect a
confidentiality or other interest that outweighs the presumption of public access.
In the meantime, the Clerk of Court is respectfully directed to maintain under seal all documents
currently filed under seal.
Dated: January 31, 2023
New York, New York
LORNA G. SCHOFIEL
UNITED STATES DISTRICT JUDGE
SHEARMAN & STERLING LLP SULLIVAN & CROMWELL LLP
By: s/ Adam S$. Hakki* By: s/ Matthew A. Schwartz*
Adam S. Hakki Matthew A. Schwartz
Richard F. Schwed Christopher J. Dunne
Jeffrey J. Resetarits Mark A. Popovsky
Maeghan O. Mikorski
Attorneys for Defendants Bank of America Attorneys for Defendants
Corporation and Bank of America, N.A. Barclays PLC and Barclays Capital Inc.
COVINGTON & BURLING LLP LOCKE LORD LLP
By: s/ Andrew A. Ruffino* By: s/ J. Matthew Goodin*
Andrew A. Ruffino Roger B. Cowie
Andrew D. Lazerow Gregory T. Casamento
J. Matthew Goodin
Julia C. Webb
Attorneys for Defendants Citicorp, Attorneys for Defendants HSBC Bank
Citigroup Inc. and Citibank N.A. USA, N.A. and HSBC North America
Holdings, Inc.
SKADDEN, ARPS, SLATE, DAVIS POLK & WARDWELL LLP
MEAGHER & FLOM LLP
By: s/ Boris Bershteyn By: s/ Paul S. Mishkin*
Boris Bershteyn Paul S. Mishkin
Peter S. Julian Charlotte M. Savino
Tansy Woan Eric M. Kim
Attorneys for Defendants JPMorgan Attorneys for Defendant The Royal
Chase & Co. and JPMorgan Chase Bank of Scotland plc, now known as
Bank, N.A. NatWest Markets Plc
GIBSON, DUNN & CRUTCHER LLP
By: Eric J. Stock*
Eric J. Stock
Melanie L. Katsur
Attorneys for Defendant UBS AG
*Signatures used with permission pursuant to S.D.N.Y. ECF Rule 8.5
APPENDIX A
Alioto Law Firm Law Offices of Lingel H. Winters
Joseph M. Alioto Lingel H. Winters
Thomas P. Pier
Attorneys for Plaintiffs Attorneys for Plaintiffs
Nedeau Law Firm Law Offices of Lawrence G. Papale
Christopher A Nedeau Lawrence Papale
Attorneys for Plaintiffs Attorneys for Plaintiffs
SHEARMAN & STERLING LLP SULLIVAN & CROMWELL LLP
Adam S. Hakki Matthew A. Schwartz
Richard F. Schwed Christopher J. Dunne
Jeffrey J. Resetarits Mark A. Popovsky
Maeghan O. Mikorski
Attorneys for Defendants Bank of America Attorneys for Defendants Barclays PLC and
Corporation and Bank of America, N.A. Barclays Capital Inc.
COVINGTON & BURLING LLP LOCKE LORD LLP
Andrew A. Ruffino Roger B. Cowie
Andrew D. Lazerow Gregory T. Casamento
J. Matthew Goodin
Julia C. Webb
Attorneys for Defendants Citicorp, Citigroup | Attorneys for Defendants HSBC Bank USA,
Inc. and Citibank N.A. N.A. and HSBC North America Holdings, Inc.
SKADDEN, ARPS, SLATE, DAVIS POLK & WARDWELL LLP
MEAGHER & FLOM LLP
Paul S. Mishkin
Boris Bershteyn Charlotte M. Savino
Peter S. Julian Eric M. Kim
Tansy Woan
Attorneys for Defendants JPMorgan Chase & | Attorneys for Defendant The Royal Bank of
Co. and JPMorgan Chase Bank, N.A Scotland plc, now known as NatWest Markets
Plie
GIBSON, DUNN & CRUTCHER LLP
Eric J. Stock
Melanie L. Katsur
Attorneys for Defendant UBS AG