Miami Products & Chemical Co. v. Olin Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MIAMI PRODUCTS & CHEMICAL CO.,

On Behalf of Itself and All Others Similarly

Situated, et al.,

DECISION AND ORDER

Plaintiff,

1:19-CV-00385 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

AMREX CHEMICAL CO., INC.,

On Behalf of Itself and All Others Similarly

Situated,

Plaintiff,

1:19-CV-00386 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

MIDWEST RENEWABLE ENERGY, LLC,

On Behalf of Itself and All Others Similarly

Situated,

Plaintiff,

1:19-CV-00392 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

_____________________________________

MAIN POOL AND CHEMICAL CO., INC.,

On Behalf of Itself and All Others Similarly

Situated,

Plaintiff,

1:19-CV-00393 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

PERRY’S ICE CREAM COMPANY, INC.,

On Behalf of Itself and All Others Similarly

Situated,

Plaintiff,

1:19-CV-00403 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

THE TRIPP PLATING WORKS, INC., On

Behalf of Itself and All Others Similarly

Situated, et al.,

Plaintiffs,

1:19-CV-00975 EAW

v.

OLIN CORPORATION, et al.,

Defendants.

_____________________________________

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I. Motions to Seal

In these consolidated actions,1 there are currently 16 motions to seal pending. (Dkt.

551; Dkt. 553; Dkt; 554; Dkt. 556; Dkt. 558; Dkt, 568; Dkt. 569; Dkt. 571; Dkt. 578; Dkt.

580; Dkt. 582; Dkt. 589; Dkt. 591; Dkt. 593; Dkt. 598; Dkt. 600). The Court previously

issued a Decision and Order in which it denied several motions to seal, explaining that the

presumption of public access to judicial documents can be overcome only by a specific

showing that sealing is necessary to preserve higher values, and that requests for sealing

must be narrowly tailored. (See Dkt. 534 at 3 (citing Lugosch v. Pyramid Co. of Onondaga,

435 F.3d 110, 124 (2d Cir. 2006))).

The motion to seal filed at Dkt. 551 by the Indirect Purchaser Plaintiffs is, by its own

terms, a placeholder motion. (See Dkt. 551-1 at ¶ 7 (acknowledging the Court’s direction

that sealing requests must be narrowly tailored and indicating that the Indirect Purchaser

Plaintiffs “will confer with the other Parties and non-parties over the next few weeks to

determine which cited information, exhibits, or testimony in these papers that were

previously designated as Protected Material pursuant to the Protective Order can be

downgraded and made available for public viewing, and the Indirect Purchaser Plaintiffs

will file a renewed motion to seal at that time with less redacted versions of these papers, as

appropriate[.]”)). Further, the motion filed at Dkt. 551 seeks to seal solely on the basis of

confidentiality designations made under the terms of the governing Protective Order, which

1 Unless otherwise noted, all docket references herein refer to Civil Action No. 19-cv-

00385, which is the lead action.

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the Court has expressly held is insufficient to warrant sealing. (Dkt. 534 at 3-4). The Indirect

Purchaser Plaintiffs’ motion to seal filed at Dkt. 551 is accordingly denied.

The motions filed at Dkt. 553, Dkt. 554, and Dkt. 556 are renewed motions to seal

filed by the parties in response to the Court’s denial of their prior motions. The parties have

taken care in these motions to narrowly tailor their sealing requests and to support their

requests with specific information explaining why disclosure of the material that is to be

withheld from public view would harm their economic interests and—more importantly—

the economic interests of third parties. In particular, the material as to which sealing is

sought contains non-stale, confidential business information including pricing, customer

contract terms, and internal bidding strategies.

It is appropriate to permit redaction of “specific business information and strategies,

which, if revealed, may provide valuable insights into a company’s current business

practices that a competitor would seek to exploit.” Louis Vuitton Malletier S.A. v. Sunny

Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (quotation omitted); see also

Graczyk v. Verizon Commc’ns, Inc., No. 18 CIV. 6465 (PGG), 2020 WL 1435031, at *9

(S.D.N.Y. Mar. 24, 2020) (permitting redaction, in connection with motion for class

certification, of “sensitive financial information”); In re Digital Music Antitrust Litig., 321

F.R.D. 64, 82 n.1 (S.D.N.Y. 2017) (holding that “internal pricing strategies and competitive

pricing data [are] sufficiently sensitive to warrant redaction”). The Court accordingly grants

the renewed motions to seal filed at Dkt. 553, Dkt. 554, and Dkt. 556.

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The motion to seal filed at Dkt. 558 by the Direct Purchaser Plaintiffs seeks to seal

the entirety of the expert sur-rebuttal report of Dr. Russell Lamb on the basis that “counsel

for the Defendants and certain non-parties designated information contained within the

Report accompanying this declaration for which sealing is sought either

‘CONFIDENTIAL,’ ‘HIGHLY CONFIDENTIAL’ or ‘OUTSIDE COUNSEL EYES

ONLY’ under the terms of the Protective Order entered by the Court[.]” (Dkt. 558-1 at ¶ 4).

This is insufficient to satisfy the rigorous requirements for sealing and Dkt. 558 is

accordingly denied.

The motions to seal filed at Dkt. 568, Dkt. 569, Dkt. 571, Dkt. 578, Dkt. 580, Dkt.

582, Dkt. 589, Dkt. 591, Dkt. 593, Dkt. 598, and Dkt. 600 incorporate and rely upon the

arguments and submissions made in connection with Dkt. 553, Dkt. 554, and Dkt. 556.

Accordingly, they are granted to the extent that they seek to redact the information identified

in Dkt. 553, Dkt. 554, and Dkt. 556, for the reasons discussed above. However, to the extent

these motions seek to redact “substantially similar” information (see, e.g., Dkt 568-1 at ¶ 6;

Dkt. 593-1 at ¶ 5; Dkt. 598-1 at ¶ 6) to the information identified in Dkt. 553, Dkt. 554, and

Dkt. 556, they are denied. The parties have not identified the purportedly “substantially

similar” information they seek to redact, nor explained how or why it is “substantially

similar” to the information identified in Dkt. 553, Dkt. 554, and Dkt. 556. A vague assurance

that information is “substantially similar” to the identified confidential business information

is not sufficient to satisfy the standard for sealing.

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Within 14 days of entry of this Decision and Order and consistent herewith, the

parties must file on the public docket redacted versions of the documents as to which sealing

has been granted. For ease of reference, the Court shall also require the parties to re-file any

related motion papers as to which sealing was not sought or as to which sealing has been

denied, except that the parties are not required to re-file any notices of motion. The re-filing

shall proceed as follows:

First, the following motions and all associated papers excluding the notices of motion

shall be re-filed, in the following order: Dkt. 474 (Direct Purchaser Plaintiffs’ motion for

class certification); Dkt. 514 (Indirect Purchaser Plaintiffs’ motion for class certification);

Dkt. 567 (Shintech Inc.’s motion to exclude certain opinions of Dr. Russell Lamb); Dkt. 570

(Direct Purchaser Plaintiffs’ motion to strike and to exclude testimony of Dr. John H.

Johnson, IV); Dkt. 572 (Formosa Plastics Corporation, U.S.A.’s motion to partially exclude

Dr. Lamb’s opinions); Dkt. 573 (Defendants’ joint motion to partially exclude Dr. Lamb’s

opinions and proposed testimony); Dkt. 588 (Shintech Inc.’s motion to strike and exclude

certain opinions of Dr. Gareth Macartney); Dkt. 590 (Defendants’ joint motion to strike and

exclude certain opinions of Dr. Macartney); Dkt. 592 (Indirect Purchaser Plaintiffs’ motion

to strike and exclude opinions and testimony of Dr. Johnson); and Dkt. 594 (Formosa

Plastics Corporation, U.S.A.’s motion to strike/partially exclude Dr. Macartney’s opinions).

The parties shall not file these documents using the “Motion” event in CM/ECF, but shall

instead use the “Memorandum in Support of Motion” event—found in the “Responses and

Replies” menu—for the main document. Each main document and all attachments thereto

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shall be named to clearly state what the document is and what original docket number it

represents (e.g., “MEMORANDUM in Support re [474] Motion to Certify Class (Re-filed

version of Dkt. 474-3)”).

Second, after the above-listed motions have been re-filed, the parties shall re-file their

responses thereto, to the extent that they have previously been filed on the docket. Again,

each main document and all attachments thereto shall be named to clearly state what the

document is and what original docket number it represents. The responses shall be re-filed

in an order that corresponds to the order in which the motions have been re-filed (i.e.,

responses to Dkt. 474 shall be filed first, then responses to Dkt. 514, and so forth).

Third, after the responses have been re-filed, the parties shall re-file their replies, to

the extent they have previously been filed on the docket. Once again, each main document

and all attachments thereto shall be named to clearly state what the document is and what

original docket number it represents, and the replies shall be re-filed in an order that

corresponds to the order in which the motions have been re-filed.

It is the parties’ responsibility to coordinate the re-filing of these documents to

comport with the Court’s Order and to do so within the time frame ordered by the

Court. After the motion papers have been refiled, the parties shall send to the Court a single

flash drive containing unredacted PDFs of all documents as to which sealing has been

granted. Each PDF shall be named using the following convention: Unredacted Version of

Dkt __.pdf.

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II. Timing of and Procedures for Evidentiary Hearing

Direct Purchaser Plaintiffs and Defendants dispute the need for an evidentiary hearing

on Direct Purchaser Plaintiffs’ motion for class certification and the associated Daubert

motions. Having carefully considered the parties’ positions, as well as its own need for such

a hearing, the Court has determined that it will hold an evidentiary hearing on June 5 and 6,

2023, with the following schedule: Beginning at 9:00 a.m. on June 5, 2023, the Court will

hold a concurrent expert proceeding wherein the Court will ask questions and each side’s

expert will be given an opportunity to respond. The concurrent expert proceeding portion

of the evidentiary hearing will continue until the Court has exhausted its questions. Once

the Court’s questioning is completed, the Court will allow cross-examination and re-direct

examination by counsel of each side’s expert witness.2 There will be a strict time limit of

no more than 1.5 hours for cross-examination and 1.5 hours of re-direct examination per

side (that is, up to 1.5 hours for Direct Purchaser Plaintiffs collectively and up to 1.5 hours

for Defendants collectively) as to each expert. It is the parties on each side’s responsibility

to determine how the allocated time shall be divided up among the attorneys. If agreement

is unable to be reached in that regard, the allocated time shall be divided proportionally by

the number of parties on that side. Depending on the start time and ultimate length of the

2 The Court’s questioning of the experts shall obviate the need for direct examination,

and thus the parties’ questioning shall begin with cross-examination. Once the parties’

questioning of the experts commences, the examinations will no longer be concurrent.

Direct Purchaser Plaintiffs’ expert will be questioned first (cross-examination and redirect),

followed by Defendants’ expert.

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cross-examination and redirect questioning by counsel on June 5, 2023, that portion of the

evidentiary hearing may continue into June 6, 2023. The Court intends to conclude the

proceeding on June 5, 2023, by 5:00 p.m., and continue the proceeding beginning at 9:00

a.m. on June 6, 2023.

Finally, once the examination of the expert witnesses is completed, the Court will

hear up to a total of 3 hours of argument regarding Direct Purchaser Plaintiffs’ motion for

class certification and the associated Daubert motions. It is anticipated that this argument

will commence on June 6, 2023, no earlier than 9:00 a.m. Each side will be allocated 1.5

hours of argument, and Direct Purchaser Plaintiffs may reserve whatever portion of that time

for rebuttal they deem appropriate. Again, it is the parties’ responsibility to determine which

attorneys shall present the argument and how much time shall be allocated to each.

Defendants’ motion for a hearing regarding class certification (Dkt. 517) is denied to the

extent it seeks relief beyond that contemplated by this Decision and Order.

The evidentiary hearing will be held at the federal courthouse at 100 State Street,

Rochester, New York 14614.

SO ORDERED.

_________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: April 25, 2023

Rochester, New York

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