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Case 1:23-cv-06684-PKC Document 24 Filed 11/17/23 Page 1 of 2
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November 17, 2023 (A J Wo yo
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Honorabie P. Kevin Castel yt wr □□□
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United States District Court, Southern District of New York Ae □□
Daniel Patrick Moynihan United States Courthouse “ ye □□□
500 Pearl Street Oke □□□
Courtroom 11D b A - Koel A Her per
New York, NY 10007 2
Re: Brown v. Building Engines, Inc. fa cal □□
No. 1:23-cv-06684 (PKC) [Related to No. 1:21-cv-10893 (PKC) (SDA)] go □□ □
Dear Judge Castel: yo □□
We
We represent Defendant Building Engines, Inc. (Building Engines”) in the above-referenced ars □□
action, Pursuant to Rule 5,B of Your Honor’s Individual Practices in Civil Cases, Building Engines tv.
respectfully requests permission to file under seal two confidential Exhibits to its Motion to Dismiss □ □□
Plaintiff's First Amended Complaint, which is being filed simultaneously with this Letter Motion. □ □
Exhibit A, which was sealed in the related action (Case No. 1:21-cv-10893), is the Agreement and □□□ □□
Plan of Merger (“Merger Agreement”) executed by and between Building Engines, Emergent
Hudson Merger Sub, Inc., Emergent Properties Inc, d/b/a LagCheck (LogCheck”), and Plaintiff A?
Michael Brown (“Plaintiff"}. Exhibit B is the confidential employment agreement executed by and □ □ □ )
between Plaintiff and Building Engines (BE Offer”). Building Engines has conferred with Plaintiff, K f
and Plaintiff consents to this request to seal the Merger Agreement and the BE Offer. Ne ) G □
While “{t]here Is a common law presumption in favor of permitting public access to judicial □ □□ 4
documents,” a “court balances this common law presumption of access against competing ‘© □□
comparisons, including the ‘privacy interests of those resisting disclosure.” GoSMILE, Inc. v. a □□□ /
Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649 (S.D.N.Y. 2011) (citing Lugosch v. A □ K
Pyramid Co. of Onondaga, 435 F.3d 110, 119, 120 (2d Cir. 2006)). To that end, competitively f / □
sensitive information should be protected against public disclosure if disclosure would cause / 4 □
significant and irreparable competitive injury. See, ¢.g., Standard Inv. Chartered, Inc. v. Fin. // : a
Indus. Reg. Auth., 347 F. App'x 615, 617 (2d Cir, 2009) (finding that presumption of public acdéss /
was overcome when disclosure would subject a party to financial harm and cause significant \\
competitive disadvantage),
Courts routinely seal documents to prevent the disclosure of a party’s competitive and confidential
business information. See, eg., Rubik's Brand Ltd, v. Flambeau, Inc,, No. 17-CV-6559 (PGG)
(KHP}, 2021 WL 1085338, at *1 (S.D.N.Y, Mar. 22, 2021) (granting motions to seal contracts
Morgan, Lewis & Bockius LLP
2222 Market Street
Philadelphia, PA 19103 © +1.215.963.5000
United States @ +1,215.963.5001
Case 1:23-cv-06684-PKC Document 24 Filed 11/17/23 Page 2 of 2
Honorable P. Kevin Castel
November 17, 2023
Page 2
containing confidential information that risked competitive harm to the parties’ business); PDV
Sweeny, Inc. v. ConocoPhillips Co., No. 14-cv-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”).
Here, Building Engines seeks to seal the Merger Agreement and BE Offer because both contain
commercially-sensitive and confidential business information. The Merger Agreement includes
non-public, bargained-for terms, and the BE Offer contains non-public compensation and benefits
information. The disclosure of such information would likely result in future competitive harm to
Plaintiff, Building Engines, and Building Engines’ parent company, Jones Lang LaSalle, Inc. There
is no benefit to the public from disclosure of the confidential information sought to be sealed.
Thus, the competitive disadvantage that would result from not sealing the Merger Agreement and
BE Offer outweighs the interest of the public, including competitors, of viewing the Merger
Agreement’s specific terms. Lugosch, 435 F.3d at 120.
Accordingly, Building Engines respectfully requests, and Plaintiff does not oppose, that the Court □
grant its request to file Exhibits A and B to the Motion to Dismiss under seal. We thank the Court
for its attention to this matter.
Respectfully,
{sf Emily K. Wheeling
Emily K. Wheeling
cc: All Counsel of Record (via ECF)