Golden Unicorn Enterprises, Inc. v. Audible, Inc.

E NWI C K 401 Union Street 206.389.4510 5th Floor Fenwick.com Seattle, WA 98101 Brian D. Buckley [email protected] | 206.389.4515 August 18, 2023 VIA ECF The Honorable Jesse M. Furman Southern District of New York Centre Street, Room 2202 New York, NY 10007 Re: Golden Unicorn Enterprises, Inc. et al. v. Audible, Inc., Case No. 1:21-cv-07059-JMF Your Honor: Pursuant to the parties’ agreed-upon procedure (see ECF No. 282), Audible respectfully seeks leave to file sealed and redacted versions of its Supplemental Brief in Support of Audible’s Motion for Summary Judgment (“MSJ Suppl. Reply”). Further, pursuant to the parties’ procedure, Audible seeks to preliminary seal its MSJ Suppl. Reply pending Plaintiffs’ review and potential motion to seal or redact. See ECF No. 282.

As discussed in Audible’s letter-motion to seal and redact materials from Plaintiffs’ Motion for Class Certification (see ECF No. 144), although there is a presumption of public access, a court must balance “countervailing factors,” including privacy interests as well as confidential and proprietary business information. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006); Kewazinga Corp. v. Microsoft Corp., No. 1:18-cv-4500 (GHW), 2021 WL 1222122, at *4-6 (S.D.N.Y. Mar. 31, 2021); Lexington Furniture Indus., Inc. v. Lexington Co., AB, No. 19-CV-6239 (PKC), 2021 WL 1143694, at *2 (S.D.NY. Mar. 24, 2021).

Here, Audible seeks to redact confidential, sensitive business information, or information that could cause competitive harm. See ECF No. 144 (citing cases); see, e.g., Kewazinga, 2021 WL 1222122, at *4-6.

Audible seeks narrow redactions of internal information regarding returns and confidential internal business practices. These redactions seek to protect sensitive business information that, if made public, could threaten competitive harm. Audible’s proposed redactions on page 5-6 are the same redactions Audible sought in relation to Plaintiffs’ Statement of Undisputed Material Facts. See ECF Nos. 256, 263.

We are happy to provide any additional information that may be useful to the Court.

August 18, 2023 Page 2 Respectfully, FENWICK & WEST LLP /s/ Brian D. Buckley Brian D. Buckley cc: All counsel of record (via ECF) The motion to seal is granted temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of the Court is directed to terminate ECF No. 289 and modify access to ECF No. 290 to include all case participants.

SO ORDERED.

August 21, 2023