The opinion
Based on a spot check of select documents, the Court approves the par
requests to seal or redact, as the case may be. Within one week, the
parties shall ensure that the documents affected by the requests that ha’
October 5, 2023 been withdrawn are on the docket consistent with this endorsement --
. whether that is by re-filing the documents as modified or by filing a let
Via ECF advising the Court as to any document that can be unsealed in its entire
(which letter the Court can then so order). The Clerk of Court is direct
Honorable Jesse Furman to terminate ECF No. 463. SO RED
United States District Judge
Southern District of New York bu Se—
40 Centre Street, Room 2202
New York, New York 10007 October 12, 2023
Re: City of Philadelphia, et al. v. Bank of Am. Corp., et al., 19-cv-1608 (JMF)
Dear Judge Furman:
Pursuant to the Court’s Opinion and Order dated September 21, 2023 (Dkt. No. 456), the
parties jointly submit this letter regarding documents that any party (or third party) believes
should remain under seal or in redacted form. As acknowledged in prior letter motions
temporarily granted on December 5, 2022 (Dkt. No. 372), March 17, 2023 (Dkt. No. 401), May
19, 2023 (Dkt. No. 434), and June 22, 2023 (Dkt. No. 446), the parties’ respective justifications
for sealing or redacting those materials are made pursuant to Lugosch v. Pyramid Co. of
Onondaga and its progeny. See 435 F.3d 110, 119-20 (2d Cir. 2006) (holding that a district court
must “balance competing considerations” against disclosure such as “the privacy interests of
those resisting” it and the court may seal certain judicial documents where “specific, on the
record findings are made demonstrating that closure is essential to preserve higher values and is
narrowly tailored to serve that interest’) (internal citations and quotations omitted). While the
parties acknowledge that the materials to be redacted or sealed are judicial documents to which
the presumption of public access attaches, the parties jointly believe that in balancing the
competing considerations against the presumption of access, the Court should grant the parties’
motion.
Plaintiffs’ documents. As previously described in the prior letter motions, Plaintiffs have
submitted documents under seal or in redacted form because the documents contain:
(i) Damage and related figures from the expert reports of Plaintiffs’ expert Professor
William Schwert. See Dkt. No. 372 at 4; Dkt. No. 446 at 2 (citing Valelly, 2022
U.S. Dist. LEXIS 140126, at *3-4, which granted application to seal expert report
that contained, inter alia, the “financial implications of [the defendant bank’s]
rate decisions.”)
(ii) Commercially sensitive information of third parties collected during discovery
pursuant to document and deposition subpoenas. See Dkt. No. 372 at 3-4; Dkt.
No. 434 at 3-4 (citing Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d
152, 156-57 (S.D.N.Y. 2015), which found that sensitive personal information of
employees and third parties, as well as customer information regarding trading
strategies, objectives, and transactions, constitute the “type of information [that]
overcomes the presumption of public disclosure.”’)
(ii) Internal financial matters of the named Plaintiffs found in confidential discovery
material. See Dkt. No. 401 at 2-4; Dkt. No. 434 at 2 (citing New York vy. Actavis,
PLC, No. 14-CV 7473 (RWS), 2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21,
2014), which found that it is appropriate to seal commercially sensitive “business
information that might harm a litigant’s competitive standing.”)
Plaintiffs have grouped the documents that the Court temporarily granted to be filed
under seal or in redacted form into the following categories listed in Exhibit 1: Expert Damage
Calculations (Dkt. No. 372, 401, 434, and 446), Third Party CBI and Third Party Personal
Information (Dkt. No. 372, 401, and 434), CBI re: VRDO financial strategies and performance
(Dkt. No. 401) CBI re: Interest Rate Swap Agreement and Confidential Terms (Dkt. No. 401 and
434) and Commercially Sensitive Strategy and Compliance Information (Dkt. No. 434). The
parties have also agreed to remove certain redactions that Plaintiffs previously requested and
have indicated “Withdrawn” in the “Justification for Redaction or Sealing Request” column of
Exhibit 1.
Defendants’ documents. Defendants have also submitted documents under seal or in
redacted form because the documents contain:
(i) Confidential business information regarding Defendants’ specific internal
processes, procedures, and strategies, disclosure of which could harm Defendants’
competitive standing. See Dkt. No. 372 at 2 (citing New York v. Actavis, PLC,
No. 14-CV-7473 (RWS), 2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014); City
of Providence v. BATS Glob. Markets, Inc., No. 14-CV-2811 (JMF), 2022 WL
539438, at *2 (S.D.N.Y. Feb. 23, 2022).
(ii) Information concerning confidential government investigations that have not
been publicly disclosed by regulators. See Dkt. No. 401 at 4.
(iii) Commercially sensitive information from third parties collected during discovery
pursuant to document and deposition subpoenas. Defendants have contacted all
relevant third parties to request permission to file such materials publicly, and
have requested sealing or redactions only where permission was not granted. See
Dkt. No. 401 at 4–5.
Defendants have grouped the documents that the Court temporarily granted to be filed
under seal or in redacted form into the following categories listed in Exhibit 1: CBI re: Rate-
Setting Processes (Dkt. Nos. 372, 401, and 434), CBI re: Confidential Swap Agreements (Dkt.
No. 372), CBI re: Cost and Pricing (Dkt. No. 372), Commercially Sensitive Strategy and
Compliance Information (Dkt. Nos. 372 and 401), CBI re: Handling of Inventory (Dkt. Nos. 372,
401, and 434), CBI re: Client Development and Market Position (Dkt. Nos. 372, 401, and 434),
CBI re: Client Advice and Pricing (Dkt. No. 401), CBI re: Fees (Dkt. No. 401), Information re:
Confidential Government Investigations (Dkt. Nos. 401 and 434), CBI re: Inventory Costs (Dkt.
Nos. 401 and 434), Confidential Inventory Data (Dkt. No. 446), Redaction Requested by Third
Party (Dkt. No. 401), and Sealing Requested by Third Party (Dkt. No. 401).
Respectfully submitted,
/s/ Daniel L. Brockett /s/ David H. Wollmuth /s/ William Christopher
Daniel L. Brockett Quinn David H. Wollmuth Carmody
Emanuel Urquhart & Wollmuth Maher & William Christopher Carmody
Sullivan, LLP Deutsch LLP Susman Godfrey LLP
/s/ Robert D. Wick /s/ Michael P. Conway /s/ Noah Levine
Robert D. Wick Michael P. Conway Noah Levine
Covington & Burling LLP Jones Day Wilmer Cutler Pickering
Hale & Dorr LLP
Attorneys for Defendants Attorneys for Defendants
JPMorgan Chase Bank, N.A., Wells Fargo Bank, N.A., Attorneys for Defendants Bank
and J.P. Morgan Securities Wachovia Bank, N.A., Wells of America Corporation, Bank
LLC Fargo Funds Management, of America, N.A., and Merrill
LLC, and Wells Fargo Lynch, Pierce, Fenner & Smith
Securities LLC Incorporated (including as
successor in interest to Banc of
America Securities LLC)
/s/ Boris Bershteyn /s/ Susanna M. Buergel /s/ Robert Y. Sperling
Boris Bershteyn Susanna M. Buergel Robert Y. Sperling
Skadden, Arps, Slate, Paul, Weiss, Rifkind, Paul, Weiss, Rifkind, Wharton
Meagher & Flom LLP Wharton & Garrison LLP & Garrison LLP
Attorneys for Defendants Attorneys for Defendants Attorneys for Defendant
Barclays Bank PLC and Citigroup Inc., Citibank, Goldman Sachs & Co. LLC
Barclays Capital Inc. N.A., Citigroup Global
Markets Inc., and Citigroup
Global Markets Limited
/s/ Sergei Zaslavsky /s/ Adam S. Hakki
Sergei Zaslavsky Adam S. Hakki Shearman
O’Melveny & Myers LLP & Sterling LLP
Attorneys for Defendants The Attorneys for Defendants
Royal Bank of Canada and Morgan Stanley, Morgan
RBC Capital Markets, LLC Stanley Smith Barney LLC,
Morgan Stanley & Co. LLC,
Morgan Stanley Capital
Group Inc.
cc: All counsel of record (via ECF)