McMorrow v. Mondelez International, Inc.

10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA PATRICK MCMORROW, et al., Case No. 17-cv-2327-BAS-JLB Plaintiffs, ORDER: 14 (1) GRANTING PLAINTIFFS’ MOTION TO SEAL (ECF 15 v. No. 138); 16 (2) GRANTING DEFENDANT’S MONDELĒZ INTERNATIONAL, MOTION TO SEAL (ECF 17 No. 144); AND INC., 18 (3) GRANTING PLAINTIFFS’ Defendant. MOTION TO SEAL (ECF 19 No. 158).

21 Pending before the Court are the parties’ motions to file documents under seal.

22 (ECF Nos. 138, 144, 158.) The Court GRANTS the motions.

24 I. BACKGROUND 25 Plaintiffs filed the present action against Mondelēz Global LLC (“MDLZ”), alleging that certain claims on MDLZ’s product packaging are misleading. (Second Amended Complaint, “SAC,” ECF No. 24, ¶ 114.) Plaintiffs moved to certify class, Court allowed the parties to file under seal certain related documents. (Sealing Order, ECF No. 115.)

3 Plaintiffs renewed their motion for class certification. (ECF No. 137.) The parties each filed Daubert motions to strike the expert testimonies filed in support of, or opposition to, class certification. (ECF Nos. 147, 148, 151, 158.) The parties now move to file under seal portions of motions, briefs, declarations, and/or exhibits filed in connection with Plaintiffs’ renewed motion for class certification and the parties’ Daubert motions. (ECF Nos. 138, 144, 158.) The parties’ motions to seal are suitable for determination on the papers submitted and without oral argument.

10 See Civ. L.R. 7.1(d)(1).

12 II. LEGAL STANDARD 13 “[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption of access is ‘based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).

24 A party seeking to seal a judicial record bears the burden of overcoming the strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden depends upon whether the documents to be sealed relate to a motion that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass the tangential relevance threshold, the “good cause” standard applies. Id. 4 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court records exists when such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal documents is “one best left to the sound discretion of the trial court” upon consideration of “the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599.

16 III. ANALYSIS 17 The parties move to seal portions of motions, briefs, declarations and/or exhibits in connection with Plaintiffs’ renewed motion for class certification and the parties’ Daubert motions. A motion for class certification is “more than tangentially related to the merits of [the] case,” and therefore “compelling reasons” must be shown to seal the documents attached thereto. See Krommenhock v. Post Foods, LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (applying the “compelling reasons” standard to class certification motion). Because the Daubert motions at issue are closely associated with the class certification motion, the Court will apply the “compelling reasons” standard to the motions to seal documents relevant to the Daubert motions. Cf. In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120–21 (9th Cir. 2012) (applying “compelling reasons” standard to 1 A. Plaintiffs’ Motion to Seal: ECF No. 138 2 Plaintiffs move to file under seal portions of their renewed motion for class certification and supporting declaration and exhibits. (Pls.’ Mot. to Seal, ECF No. 138.) Plaintiffs first seek to seal financial data purchased from a third-party marketing research company, IRI, which Plaintiffs’ expert witness, Colin B. Weir, discusses in his declaration filed in support of Plaintiffs’ renewed motion for class certification. (Weir Decl., ECF No. 137-3.) Plaintiffs state that Weir’s declaration “contains unit and dollar sales information Plaintiffs received from third party marketing research company IRI, which IRI designated ‘HIGHLY CONFIDENTIAL AEO [Attorneys’ Eyes Only],’ as well as damages figures calculated using that IRI data.” (Pls.’ Mot. to Seal at 4; Persinger Decl. ¶ 5, ECF No. 138-1.) Plaintiffs argue that disclosure of this information would harm IRI “by providing for free what IRI has expended resources collecting and charges its clients for” and would put it at a competitive disadvantage. (Pls.’ Mot. to Seal at 5; Persinger Decl. ¶ 5.) In a previous sealing order, the Court has allowed Plaintiffs to file under seal the same information from IRI. (Sealing Order at 4, ECF No. 115.) For the same reasons discussed in that Order, the Court finds compelling reasons to seal this information.

19 Plaintiffs also seek to seal Exhibits 1–2 to the Declaration of Paul K. Joseph in Support of Plaintiffs’ renewed motion for class certification. These documents, marked as MDLZ-00061486 and MDLZ-00086676, are Defendant’s marketing, advertising, and consumer research that Defendant has conducted in connection with the products at issue. In the previous sealing order, this Court allowed sealing Exhibit 1, MDLZ-00061486, finding that the research provided Defendant with a competitive advantage in the marketplace. (Sealing Order at 3–4, ECF No. 115.)

26 The same compelling reasons support sealing Exhibit 2, MDLZ-00086676, which is Defendant’s internal report summarizing research on marketing, advertising, and reasons to seal Exhibits 1–2 to the Declaration of Paul K. Joseph, marked as MDLZ- 00061486 and MDLZ-00086676. The Court also seals portions of Plaintiffs’ renewed motion for class certification that quote from and incorporate these documents.

5 The Court GRANTS Plaintiff’s motion (ECF No. 138) in full.

7 B. Defendant’s Motion to Seal: ECF No. 144 8 Defendant seeks to file under seal portions of its opposition to Plaintiffs’ renewed motion for class certification, its motion to exclude expert testimony, and various supporting exhibits. (ECF No. 144.) The exhibits Defendant seeks to seal are exhibits 16–20 to the Omnibus Declaration of Kate Spelman, which are a subset of the documents that this Court previous ordered to be maintained under seal.

13 (Sealing Order at 4–5, ECF No. 115.) In that Order, the Court found that the exhibits at issue constitute information that gives Defendant a competitive advantage. (Id. at 5.) Because Defendant’s present sealing request merely seeks to maintain the same documents under seal, the Court GRANTS Defendant’s motion (ECF No. 144) in full.

19 C. Plaintiffs’ Motion to Seal: ECF No. 158 20 Plaintiffs first seek to file under seal Exhibit 12 to the Fitzgerald Omnibus Declaration. Exhibit 12 is an internal MDLZ document, which “references internal marketing and consumer research that MDLZ conducted or commissioned in connection with the belVita products and/or statements challenged in this lawsuit.”

24 (Smith Decl., ECF No. 158-1 ¶ 2.) The Court’s review of Exhibit 12 confirms that it constitutes internal marketing research that gives MDLZ a competitive advantage.

26 The Court thus finds compelling reasons to maintain Exhibit 12 under seal.

27 Plaintiffs also seek to file under seal an unredacted copy of their reply brief ||about the documents that this Court sealed in a previous Sealing Order. Because ||compelling reasons support maintaining the underlying information under seal, the || Court will also allow sealing the portions of the reply brief that refers to the sealed || information.

5 Finally, Plaintiffs seek to file under seal their unredacted opposition to || MDLZ’s second motion to exclude the testimony of Plaintiffs’ expert witness, J.

7 ||Michael Dennis. Plaintiffs have filed a redacted copy of the opposition brief, || withholding from the public discussions of the contents of Exhibit 12 and a document ||marked MDLZ-64024, for which this Court has already found compelling reasons to ||maintain under seal. (See supraPart III.B.) Because the Court has found compelling ||reasons to seal the underlying information, the Court will allow Plaintiffs to maintain || under seal the portions of the opposition brief discussing that information.

13 The Court GRANTS Plaintiffs’ motion (ECF No. 158) in full.

15 ||IV. CONCLUSION 16 The Court GRANTS the parties’ motions to file documents under seal (ECF ||Nos. 138, 144, 158). The Court directs the Clerk of the Court to accept and FILE || UNDER SEAL the requested documents (ECF Nos. 139, 145, 167).

19 IT IS SO ORDERED.

21 ||DATED: February 10, 2021 ( if hig | Ly hak 22 sited Uiates District Judge